Will the Menendez brothers be released? How the parole board, the governor and a new district attorney could change things

Los Angeles County Dist. Atty. George Gascón’s blockbuster announcement that he will try to have Erik and Lyle Menendez re-convicted for the brutal murders of their parents, marking the first time the brothers have had hope of leaving prison since their convictions nearly three decades ago.

It is also simply the first step in a long process.

While Thursday’s announcement drew praise from the brothers’ celebrity supporters and loved ones — and condemnation from critics who think Gascón is planning an October surprise to increase his landmark re-election bid — The brothers’ hopes for release still hinge on decisions by a series of arbitrators: an LA County judge, the state parole board, Gov. Gavin Newsom and the possible inauguration of a new district attorney in December.

The brothers were convicted in 1996 of special circumstances murder in the brutal killing of their parents, Jose and Kitty Menendez, in their Beverly Hills home. The only penalties for this crime under California law are death or life in prison without parole. But on Thursday, Gascón said he would seek to have them re-sentenced on a simple murder charge, which would make them eligible for parole because the killings were committed when the brothers were under 26 years old.

In a 57-page motion made public late Thursday, Gascón prosecutors argued that the brothers no longer pose a threat to public safety and should be released given their exemplary behavior while in custody.

Both brothers married and earned college degrees while in prison, according to the motion, and started programs that benefited other inmates, including meditation groups and a “green space” project. Corrections staff rarely had to discipline them, with only one allegation of violence made against both brothers in their nearly three decades in prison, according to the motion.

In recent months, a lot of attention has been paid to the brothers’ case aimed at a habeas movement try to undo their beliefs. Attorney Mark Geragos has come forward with new documentation to corroborate the brothers’ claims that the killings were motivated by years of sexual abuse by their father. During their trial, prosecutors alleged that Erik and Lyle killed their parents to gain early access to their inheritance.

But legal experts say the brothers may have a more direct path to freedom through revenge.

“Assuming that they have complied with the rules, and that they have been in custody for that long and that they have only committed minor offenses, that would fit the profile of someone who would be eligible to reoffend,” said Laurie Levenson , professor at the University of California. Loyola Law School in Los Angeles and former federal prosecutor.

Veteran Los Angeles County Superior Court Judge William Ryan will review the case later this year. He could grant the petition immediately, but it’s more likely he’ll hold a hearing where many of the family’s loved ones could speak, along with prosecutors who oppose Gascón’s decision.

Gascón acknowledged Thursday that there was no “universal agreement” on the case in his office, with some prosecutors pushing back against the idea that the brothers should be resentenced. Another faction in the office had pushed Gascón to sentence the brothers to manslaughter, which would have made them eligible for immediate release if Ryan had granted the petition, according to two sources with direct knowledge of Gascón’s thinking.

The sources requested anonymity to discuss the matter candidly. Experts said this move may have been a bridge too far for Ryan and could backfire.

“Gascón’s decision was probably the safest path he could have taken,” Levenson said.

If Ryan grants the petition, the state parole board would intervene. Kathy Cady, a former prosecutor turned victims’ rights attorney who represents Kitty Menendez’s eldest brother, said the parole board tends to approve releases when an inmate’s record is virtually spotless. what is in the motion.

As of Oct. 23, the board granted parole in about 31% of the cases it heard and decided on this year, according to to data from the California Department of Corrections and Rehabilitation.

Even then, Newsom could reject the parole board’s findings. Under California law, the governor can block the board’s decision to grant parole if he finds evidence that the brothers’ release posed an “unreasonable risk to the public.”

Newsom has blocked the release of several high-profile suspects in California’s prison system. including Sirhan Sirhan, the murderer convicted of the assassination of Robert F. Kennedy in Los Angeles. He too blocked the release of Charles Manson enthusiast Leslie Van Houten on three separate occasions before evading an appeals court decision last year.

A spokesperson for Newsom referred questions about the Menendez brothers to the corrections department.

Attorney Nancy Tetreault, who represented Van Houten, said she believes Newsom will block the brothers’ release because of the intense media attention on the case. Doing so would lead to a lengthy court battle, she said.

“If you have a high-profile client, you can expect several parole hearings because I know from experience that the governor is likely to reverse the parole,” she said. “If that happens, you need to go to the Court of Appeals and show why the governor is wrong.”

Gascón’s decision could also be reversed if he is no longer in office by the time the trial plays out in court. Some polls show Gascón’s challenger in the November election, former federal prosecutor Nathan Hochman, with a lead of as much as 30 points among likely voters. Hochman has not taken a public position on the Menendez case but has said he plans to review the decision if he ousts Gascón.

“In that specific case, I would analyze the thousands of pages of confidential prison records, the transcripts of both trials and the voluminous evidence, as well as speak with prosecutors, law enforcement, attorneys, experts and family members of the victims,” he said in a statement. “Only at that point would I be able to properly assess whether the request for retention is correct.”

However, Levenson said it is unlikely that Hochman could intervene if Ryan grants the recusal petition before Gascón leaves office.

Times Staff Writer Salvador Hernandez contributed to this report.

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This story originally appeared in Los Angeles Times.