Picking up the shotgun shells

Much has been made of the fact that no shotgun shells were found in the den where Jose and Kitty Menendez were shotgunned to death. Lyle and Erik both testified in their first trials (and Erik in the retrial, see testimony below) that they went back into the den minutes after the shooting ended and picked up the shells because they contained incriminating fingerprints. A defense expert witness, Dr. Ann Burgess, testified that the fact that the shells had been picked up indicated post-crime planning rather than premeditation before the crime. The defense argued that if the brothers had planned the crime they could simply have worn gloves to avoid leaving fingerprints in the first place.

In my opinion it can be argued both ways. It could be something the brothers had discussed beforehand. Also, just because the brothers claim that after the shooting ended they waited several minutes for the police to show up, that doesn’t mean that is what happened. Just because they say so doesn’t make it so. We don’t know for a fact that they waited more than mere seconds before picking up the shotgun shells, regardless of the reason.

But perhaps being worried about fingerprints is not the real reason the Menendez brothers picked up the shotgun shells. In the opening phase of closing argument, prosecutor David Conn argued that there was a different reason why the brothers picked up the shells:
The reason that they picked up those shotgun shells was not so much because of fingerprints, but because he [Lyle] didn’t know whether or not you can trace the shotgun shells back to the shotgun. It was just one more piece of evidence against him that he didn’t want to leave at the crime scene, even though they had purchased the guns anonymously for all practical purposes. If you can trace the shotgun shells back to the shotgun, there might be a way of eventually getting back to the sale of this particular firearm, the false identification of Donovan Goodreau, and eventually getting back to him and his brother, Erik Menendez.
So the fact that they took the time and the trouble to pick up the shotgun shells in this case does not prove that they were concerned about fingerprints, although maybe they were, and maybe they weren’t. Who knows?
One of the reason why they picked up those shotgun shells is they were concerned that it could be traced back to the particular shotguns that they had purchased.

The relevant testimony and argument from the retrial is as follows:
October 25, 1995: Richard Wenskoski – Direct examination
December 12, 1995: Erik Menendez – Direct examination
January 3, 1996: Erik Menendez – Cross-examination
January 8, 1996: Erik Menendez – Redirect examination
January 9, 1996: Erik Menendez – Recross-examination
February 21, 1996: Prosecution’s opening argument
February 23, 1996: Prosecution’s opening argument
February 26, 1996: Erik’s closing argument