Why did Lyle not testify in the second trial?

In the Menendez brothers’ second trial, Erik Menendez spent 15 days on the witness stand. Lyle Menendez chose not to testify.

In a June 1996 interview with Barbara Walters, Lyle was asked why he didn’t testify in the second trial. Lyle replied: “We had been through so much at that point emotionally. Unless it was incredibly necessary I did not want to go through it again.”

In the 1996 documentary “American Justice: The Menendez Murders,” Lyle’s lead counsel in the second trial, Charles Gessler, said: “Erik had promised him, ‘You’ll never have to do this again,’ after the first trial. Lyle Menendez took no joy in bringing these things to the public attention. He had to in the first trial. It did not seem necessary in the second trial. It seemed duplicative.”

Erik Menendez testified on cross-examination in the second trial (Dec. 18, 1995):
“For many years there was a struggle between my brother and I, I guess for two years, about whether we would talk about specifically the molestation, and him not wanting to to the extreme, and going to great efforts to avoid that, and me trying pressure him, trying to knock some sense into him saying that this is what we have to do, and trying to get him into therapy and seeing different people so that he would feel freer…. It was difficult [for Lyle to testify about the molestation], and I told him that I was sorry that I pressured him into doing it, and that I would never do that again.”

In the book “The Menendez Murders,” author Robert Rand writes (page 309) that “Lyle told me he didn’t want to testify without Jill Lansing.” (Lansing had been Lyle’s lead counsel in the first trial.)

An entirely different explanation for Lyle’s decision not to testify could be that he, and his attorneys, feared his credibility would be destroyed when he would be confronted with highly damaging impeachment evidence.

After the first trial prosecutors learned that Lyle had written letters to two friends, Traci Baker and Amir Eslaminia, asking them to fabricate evidence. The Eslaminia letter was introduced during the prosecution’s case-in-chief in the second trial, but the trial court ruled that the Baker letter wouldn’t be admissible in the prosecution’s case-in-chief, but was material that could be used in impeachment of Lyle if he testified.

The prosecution also had tape recordings from Norma Novelli, who had had a friendship with Lyle and taped their phone conversations. The prosecution wanted to introduce tape No. 25 as evidence in their case-in-chief in the second trial. The content of that tape involves statements of Lyle related to certain testimony of Dr. Oziel during the first trial while Oziel was still testifying. On the tape Lyle talks of having to fabricate a story about being blackmailed by Oziel. Although there’s no evidence that Lyle did anything to follow through on the discussion contained in the tape, it does demonstrate a willingness on his part to fabricate evidence. (A transcript of this conversation between Lyle and Norma Novelli can be found in Novelli’s book “The Private Diary of Lyle Menendez,” pp. 135-144.)

The trial court ruled that, since the prosecution wasn’t going to call Oziel as a witness in the second trial, tape No. 25 wouldn’t be admissible in the prosecution’s case-in-chief. The trial court stated that the ruling “only applies to the prosecution’s offer of this evidence in their case-in-chief…. This evidence could be the subject of a new offer by the prosecution in rebuttal for purpose of impeachment.”

Tape No. 25 was the only Novelli tape the prosecution sought to introduce in their case-in-chief. However, during a hearing on the Erik Menendez defense’s request to play for the jury the videotapes of Lyle’s former testimony from the first trial, the prosecution indicated that their “impeaching material…may well exceed the material that we intended to present in our case-in-chief.” (The prosecution didn’t specify what material from the Novelli tapes they would have used as impeachment evidence if the defense request to play the videotapes of Lyle’s former testimony was granted.)

Then there was also the attempt by Lyle to get Jamie Pisarcik to fabricate evidence. In the first trial, the Pisarcik incident wasn’t gone into in great detail, supposedly because of some agreement between the defense and prosecution. In the second trial there was no such agreement to limit testimony about the incident, and no doubt Lyle would have been subjected to extensive cross-examination on the matter.

Also, had Lyle taken the stand, he would have had to explain several damaging statements he made on the 12/11/89 Oziel tape recording. Something he had avoided in the first trial since the tape didn’t come in as evidence until after both Menendez brothers had testified.
Among many other things, Lyle said: “There was no way I was gonna make a decision to kill my mother without Erik’s consent. I was going, I didn’t even wanna influence him in that issue. I just let him sleep on it for a couple of days.”
Lyle also said: “I think one of the biggest pains that he [Erik] has is that you miss just having these people around. I miss not having my dog around, if I can make such a gross analogy.”
In general, the brothers’ statements on the tape strongly indicated that the shooting of their parents were premeditated murders, and not a spontaneous act of self-defense.

The fact that Lyle didn’t testify meant that the amount of evidence his attorneys were allowed to present on his behalf was severely limited. For example, Diane Vandermolen wasn’t allowed to testify that Lyle at age 8 confided that he and his father had been touching each other in the crotch. Nor were they allowed to present expert testimony from Dr. Jon Conte, who would have testified that Lyle suffered from Battered Person Syndrome and that this condition affected Lyle’s perceptions and conduct on the night of the killing.

Lyle’s failure to take the stand also meant that the jury was never given the details of the sexual abuse Lyle allegedly suffered. Although there was brief testimony from two witnesses that Lyle had been sexually abused by his parents, there was never a time frame established, other than that the alleged sexual abuse by Jose Menendez was during Lyle’s “childhood.”

Lyle not testifying also meant that the only testimony in the second trial regarding Lyle’s state of mind at the time of the shooting came from Erik Menendez, who gave a brief description of Lyle’s actions and reactions to events, but whose testimony left huge gaps as far as what Lyle’s thoughts and emotions were at the time of shooting. Only Lyle could have bridged those gaps by taking the stand and give direct evidence of his state of mind.

Had Lyle taken the stand and testified to his state of mind, it may (or may not) have changed the trial court’s decision on which instructions to give to the jury. But without his testimony he had a weaker argument than Erik that the jury should be given instructions on imperfect self-defense and heat of passion. After denying the defense’s request for an imperfect self-defense jury instruction, the trial court, Judge Stanley Weisberg stated:
“My ruling on imminent danger and the concept of unreasonable self-defense applies to both defendants, but certainly the defendant, Lyle Menendez, is in a much weaker position than Erik Menendez on the entire issue, based on the evidence that’s been presented here. And looking at it in totality, there is — if there is not substantial evidence as to Erik Menendez, and there is not, there is even less as to Lyle Menendez on that subject.”

The Ninth Circuit Court of Appeals, which denied the brothers’ appeal in 2005, found, in regards to the brothers’ claim that Judge Weisberg erred in refusing to give the jury instructions on imperfect self-defense, that, “evidence that Lyle ever feared his parents is so weak in the record that his claim could be rejected without discussion.”

Why did Lyle Menendez not testify in the second trial? Was it because he “did not want to go through it again”? Or is it a more plausible explanation that he didn’t testify because he knew he would be annihilated on cross-examination?

I believe it was the latter. In the first trial the Pisarcik incident was the only evidence introduced of Lyle attempting to fabricate evidence. In the second trial he would have been confronted with the fact that he attempted to fabricate evidence on at least two other occasions. Had he not faced being confronted with this damaging evidence, I believe he would have taken the stand.

Draw your own conclusion.