Berries and ice cream

Over the years, many media outlets have stated that Jose and Kitty Menendez were eating strawberries and ice cream when they were shot. While it certainly is possible that they were eating around the time of their death, it seems to be a virtual impossibility that either of them was holding a glass at the exact moment the shooting occurred.

In the first trial, Detective Leslie Zoeller testified that he saw traces of food inside a glass on the coffee table. Zoeller formed the opinion that it was traces of blueberry and whipcream. See trial video 58 at 9:18 – 12:57.

In the second trial, prosecutor David Conn stated in the prosecution’s opening statement:
We will show, ladies and gentlemen, that August the 20th of 1989 was a Sunday, and on that Sunday, as Kitty and Jose Menendez were watching television, sitting together on the sofa — they had just finished eating berries and whipped cream — dessert glasses — and the evidence will show that dessert glasses were still in the area near them. One was on the coffee table sitting right in front of them. The other one was on the countertop in the kitchen nearby.

To support their claim, the prosecution called Leslie Zoeller to the witness stand. His testimony, in pertinent part, is as follows:
October 12, 1995: Leslie Zoeller – Direct examination
October 16, 1995: Leslie Zoeller – Cross-examination

Whether Zoeller’s eyewitness account as to the contents of the glasses is persuasive is open to debate. Obviously, who ate; what they ate; when they ate, are not the decisive factors in determining the Menendez brothers’ mental state at the time the shooting occurred, which was the legal issue the jury had to resolve. Regardless of the contents of the glasses, assuming for the sake of argument that it was Jose and Kitty who had consumed the contents, it would seem that there is no way to prove that they had “just finished” eating. Sure, it could have been a half dozen minutes prior to the shooting, but it could also have been many hours or even days before.

The strawberries-and-ice-cream story, according to Erik Menendez’s attorney Leslie Abramson’s autobiography, “The Defense Is Ready”, originated from someone in the coroner’s office “who told it to the press in the week following the shootings.”

Dominick Dunne, who wrote a series of articles about the Menendez case for Vanity Fair magazine, mentioned it in his October 1990 article titled “Nightmare on Elm Drive”. He repeated it in an October 1993 article titled “The Menendez Murder Trial”. This latter article was published after Leslie Zoeller had testified in the first trial but, rightly or wrongly, that didn’t stop Dunne from repeating the story.

Abramson writes in her autobiography that what she calls the “strawberries-and-ice-cream fable” made its way from Dunne’s article “into the stories of the inept Los Angeles Times reporter who covered the case, and from there to everywhere under the electronic sun.”

That is not an overstatement. In addition to newspaper articles, the strawberries-and-ice-cream story is mentioned in both of the 1994 true crime books “Blood Brothers” and “Bad Blood.”
In both of the 1994 made-for-TV movies about the case there’s a scene depicting the parents eating right before being shot.
Even in recent years where the Menendez case has seen a resurgence through a handful of documentaries, a TV movie, and most significantly the Law & Order True Crime series, many media outlets still repeat the strawberries-and-ice-cream story as fact.

The prosecution’s star witness in the retrial, Roger McCarthy, who made a computerized reconstruction of the shooting, was under the impression that it was “uncontroverted” that a couple of dishes of ice cream was on the coffee table.