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| David Postel |
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| Sarina Nezhadian |
It started with Ryan Murphy’s controversial and highly dramatized anthology series about the two, Monsters. Next came the aptly titled Netflix documentary The Menendez Brothers. And, most recently, the L.A. District Attorney announced he would move have the brothers resentenced. One aspiring California attorney (Kim Kardashian) spoke out in favour of the D.A.’s decision and commended his efforts at “righting a significant wrong.”
If any of this isn’t ringing a bell or if you just can’t get enough about the brothers’ case, keep reading. This article is for you.
What’s this all about again?
On a warm August night in 1989, Lyle (then 21) and Erik (then 18) entered their family’s Beverly Hills mansion and opened fire on their parents, fatally shooting their mother, Kitty, nine times and their father, Jose, four times. Kitty and Jose had been eating and watching TV from the couch.
Police initially suspected the murders were business- or organized crime-related, given Jose’s high-profile connections in the entertainment industry. Attention soon turned to the brothers, though, after they embarked on a conspicuous spree of spending and partying.
The investigation broke open with a tip from the girlfriend of the brothers’ psychologist. She revealed that the psychologist had recordings of sessions where the brothers confessed to the murders.
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Both brothers testified about their fear of their parents. While Lyle admitted that Jose stopped sexually abusing him when he was eight, Erik said that it ended only with Jose’s death. Lyle testified that Kitty also sexually abused him when he was 11 and 12. More particularly, Erik testified that when Lyle confronted Jose about the abuse days before the murder, Jose dismissed him with threats and caused the brothers to fear for their lives.
Several relatives gave evidence tending to support the brothers’ allegations. One testified that Lyle had told her that Jose would come into his room and touch his genitals at night while he was in bed. Another testimony was about a rule in the Menendez home that when Jose was in the bedroom with one of the boys, nobody was allowed to walk down the hallway past it.
The trial judge gave a jury instruction on self-defence based on this, but neither jury (there was one for each brother) could reach a consensus, resulting in a mistrial.
The prosecution elected to retry the case. There were two key differences between the trials.
First, Lyle did not testify at the retrial.
Second, and more importantly, the prosecution successfully argued at the retrial that much of the “source evidence” explaining the brothers’ fear of their parents was either cumulative or lacked foundation. This included testimony from family and friends detailing specific instances of abuse as well as expert testimony on the abuse’s impact. Consequently, the judge presiding over the retrial ruled that the brothers failed to lay a foundation to support that they killed in an honest but unreasonable belief in the need for self-defence.
The jury, in turn, found both brothers guilty of the first-degree murders of their parents. The brothers were then sentenced to life imprisonment without the possibility of parole. The California Court of Appeal upheld the convictions, and the California Supreme Court declined to review the case. The brothers’ federal habeas petitions were also dismissed.
Has Canada seen a similar case?
A 2003 decision from the Ontario Court of Appeal, R. v. Rochon, [2003] O.J. No. 1155, is close.
It explored the defendant Rochon’s claim of self-defence in the murder of his stepfather, William McAuley. McAuley was, according to the defence “a heavy drinker who frequently and brutally beat his wife … and her three children, including Rochon.” He had been found dead at his home after being stabbed with a knife and beaten with a baseball bat.
Rochon’s mother called him the morning of the crime and said that McAuley hit her during an argument. Rochon decided to confront McAuley about the abuse and went to his home to do so. (This was despite McAuley’s threat that he would kill Rochon if he ever set foot in the house again.) At the house, after McAuley lunged at Rochon, a co-accused who was also there struck McAuley with a bat. Rochon then did so as well and “continued to strike him in a blind rage.” Though he did not recall stabbing McCauley, Rochon remembered pulling a knife out of his chest.
At trial, the Crown argued that Rochon and his mother conspired to kill McCauley (and make it look like a break-in) to collect on an insurance policy that Rochon’s mother had taken out for McCauley three days before the murder. Rochon, in contrast, claimed self-defence: that McAuley assaulted him at the house and that he defended himself appropriately in view of McAuley’s history of violence and threats.
Ultimately, the jury found Rochon guilty of first-degree murder, the Court of Appeal affirmed and Rochon received the mandatory sentence of life imprisonment without parole for 25 years. Mandatory sentences can be blunt instruments.
Would the brothers have received a sentence of life without parole in Canada?
Not under current law.
Though the Criminal Code sets a mandatory minimum sentence of life imprisonment for first-degree murder, defendants convicted of first-degree murder are eligible for parole after having served 25 years of a sentence.
This even includes defendants convicted of multiple murders following the Supreme Court of Canada’s 2022 decision in R. v. Bissonnette, [2022] S.C.J. No. 23, where the court struck down a Criminal Code provision allowing courts to impose consecutive 25-year parole ineligibility periods for multiple murders as cruel and unusual. That provision, the court explained, authorized “a degrading punishment that is incompatible with human dignity” because it deprived affected defendants “of any possibility of reintegration into society.” Still, the court was careful to note that [e]ligibility for parole is not a right to parole,” adding, “experience has shown that the [Parole] Board generally proceeds with care and caution before making a decision as important as releasing multiple murderers back into society.”
How can the D.A. move to have the brothers resentenced?
California’s penal code allows a district attorney to recommend resentencing at almost any time during a defendant’s time serving a sentence in custody. On a D.A.’s recommendation, the court may, “in the interest of justice,” reduce a defendant’s term of imprisonment, including by vacating a defendant’s conviction, entering judgment for a lesser-included offence, and sentencing the defendant for that offence. The penal code instructs a court to, in exercising this power, consider various postconviction factors, including the “record of rehabilitation of the defendant,” and biographical factors like whether the defendant has experienced trauma or whether the defendant was “a youth” (i.e., under 26 years of age) at the time of the offence. The penal code also establishes a “presumption favouring recall” that is rebuttable only on a finding that the defendant “poses an unreasonable risk of danger to public safety.” It is a commendable piece of legislation.
Why is the D.A. doing this?
The D.A., George Gascón, announced his decision while, according to The New York Times, “fighting for re-election in a tough race that has him far down in the polls,” prompting criticism that Gascón made the decision for media attention. (Gascón has since lost his bid for re-election.) Yet the decision, as the Times reported, “fits within his progressive agenda of offering leniency to young offenders … and reviewing decades-old sentences he believes were unduly harsh.”
More to the point, the D.A.’s brief in support of the motion paints a clear picture of the brothers’ “exceptional post-conviction conduct” and of how the brothers “no longer present a public safety risk.” In particular, the brief
- argues that, given each brother’s respective age, the brothers pose a reduced risk of violence;
- states that the brothers were youthful (if not youths, per se) at the time of the offence while observing that “incomplete brain development renders youth less capable of conforming conduct to that required by law” and “key features of the brain continue to undergo significant changes throughout a person’s 20s”;
- notes the evidence from the brothers and the statements of others concerning their parents’ abuse; and
- documents, at length, the brothers’ behaviour during their sentence, especially with respect to their self-improvement and their contributions to others within the prison community (everything from, in Erik’s case, co-founding a group to provide support for elderly and disabled incarcerated people to, in Lyle’s, spearheading a project to “better his fellow inmates’ quality of life” by beautifying the prison).
The brief adds that, aside from all this, penology has changed in the years since the brothers were sentenced. Public safety is not, as previously believed, “best achieved through overly harsh punishments that ignore rehabilitation” but instead “through a combination of punishment, rehabilitation, restorative justice and proportionality.”
Taking all this into account, the brief concludes, “Erik and Lyle Menendez both deserve a lesser sentence.”
Can a Crown attorney in Canada similarly move for resentencing?
The Supreme Court of Canada has emphasized that “rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world.” Still, the Criminal Code does not contain provisions similar to those relied on by the D.A. in the Menendez case. This may, in part, be because parole is available for any offence under the Criminal Code.
Typically, then, a defendant can only secure early release outside of parole through “the Royal Prerogative of Mercy”: a pardon. Though the prerogative is technically unfettered, it is, by convention reflected in ministerial guidelines, intended for circumstances where “consideration of justice, humanity and compassion override[s] the normal administration of justice” and where “all other available legal avenues for relief have been exhausted or when recourse to them would result in greater hardship including.”
Separately, the Criminal Code contains provisions for defendants convicted of murder or high treason who have served 15 years to apply for a reduction in the period of ineligibility for parole while serving a sentence. These provisions, however, are not available for defendants convicted of those offences after Dec. 2, 2011.
You’re still here?! Want to know what we think?
In the end, the Menendez brothers show us how far rehabilitation and redemption can go, even in the most extreme cases. Despite facing life without parole, the brothers committed to bettering themselves and serving those around them in the prison community without any entitlement to release in exchange.
At least as reflected in the resentencing statute, California law — consistent with Canadian principles — acknowledges the value of a holistic approach to sentencing over one with an undue emphasis on punishment. This holistic approach, in the brothers’ case, is to society’s benefit. As the D.A. noted in his motion papers, Erik and Lyle “have done a tremendous amount of self-work while in custody and are now able to use their lived experience to support and help their communities” beyond the prison walls. If past is prologue, they can be expected to do so.
We hope that others in a position like Lyle and Erik will see from all this that a life sentence does not end a life’s purpose and that our lawmakers, judges and law enforcement will see that a person’s worst day in the past does not prevent them from becoming their best selves in the future.
David Postel is a civil litigation associate at Henein Hutchison Robitaille LLP, where he has a diverse practice in all manner of contract, employment, estates and tort-related litigation. Postel’s practice has included criminal appellate work, but he now leaves criminal law to his more able colleagues.
Sarina Nezhadian is a civil litigation associate at Henein Hutchison Robitaille LLP where she has a diverse practice area including entertainment law, with additional focus on criminal and regulatory matters. Nezhadian has a keen interest in film and television and enjoys exploring the intersection of creative works and the law.
The authors thank their articling student Brendan Alexander for his assistance with research for this piece.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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