Preet Bharara:

Hey folks, Preet here. As many of you know, CAFE has launched a new project, a second weekly episode of CAFE Insider, hosted by CAFE contributor and former Assistant U.S. Attorney Elie Honig. Elie will be joined by CAFE contributors and other guests to tackle one major legal or policy issue per episode, helping you stay informed in 30 minutes or less. New episodes will drop on Fridays exclusively for members of CAFE Insider. But today, we’re bringing you this week’s episode in full. To never miss future episodes, become a member at cafe.com/insiderpod. You’ll get access to both weekly episodes of CAFE Insider, bonus material from Stay Tuned, and other exclusive content. This week, Elie and his guest, Jesse Weber from the Law&Crime Network, dive into a criminal case from the 90s that you may have heard of. It’s the case of Lyle and Erik Menendez, who were convicted of first degree murder for killing their parents. Now onto the show.

Elie Honig:

From CAFE and the Vox Media Podcast Network, welcome to CAFE Insider. I am Elie Honig. Now, this week, we’ll be diving into a criminal case from a horrific event that happened in 1989. The case carried on through the 1990s, and it has generated a lot of interest lately. It’s the case of Lyle and Erik Menendez, two brothers who were convicted of first-degree murder for killing their parents in Los Angeles.

There are, of course, many legal issues surrounding their case and their latest attempt, which is ongoing, to get out of prison. For this discussion, I’ll be joined today by Jesse Weber. Jesse is a host and anchor at the Law & Crime Network. He has covered this case carefully and closely. He’s the perfect guest to help us break it down. Jesse, thank you for being here.

Jesse Weber:

Elie, of course, you didn’t take much convincing. If Elie Honig’s attached to something, I want to be a part of it. And congratulations on this podcast. You’re doing a great job.

Elie Honig:

Oh, thank you. I appreciate it. Now, just to set the stage here, Jesse is the expert. I am a guy who remembers this all happening because it happened when I was in high school and college, but really had only the most surface-level memory of it or understanding of it. I’ve now done a bit of a dive.

I watched the documentary on Netflix. That’s tens of millions of people I think have watched, and I’ve done some reading on it. And I have a thousand questions for you, Jesse, as the expert. Can I just ask real quick because it is relevant? I cannot tell how old you are. I’m 49, but this is relevant because of when the events happened.

Jesse Weber:

Well, I don’t know if you’re ever supposed to answer your real age in this industry.

Elie Honig:

You’re allowed.

Jesse Weber:

Put it this way. I was two when the killings happened. It’s not like I moisturize, and I’ve… I’m 80 years old, and I was in the courtroom. But no, I was very young when this was going on.

I always knew about the Menendez case, but since in the past year, I would say, since they’ve been making this movie and we’ll talk about it to try to be released, I did kind of a deep dive, and we’ve been focusing a lot on Law&Crime Sidebar podcast about it. It’s a fascinating case, fascinating case.

Elie Honig:

So start us off, give us a quick overview of the general what happened.

Jesse Weber:

We go back to 1989 and Jose and Kitty Menendez are brutally, brutally shot to death in their Beverly Hills home. And this was a shock. Took… Everybody was trying to figure out what happened here. And by the way, if you watched the Monster show on Netflix, there is an incredibly graphic scene where you see them being killed. And for the record, there’s some differences between how they’re actually gunned down in that episode versus what really happened.

But what I will tell you is with the similarities, how disturbing it is, and this was a close-range murder. Multiple shots were fired and nobody knew what happened. What happened was one of the brothers called 911, said, came home, found his parents dead police arrive, they come running out of the house. They had indicated at the very beginning that this was maybe a mob hit, and that wasn’t so outside the realm of imagination, considering how disturbing and graphic and savage this killing was.

But then, as the few days go by and as time goes by, some weird things were happening. The brothers start going on a spending spree. They inherit all this money. They start buying Rolexes, and they… cars. They invest in businesses, an odd thing, to say the least, after your parents are brutally killed. There were some odd comments that were made at the memorial service, and I think they weren’t necessarily on police’s radar as suspects. I mean, who would believe two sons, one 18, one 21 years old, would murder their parents in cold blood?

And then something big happened. Erik Menendez had been seeing a therapist, and you could say it was the guilt, but he ended up confessing to this therapist that he and his brother murdered their parents. And Lyle apparently came to the therapist’s office, allegedly threatened the therapist, threatened Erik, and this therapist had a mistress and she released this audio and went to the law… went to law enforcement and said, “These brothers confessed.” And they ended up getting arrested. And there were two trials in this case, and I think it’s important to note this.

The first trial was two juries. They were both charged with murder with special circumstances, and they were able to present a defense called imperfect self-defense, which, under the law means in California law, you can have a genuine, honest belief that your life was in danger, but it can be unreasonable, but you have to have imminent harm. You have to feel like your life was in danger at that moment. And in a shock… One of the reasons this case got so much attention is because, at trial for the first time, we learned the brothers say they were sexually abused by their father, Jose Menendez.

That abuse is what led them to have this fear that their parents were going to kill them, that if they were to expose abuse, their parents were going to kill them. And the jury, two separate juries, one for Erik, one for Lyle, they were both hung. The jury… The members couldn’t decide if this was manslaughter if this was murder. So the hung jury. They end up getting tried a second time. Prosecutors learned the mistakes that they made in the first trial, and they actually convinced the court to exclude not all. There’s a misconception, not all, but a large amount of evidence of abuse in the second trial.

And both Erik and Lyle cannot argue imperfect self-defense, and they end up getting convicted of first-degree murder. For years, they have been trying to fight this through appeals and habeas corpus motions to ultimately try to get released, and there hasn’t… they’ve always been denied. And then you go to 2023, and this is when the whole game has changed and now everybody’s talking about it because of the Netflix shows.

Elie Honig:

Yeah. And important to distinguish, there’s a drama which is eight or nine episodes, the one you talked about, “Monsters.”

Jesse Weber:

Right.

Elie Honig:

That I’ve not seen. But separately, there’s the documentary, which has all sorts of footage from the trial. So that is a great overview. Let me give you sort of maybe a little bit of a generational confession. This is why I asked your age. Like I said, I’m 49. This all happened, the murder happened when I was in middle school, and then the trials played out over college and high school for me.

This documentary, I completely, and I think a lot of people in my generation will cop to, we completely misunderstood, misapprehended, were maybe fed wrong about what this case really was. It is much darker than I realized. And the Menendez brothers are much more… I don’t know if sympathetic is the right word, but it’s just different than it was cast.

The way it was cast in the 90s was a punch… literally a punchline. There were Saturday night, night live sketches about it. Letterman did it. Leno did it. And the joke was always, “Look at these spoiled rich kids from Beverly Hills who were so obsessed with money, they couldn’t even wait for their inheritance and they just did this crazy thing and off their own parents.

And they were kind of like the preppy killers.” SNL did a sketch where two guys in sweaters or two of the actors in sweaters are pretending fake crying on the stand. And it almost became this point and laugh, “Ha-ha look at these maniacs. May they rot forever,” but there’s so much more to it, and it’s so much darker than I realized, and the sexual abuse angle is what really raised that. Yeah.

Jesse Weber:

Elie, if I can just jump in why I think-

Elie Honig:

Yeah.

Jesse Weber:

… that’s so important you say that. One of the arguments that’s coming out now why they deserve a new trial or their conviction should be thrown out is, and we’ll talk about it, the discovery of this new evidence to say that this abuse happened. And the argument being put forward is if you were to try them today, they would not be found guilty because we have a different understanding of what sexual abuse is today.

Elie Honig:

Right.

Jesse Weber:

And that abuse can happen. A man can abuse his sons. There can be male-on-male abuse. And the fact that you mentioned that people didn’t take that seriously or were almost joking around about it so many years ago. Proves the point in fact.

And I’ll give my opinion later, if you want, about what I think the likelihood is or whether they should be… there should be a change in their case. But that’s a great point because I don’t think there was a recognition of how serious it was what they were claiming.

Elie Honig:

Not only was there not a recognition, you didn’t talk about it. I mean, they show the episode-

Jesse Weber:

No.

Elie Honig:

… of Oprah Winfrey show from the 90s where she has on, I think it’s 100 or 200 male survivors of sexual abuse. And that was… to Oprah’s credit, that was groundbreaking. You didn’t… It was not… Take my word for as someone who was alive in the 90s. It was not spoken of at all.

I do want to get your views as to how this plays out in the upcoming court proceedings, but before we do, let me ask you straight up, do you believe, just based on what you know and seen, do you believe Lyle and Erik Menendez testimony and story? I don’t mean that in a derogatory way, but testimony about the fact that their father sexually abused them in horrific ways that the documentary spares no feeling, spares no detail. Do you believe them at core?

Jesse Weber:

I think there’s strong evidence to say they were abused. And when we say abuse, physical abuse, psychological abuse, and sexual abuse.

Elie Honig:

Yes.

Jesse Weber:

There’s one thing for the brothers to get on the stand and say they were sexually abused and prosecutors could say, “Oh, how convenient. How convenient for them to come up with that defense.” Now, on the one hand, they never apparently told their therapist about the sexual abuse, but think about it. You think it’s easy to talk about sexual abuse. You think that’s an easy thing to mention.

Elie Honig:

No way.

Jesse Weber:

But I’ll say the fact that, at both trials, there was evidence, they brought witnesses to suggest that these… when they were boys were abused. And now you learn about this new evidence of a letter that maybe documents the abuse. And a member of Menudo who claims that he was drugged and raped by Jose Menendez, there’s something there. Whether or not that means they should be found out guilty of murder is a different question. But I think that there’s abuse.

Elie Honig:

So you raise an important legal distinction, which we’ll get to in a second. I do believe them, and I’ll tell you why. First of all, you’re right. Culturally, look, I’m a male of… a little younger than them, but it was not spoken of. But the other thing is, and this is a trial detail that I caught. Both boys talked about how the father, Jose, sexually assaulted and abused them, but they also both testified that the older brother had also sexually assaulted the younger brother.

The older brother said that, and the younger brother said that. And in my view, just looking at this as a prosecutor, if they were making up this story, why the hell would they make up that horrifying detail? To me, that just has the ring of horrible, grotesque, painful truth that the brother… the older brother, Lyle, then sexually assaulted the younger brother. I forget the exact age when they were nine and six or something like that. That, to me, if you’re making up a story that your father sexually abused, you don’t make up that part.

Jesse Weber:

And by the way, there was more insinuations of incest in the Monsters show, and Robert Rand, who’s an expert in this, he’s been following it from the very beginning. Back in the 80s, he said, “That’s not true.” There was some instance where one brother was abusing another with a… I think it was a toothbrush. And the idea was that they had learned it from watching Jose, and that was a big point, Elie, right.

Elie Honig:

Okay.

Jesse Weber:

The idea that if these personal details are coming out on the stand, there’s a way you could defend this case in a number of different ways. But to go that route, exposing yourself like that, I think you make a good point.

Elie Honig:

Yeah. So let’s talk about the law here because there is a really important distinction between, on the one hand, do we feel bad for the Menendez brothers? Do we empathize or sympathize with them? And have they done enough time? And on the other hand, have they met the technical requirements of the self-defense claims that you discussed earlier? So as you said, there’s two trials. Let’s focus on the first one. First trial, they are charged with murder first degree. Like you said, imminent belief of death or serious bodily injury.

I mean, the classic example would be, “That person pulled a gun on me, and so I fired first and shot that person. That person broke into my home, and was wielding a knife and was coming at me so I shot that person first.” What the boys are arguing, they’re not arguing, not guilty. They don’t argue at the first trial, “It wasn’t us.” They concede, they both testify, they both take the stand, “Yes, it was us,” but they argue what you correctly termed imperfect self-defense, meaning, “We did have this belief of imminent harm coming to us, but maybe it was unreasonable, maybe reasonably we shouldn’t have thought that.”

I see a couple problems with that, just legally speaking, and I’ve already made clear. I really do find myself siding with the Menendez brothers, and we’ll talk about what we think should happen next. Problem number one is being the victim of persistent horrific sexual abuse. I can understand how it might’ve driven them to do this. I’m not sure it quite meets that imminence standard. That’s problem number one. Problem number two is they have a mom problem here. Kitty is the mother.

And while the mother is a bad, bad actor, she’s an enabler. She turns a blind eye, she never physically lays hands on the boys. And I think while you can maybe put together an argument if you’re representing the Menendez brothers, that they were in mortal fear of their lives that the father would kill them, it’s really hard to make that argument with respect to the mom. So give me your thoughts on my theories of the case here.

Jesse Weber:

So you make a number of points, and I’ll say when it comes to Kitty Menendez, there’s been a back and forth about whether she was an abuser as well or she just acquiesced. I will say this. You make a great point, and I think the way to look at it, there have been a number of cases where people have been abused. Look at the Gypsy Rose Blanchard case. She was abused. She pled guilty to second-degree murder. Her boyfriend was found guilty of first-degree murder. Abuse happens all the time.

It doesn’t give someone a license to commit murder. The problem for the Menendez brothers were, and it’s that imminent point, they purchased the shotguns. They went all the way to San Diego. They went to… tried to go to a shooting range. That preparation, that planning, when they could have just driven away when they could have escaped, and you could say, “Look, they were under the control of their father. They didn’t feel there was escape.”

From a legal point of view, that’s what makes self-defense, which, by the way, under the law, would’ve downgraded that to manslaughter. That’s what makes it really difficult. Now, I will tell you, if I can just briefly touch this about the second trial, if I may, because the thing is, when you look at the differences between the two trials, I’m not surprised that you see both juries were kind of hung. Is this manslaughter? And by… It was split on gender lines. The female jurors were actually-

Elie Honig:

Right.

Jesse Weber:

… looking more towards manslaughter. But when the courts in the second trial and courts afterwards, Court of Appeal, the Ninth Circuit, they said it was not a mistake for the second trial… for the judge in the second trial to exclude the imperfect self-defense argument for your very reason. There was no imminent. And I think that that is really important. It gets lost a lot of times. People say, “Oh, this new evidence of abuse.”

Even if you assume they were abused, the abuse wasn’t happening at that moment. Kitty and Jose were watching television in the den when they were gunned down by their sons, holding Mossberg shotguns. They had no weapons in their hand. They were unarmed. That, I think, is the most difficult aspect of it, that they could have walked away, that it was premeditated. You can understand why they were motivated, but that doesn’t, under the law, necessarily make this not murder.

Elie Honig:

I think that’s exactly right. And to me, if there was a legal defense of “pushed too damn far and snapped,” then it would… this would be a good case to apply that. But there is none, right. The technical definition of perfect self-defense or imperfect self-defense, you need that imminence.

You need that, “Oh my gosh, I believe whether reasonably which or unreasonably, either one, I believe this person reasonably or unreasonably is about to kill or harm in a serious way, me or some other person.” And I think if you had to say, “Well, why are they…” Let’s take it out of the legal context. I think if you said to me, “Why are they just justified in a psychological sense, in a moral sense?” I would say because they were pushed over the edge. They were made to crack because of the horrific abuse that they suffered.

That’s not a legal defense. Alan Dershowitz, who I often almost always disagree with, did write an interesting piece back in 1996 entitled The Abuse Excuse, he calls it. He writes, “The abuse excuse is detrimental to the justice system.” And I think you touched on this a little bit, that if abuse, physical or sexual, were to become a defense of some sort to murder, that may be a dangerous road to go down.

Jesse Weber:

And by the way, I just talked about this recently in the Sarah Boone case if anybody’s been following up. One of the things that the brothers were able to argue, I think, in the second trial was the battered person syndrome.

They had experts to talk about it. It’s very similar. Even when you’re talking about somebody who is a victim of abuse as in a battered spouse, doesn’t mean that you have the license to then use lethal force. It is a reason you may be able to argue self-defense, but there is an imminence factor and there’s a proportionality factor, right.

Elie Honig:

Right.

Jesse Weber:

And I think there struggles to even argue that when someone takes out a gun, and they’re being attacked. So I think that this is one of those cases. Again, I understand the sympathy. I get it. We just talked about that these brothers probably were abused. But again, the difficulty for them is trying to say that this was not murder.

Elie Honig:

What’s interesting too, you just used the phrase battered person syndrome, just as another example of how the cultural understanding around this has changed. That was not even the phrase for it in the 90s. It was called battered women’s syndrome. It wasn’t even acknowledged that it could apply to a non-woman person, a male. And so, now, the understanding of that still imperfect, but it has evolved. So they have this first trial, and you mentioned this. I thought it was… And actually, the documentary does not do a great job explaining. The document is very good, but I only knew this because I had done a little extra research.

There were two juries at the first trial. One was the Lyle jury, one was the Erik jury, which I guess you can do. I mean, God knows I never had a- I don’t even know where you would fit them. I never had a two-jury trial, which is an interesting approach because it preserves the rights to an independent finding for each. You also open yourself up to the possibility of a bizarre outcome, right. I mean, it could have been that Lyle, the older brother, who I think anyone would agree was more culpable as between the two of them, could have gotten acquitted. And the younger brother Erik, who’s as between the two less culpable, could have got convicted.

But both juries, as you say, hung, could not reach a unanimous verdict. Huge setback for the DA’s office in LA at the time. And then they do the second trial. And it’s interesting, the way you… because I think you make a good point. The documentary portrays the second trial as a railroad job. In fact, I think if you do a timestamp on it, the first trial is the first 70% of the movie, and then the last 10% is like, “Yeah, yeah, yeah. They sort of rigged the second trial.” They did not broadcast the second trial. The first one is… was on Court TV, early days of Court TV. It was there. People watched it.

Second one they took off… they took the cameras out of the courtroom. As you say, the judge said, “I’m not allowing you defendants to argue imperfect self-defense” because, like you said, that imminence factor is missing, which essentially left the jury with did they shoot their parents or not? I mean, of course, they did. But talk to us if you can. There’s a really interesting historical confluence here with the OJ Simpson case and verdict that’s going on that some believe influenced the way the DA’s office may have gone about doing the second trial.

Jesse Weber:

Well, first of all, people might not know this. There’s a scene in the Monsters case where OJ Simpson and Erik and Lyle Menendez are in the same jail. That’s true. They actually knew each other because Jose Menendez-

Elie Honig:

Right. From Hertz from the father, right?

Jesse Weber:

Yeah. Because remember, he got OJ into a Hertz commercial, and he was a big-time executive.

Elie Honig:

Right. The father worked for Hertz rental or something, right?

Jesse Weber:

Yeah. There’s a debate about who advised it was either Erik or Lyle to… for OJ to take a deal, and apparently, he was considering it to plead guilty. So there is that connection between the two. But look, this was a time when I would say the DA’s office needed a win. And one of the things that you think about with this is, and this might be controversial, but I have to say it, even if you think that the brothers, they should have had the opportunity to argue self-defense and it was a mistake or even if you think more evidence of abuse should have come into the second trial, don’t take my word for it.

Every court that has looked at that issue has said the judge made the right decision. And so the prosecutors, I don’t know how much you can blame them. They realized, “You know what? We messed up in the first trial. We should have made those arguments. We didn’t. Second trial, we made, the arguments we’re right as a matter of law.” Not every witness talking about abuse should come in. It’s cumulative. Sometimes the brothers didn’t lay the proper foundation for that evidence to come in. But there’s a misconception here too.

The brothers were able to argue abuse. They were able to introduce evidence of abuse, maybe not as much in the first trial, but to the point where they could explain what, and there was an overlap in witnesses. So that gets lost, Elie, a lot. When you read articles about… they’re like, “Oh, the brothers, they didn’t have an opportunity to present any abuse evidence. Nothing. No abuse.” Jury heard it. The jury heard it. Maybe not as much, but the point, I think, was taken.

Elie Honig:

Yeah. And the first trial was, as you say, way too drawn out, way too cumulative. Prosecutors, that’s on them. That’s their fault. I’ve done it. I’ve allowed a trial to spin out too long. It never plays to the prosecutor’s advantage. Let’s look ahead a little bit. Now, both of the boys, I keep calling the boys because that’s what they were at the time. They’re now into their 50s.

Jesse Weber:

Yeah, yeah, yeah, yeah, yeah.

Elie Honig:

But both of the Menendez brothers have been locked up since, I believe, it was either late ’89 or early ’90, a few months after the murders, which were in ’89. And now there’s been this groundswell, a lot of it originating from young people, from social media, from TikTok.

Kim Kardashian is now writing op-eds about this, that a judge needs to re-examine this case, and they want the DA’s office to get on board with going back in front of the judge. There’s a court appearance at the end of November, and they want the DA to say, “Judge, we are okay with reopening the case, redoing the sentencing,” something that would release the brothers after 34 years behind bars. Can you walk us through, first of all, what is the new evidence that’s emerged?

Jesse Weber:

Sure. So there’s a few things here, and we got to talk about timing because timing’s important. So they’re represented by a new attorney, Cliff Gardner, great lawyer. And he filed last year, May of 2023, a habeas corpus motion. Basically, you’re saying that someone’s detention’s unlawful trying to throw out the convictions. And in that motion, there are two new pieces of evidence. One is a letter, presumably, allegedly a letter from Erik Menendez to his cousin Andy Cano, who actually testified in both trials.

Unfortunately, he passed away in 2003. And in that letter, Erik Menendez seemingly refers to being abused by Jose Menendez. That’s important because if that was introduced at the trial, that makes Andy Cano’s statements much more credible. It’s corroborating evidence. And two, Roy Rosselló, who was a member of the boy band Menudo and Menudo was signed by Jose Menendez when he was at RCA, says that he was raped… that he was drugged and raped by Jose Menendez.

And that’s important, particularly for the second trial, because the prosecutor said, “Jose, Menendez would never do this. He’s a good guy. He’s a family man. He wouldn’t be an abuser. They made fun of the abuse defense.” Well, if you introduce testimony of somebody like this, that makes it more credible. Again, it doesn’t take away from the fact whether it’s murder or not. Now, here’s what’s interesting. Okay. May 2023, they make this motion. Only now, after the Netflix series, after all the attention, we have-

Elie Honig:

Netflix has a huge impact. Yeah.

Jesse Weber:

… LA district attorney, Mr. Gascón, finally says, “You know what? We’re looking at this evidence now.” I think it’s a very political decision. I mean of all times to review a habeas motion. I know that this leeway about when can respond, but right now, timing of it when he’s in the middle of election cycle and he’s losing in the election-

Elie Honig:

Ugh.

Jesse Weber:

… I think it’s very interesting. He takes a very popular opinion about it. He takes a position on the Menendez but says he’s going to review the evidence. Now, there’s two points here. There’s the habeas motion, and then a lot of people don’t know this, but under California law, a DA can petition for a sentence to be recalled and for there to be a resentments. So they could say, “We want the murder sentence to be recalled. We want them to be re-sentenced on manslaughter, time served.”

The brothers are released. So there’s these two things. There’s the habeas motion, there’s the recall. They haven’t made it. The DA’s office says they’re going to review it. They’ll make a decision. It will be up to the court to decide what to do. But I think the timing of it and the justification about it, important evidence, but does that mean that there should be… the brothers should be released? Does it mean that it’s manslaughter? Does it mean that it’s not murder? Would there have been a different verdict? Maybe in the first trial, but not in the second trial, in my opinion.

Elie Honig:

My vibe from reading between the lines of what he has said is that he is going to eventually go along with the request for leniency. It’s just in the way he’s hedging his bets. And I’m doing a little bit of prosecutorial mind reading here, but the way the DA has responded to inquiries if I had to guess, leans me towards he is going to go along with leniency for them, which would be would have to be released now. I mean, they’ve been in 34 years. You wouldn’t be like, “Well, five more years is good.” What do you think? What’s your guess here?

Jesse Weber:

I think he probably will, considering, like I said, it’s an election year. He’s losing to Nathan Hochman, and when he mentions the Menendez issue, people are supporting him on that. Now, what I think is interesting is I don’t know if it necessarily supports the habeas argument.

Again, we talked about extensively about even if you assume all this abuse evidence is true, does it make it less, more likely than murder? But here’s the other thing. When you’re talking about recalling a sentence and resentencing somebody, not necessarily for first-degree murder cases. If you’re talking about a felony murder case, like a getaway driver and someone gets killed-

Elie Honig:

Right.

Jesse Weber:

… maybe you could say, and here they’re really focusing. If you listen to his comments, really focusing on the rehabilitation efforts of the brothers, what they’ve been doing in prison, getting college degrees, doing great work, being advocates for sexual abuse, commendable, amazing, great.

But should that be a reason you’re rehabilitated in prison or you’re doing good work that you should be released from prison for first-degree murder? There’s a lot of other people who are in prison for first-degree murder. What kind of precedent does this when you’re not an Erik or Lyle Menendez, and your case isn’t made into Netflix documentaries? I think that’s a… And he’s talked about, “Oh, our office has done this 300 times.” Okay. But how many with this kind of fact pattern?

Elie Honig:

Or what are the circumstances? Yeah.

Jesse Weber:

And that’s the issue to me that makes this more political because I don’t see the legal justification behind it.

Elie Honig:

It’s funny because you are largely channeling what the prosecutor says at the end of the documentary. She’s featured throughout. She was the prosecutor on the first trial, and she’s interviewed now 30 years on. And towards the very end, she has this monologue towards the very end of the documentary where she essentially says, “Your feelings don’t matter everyone.

I don’t care what’s going on out there in TikTok, and I don’t care how much people sympathize for them, and I don’t care that they’re doing artwork from prison.” And she’s like, facts and law, facts and law. It’s funny because the ex-prosecutor’s the soft one here. I’m the one that’s like… But that’s sort of feeling like they should be let out.

Jesse Weber:

May I just correct one thing?

Elie Honig:

Yeah.

Jesse Weber:

Just clarify one thing. I feel bad for them. I really do. As I said, I think that they were abused.

Elie Honig:

I do too. I’m being a softy.

Jesse Weber:

But I want to be…

Elie Honig:

Acknowledged. Yeah.

Jesse Weber:

No, no, no. But to be clear, if they only had one trial, and it was the first trial and the abuse evidence was allowed in, they were allowed to argue manslaughter, and they get convicted, and this evidence comes out, I would be on the board of maybe they should be released. But because I don’t disagree with the higher courts that said there was no mistake made in the second trial. I’m just following the Ninth Circuit.

I’m following the Court of Appeal. I’m following. When they said that it was proper to not argue… to not allow an instruction on self-defense, that it was proper to not include every witness, I’m relying on the higher courts and saying, “If that’s the law, and that’s the way it is…” That’s why I think the brothers might have difficulty arguing from a legal point of view that they should be released.

Elie Honig:

I think you’re dead right on the law. I’m just… Now that I’m no longer a prosecutor, I have the luxury of allowing my emotional side to rule.

Jesse Weber:

Yeah, yeah.

Elie Honig:

But I do think you’re right, and I think the eminence point is a problem. But look, I’m not making light of this. When you have on your side, if you’re the brothers or against you, if you’re, I don’t know, whoever’s against this, TikTok, Netflix, and the Kardashians, that is a formidable trio.

I mean, it’s hard to think of three entities that shape public opinion more than those three combined. So I feel like there’s a groundswell sort of building here towards the conclusion. But I think you’re right. I think it begs a question of are we dispensing justice on the basis of what’s hot on Netflix or not.

Jesse Weber:

It’s a very, very powerful mechanism. I can’t deny it.

Elie Honig:

Yep.

Jesse Weber:

And again, I think that’s probably what’s motivating the DA’s office to not even announce they’re looking into it but maybe signing on with the brothers. But what I will say is think about the other side. I think it was Kitty Menendez’s brother, so it’s the brother’s uncle, who is against this. He says that he hopes… he wished the brothers got the death penalty and two lives were lost. Even if they were terrible people and they abused their children, they should have been arrested.

They shouldn’t have been killed in their home with shotgun blasts. And so I think that that is the important difference here. And look, I’m not going to… if the DA ultimately says, “We’re signing on,” the court says, “We agree that the brothers should be released,” I get it. I understand it, but it’s just from, as the attorney as looking at the law, I just look at it a little bit differently than everybody else.

Elie Honig:

It’s so riveting. And one… before we wrap up, one last sort of strange twist in this case is ordinarily in a case like this, who would be opposing release for the boys? Would be the family members. But here, I mean the kids, but the kids are the defendants here. Of course, as you say, there’s brothers and sisters and aunts and uncles.

As you can see, I have gone from blithely unaware of this case, I mean, again, I remember it from my childhood and my teenage years, to riveted by… I’m getting you to commit right now, the court appearances November 29th. You’re going to come back and rejoin us for the episode that week-

Jesse Weber:

Done. Done.

Elie Honig:

… so we can recap this. I have one final question for you. Is it an urban legend, or is it true that after the murder, the brothers went on this spending spree, which is in the… covered in the documentary, they bought a Porsche, that they went to a New York Knicks game at the Garden, or maybe it was out in LA, and there is, I believe, a Mark Jackson, I think, basketball card who was the point guard for the Knicks, where you can see the Menendez brothers behind him-

Jesse Weber:

Oh.

Elie Honig:

… in the basketball card sitting in their front row seat. Is that true, or is that urban legend?

Jesse Weber:

Wow, that one threw me. I got to check that one myself.

Elie Honig:

Hold on.

Jesse Weber:

If that’s true…

Elie Honig:

Hold on. This requires an instant… Okay, here we go.

Jesse Weber:

My gosh. Is it there?

Elie Honig:

This is Newsweek. “Menendez Brothers bizarre basketball card cameo goes viral. A Mark Jackson-”

Jesse Weber:

Oh, wow.

Elie Honig:

“… NBA trading card is making the rounds online with fans stunned to learn that the notorious Menendez brothers can be seen on the coveted collectible.” It’s a 1990, that makes sense, 1990 card according to Newsweek. So I was not-

Jesse Weber:

Wow.

Elie Honig:

… imagining that. That is real.

Jesse Weber:

That’s going to be made up into an NFT anytime soon. My gosh.

Elie Honig:

Exactly.

Jesse Weber:

Wow.

Elie Honig:

Exactly.

Jesse Weber:

Now I got to check that out. Oh, wow.

Elie Honig:

Yeah. So, wow. Okay, good. It took us the whole podcast till I told you something you didn’t know. So I feel good about that.

Jesse Weber:

I didn’t know that. I missed that point. Now, I think or some would say that was the most important point of all.

Elie Honig:

I mean, it’s pretty good. It’s pretty good.

Jesse Weber:

Yeah.

Elie Honig:

All right, Jesse. Well, thank you so much. That was awesome. I love talking about this. We’re going to bring you back in November, and everyone-

Jesse Weber:

Sure.

Elie Honig:

… follow along. This is a huge story, and it’s going to keep growing.

Jesse Weber:

Elie, thank you so much for having me. It was a pleasure. Love getting the chance to talk with you, and again, congratulations on the great work that you’re doing here, on CNN, wherever you can find Elie. I’m like your spokesperson. I think you do an amazing job. So thank you so much for having me.

Elie Honig:

Thanks, Jesse. I appreciate it.

Preet Bharara:

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