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ANALYSTS: ERIK MAY ABANDON LYLE : MENENDEZ ALLIANCE COULD FADE IN PENALTY PHASE.

Byline: Jeannette DeSantis Daily News Staff Writer

With the penalty phase of their murder trial set to begin today, Lyle and Erik Menendez will have to decide whether they will stick together one more time.

The brothers killed together. They shared a united defense, demonizing their slain parents as abusers who instilled in them a fatal fear. And now together they face a bleak prospect: the death penalty.

But some analysts say the brothers' allied front could shift in the penalty phase of their Van Nuys Superior Court trial in which jurors will recommend whether Lyle and Erik should be sentenced to death or get life in prison without the possibility of parole.

``If it comes down to their lives, Erik will point the finger at Lyle,'' predicted Loyola Law School Professor Laurie Levenson. ``Erik could say yes I did it, but Lyle told me to.''

During his retrial testimony, Erik, 25, portrayed himself as the weaker brother protected by his older brother who tried to stop the father's abuse ahead of the killings in the Menendez family's Beverly Hills mansion.

Law Professor Samuel Pillsbury said the brothers could point fingers to mitigate their roles in the August 1989 shotgun killings, but he said there also may be incentive to remain united.

``(Erik) could say he was in essence led or pushed into the crime,'' said Pillsbury, also with Loyola Law School. ``But it is not likely because the brothers will appeal the same arguments - that they suffered at the hands of their parents.''

Prosecutors, who have said they will seek the death penalty, and attorneys for the Menendez brothers are under a gag order forbidding them from discussing the case.

But in the past, defense lawyers dismissed any suggestion that the brothers could turn against each other.

``All these two brothers have in this world are each other,'' Lyle's defense attorney, Charles Gessler, has said.

Beginning today, attorneys for the brothers will begin presenting testimony to the jury which will ultimately recommend whether Erik, 25, and Lyle, 28, should be sentenced to life in prison or to death.

The defense said last week it was prepared to present 38 witnesses.

The jury will be asked to consider aggravating and mitigating circumstances in reaching their decisions.

During the trial, the brothers admitted bursting into their family's Beverly Hills mansion with 12-gauge shotguns and killing their parents, Jose and Kitty Menendez.

They said the action culminated years of physical, sexual and emotional abuse that so psychologically disturbed them, that they believed their parents were going to kill them.

Prosecutor David P. Conn argued that Lyle and Erik made up the abuse excuse to shift the focus of the trial to the sins of their parents. He argued that the brothers killed out of greed.

In the penalty phase, prosecutors are likely to focus on the brutality of the crimes and their planning of the slayings.

But attorneys for the brothers plan to paint a horrific story of their early childhood with witnesses that are expected to include relatives, coaches, friends and teachers.

As mitigating factors, the jury will be asked to consider the brothers' ages, their lack of prior felony convictions, and the brothers' state of mind at the time of the murders.
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Publication:Daily News (Los Angeles, CA)
Date:Mar 27, 1996
Words:542
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