(This post is an update of the 2019 “Photos of Lyle and Erik” post.)
Introduced as Exhibit 219 in the first trial was an envelope with Kitty Menendez’s handwriting, reading: “Erik’s birthday November 1976.” On the back of the envelope there was a sticker with the address of the Menendez house in Monsey.
The envelope contained approximately a dozen photos. Two of the photos, Exhibit 223 and Exhibit 232, depict the brothers in the nude. I won’t post the photos here, they can be seen in the trial videos.
Lyle Menendez testified that Jose took photos of the brothers’ “private parts” in the shower, bathtub, or when they were changing clothes. See trial video 48 at 1:01:41 – 1:10:22.
Erik Menendez testified that Jose would take naked photos of him. See trial video 58 at 29:07 – 33:37.
You can see enlargements of the photos (and listen to prosecutor Lester Kuriyama talk about their significance or lack of) in trial video 117 at 3:54 – 10:30.
Prior to the second trial, the prosecution filed a Motion requesting the trial court to exclude the two photographs depicting the brothers in the nude. In the first trial the photos had been received into evidence without objection by the prosecution. The prosecutors in the second trial took the position that the photographs should not be received into evidence. The trial court, Judge Stanley Weisberg, allowed the photographs to be introduced, finding that there was adequate foundation as to the photographs being of the brothers based on the offer of proof that both brothers would testify that no one else but their father took photographs of them in the nude.
In the second trial, Erik testified about the photographs both on Direct examination and Cross-examination. The issue was also addressed by both the Prosecution and Erik’s defense attorney in their closing arguments.
More than 45 years after the photos were taken the question remains: Who took the photos? And for what purpose?
The position of the defense was that the two nude photos was “hard evidence” of sexual abuse.
The prosecution’s theory in their (unsuccessful) motion to exclude the photographs from the second trial was that the photos were taken by a child playing with the camera. The prosecution’s motion reads:
“[T]he nature of the evidence itself is inherently suggestive of the fact that neither Jose Menendez nor any other adult took the photos in question.
On the strip of negatives, contiguous to the two key photos in issue, is a photo of a door jamb. The photographer had apparently held the camera at an angle and took an unfocused, tilted photograph of a door jamb. Anyone who has ever seen a photograph taken by a young child would conclude that this photograph was obviously taken by a young child. The two key photos in issue are strikingly similar to the photo of the door jamb. They are also photos taken at an angle, much like the manner in which the photo of the door jamb was taken. The composition in both photos is so immature that the faces of the subjects do not appear in the photos.”
In the first trial, prosecutor Lester Kuriyama also briefly advanced an alternative theory in his rebuttal argument. Kuriyama stated: “Parents take photographs of their young children in baths. I don’t think that’s unusual.”
I agree with Kuriyama that there was nothing unusual about parents taking photographs of their children in baths. Could the two photos in question have been taken by one of the parents for totally non lewd purpose? Yes, I think it’s a possibility.
As for the theory that a child took the photos; kids like to pull pranks on each other and do funny things with cameras, so it’s not that big a stretch for me to believe that the photos depicting the brothers in the nude were taken by a child playing with a camera.