Retrial jury and family history evidence

One of the last scenes in the 2017 miniseries “Law & Order True Crime: The Menendez Murders”, depicts a member of the retrial jury telling the gathered press outside the courthouse on the day of sentencing that, “Many of us felt that if we’d heard about the family history during the trial, we never would have convicted them of first-degree murder.”

The scene is inaccurate insofar as no juror ever made such a statement to a gathered press on the day of sentencing. If they had I feel sure it would have been reported in newspapers. But whether the statement itself has been made by one or more jurors on other occasions is another question.

But first, a brief background about what the statement refers to. Certain evidence that had been excluded from the guilt phase of the retrial was allowed to be introduced in the penalty phase. The evidence consisted of the testimony of relatives, friends, teachers, coaches, and additional mental health experts. That is the “family history” being referred to.

As to the origin of the statement, journalist and author Robert Rand has on numerous occasions stated that several members of the jury that convicted the Menendez brothers told him after the trial that they would not have voted for murder if they had heard the family history evidence.

In 2017, Rand told CNN’s Chris Cuomo: “After the second trial was over I interviewed all the jurors, and four of the jurors told me that if they had heard that defense evidence in the guilt phase they would not have voted for murder.”

In the 2017 “Truth and Lies: The Menendez Brothers – American Sons, American Murderers” documentary, Rand said, “The jurors never heard anything about the family history. And several jurors that I interviewed after the second trial told me if they had heard that family history they never would have voted for murder.”

In his 2018 book “The Menendez Murders”, Rand writes on page 320 that “several jurors” told him after the trial that they “would not have voted for murder” in the guilt phase of the trial if they had heard more testimony about the Menendez family history.

However, in the 2020 Investigation Discovery “The Crimes That Changed Us” documentary, Rand said, “I spoke with several jurors after the penalty phase who told me if they had heard that family history and background in the guilt phase of the trial they might not have voted for first-degree murder.”

First, note the difference between “murder” and “first-degree murder.” While the two may be synonymous in everyday layman’s speech, California law distinguishes between first-degree murder and second-degree murder, both of which were options for the Menendez retrial jury.
When Rand writes/says that several jurors “would not have voted for murder” it would seem to suggest that they would have voted to acquit the brothers of murder charges altogether and instead voted to convict them of voluntary manslaughter or, in the case of Kitty, voted for acquittal, (since manslaugther, appropriately enough, was not an option in the killing of Kitty.) I would hazard a guess that in all the instances where Rand uses the word “murder” he is talking about murder in the first degree.

Second, and far more significantly, as the attentive reader will note we have gone from “would not” have voted for murder to “might not” have voted for murder.

Some might say I’m nitpicking on tiny details. This is not the case. The two phrases (“would not”; “might not”) are not synonyms. “Might not” could simply mean that the likelihood of not voting for murder was merely a remote likelihood.

Perhaps none of the four jurors in question ever actually used either phrase. Maybe Rand simply drew a conclusion based on what the jurors told him.

It is somewhat surprising to me that none of the four jurors have ever spoken out voicing frustrations or expressed outrage that they joined in an unjust verdict. If the four jurors truly feel that the omitted family history evidence would have changed their minds about voting for a (first-degree) murder conviction, one could reasonable expect a reaction of outrage from them. After all, the verdict they “would not” have joined in sent two young men to prison for the rest of their lives.
Having said that, it’s possible that, unknown to the public, the four jurors have contacted trial or appeal attorneys involved in the case and been told there is nothing that can be done about it now.

Why do I find this topic significant at all? Because Rand’s statement that several jurors told him they would not have voted for murder is repeated endlessly in various online forums by people supportive of the Menendez brothers as a reason for why the first-degree murder verdict was unjust. Few seem to bother noticing that Rand in 2020 changed “would not” to “might not.”
Draw whatever conclusion you want about what jurors told Rand they would or would not have done. At this point I’m not going to draw any conclusion myself. The information available is simply too limited.

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