As the fate of the Menendez brothers is paused for another month, a legal analyst and trial lawyer says the fact that their freedom is even a discussion is thanks to a new law signed in by Gov. Gavin Newsom.
Roger Bonakdar, a California-based attorney, shared with Fox News Digital that after nearly 35 years behind bars, Erik and Lyle Menendez were given new hope to leave prison behind thanks to former Los Angeles County George Gascon and the passing of AB 600.
The law allows individuals who remain incarcerated under sentences that were imposed when harsher, less flexible laws were in effect, to petition for a review of their sentences, so they can benefit from more recent legislative reforms that focus on rehabilitation, according to the law’s text.
“What’s happening is that the prior DA Gascon, infamous for certain policies and practices that he instituted in LA County which many credit with the explosion of violent crime and theft in LA, had filed a motion with the court to have the Menendez brothers re-sentenced,” Bonakdar explained.
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Bonakdar said that Gascon’s argument was that the Menendez brothers are “allegedly no longer a threat to the community and that they’ve served their debt to society,” because of their ages at the time of their conviction and sentence.
“Gascon also apparently made a point of their defense, which didn’t fly at trial, about their alleged sexual abuse at the hands of their now-murdered father. So, what’s happening now is that the current DA has sought leave of court to withdraw or to take back Gascon’s motion because he doesn’t believe that the Menendez brothers are worthy or deserving of re-sentencing, and that’s what’s before the court.”
Bonakdar said what makes this hearing even more interesting is that the judge’s powers are “pretty broad” and he can “re-sentence them based on an offense that they weren’t convicted of.”
“The judge can even sentence them according to what is called a lesser included offense. That means an offense that acts are part of, or otherwise included in, the charge they went to trial on, which could include second-degree murder, even voluntary manslaughter, arguably under the statute. I would imagine the judge would be hard-pressed to go that far. But the powers that are given to a judge under the new statute are pretty sweeping. His discretion is very broad.”
The Menendez brothers and their supporters have been pushing for a resentencing hearing, saying the brothers were unfairly convicted to life in prison in 1996 for murdering their two parents, Jose and Kitty Menendez, in their Beverly Hills home in 1989.
Their first trial ended in a mistrial, when jurors couldn’t agree on their fate. After a second trial in the mid-1990s, in which some of their evidence about the alleged sexual abuse was excluded, jurors agreed with prosecutors that their motive was greed.
If the judge decides to resentence the Menendez brothers, it will then be up to the state parole board to consider their release.
Because they were under 26 years old at the time of the murders, under current California law, new sentences of 50 years to life would immediately make them eligible for a parole hearing.
“If this goes fully their way, they could be granted parole and be released. Their sentence could be commuted,” Bonakdar said. “And the reason for that is there have been certain changes in California law which allow certain offenders, if they were young enough at the time they were convicted to seek re-sentencing under these compassionate release rules that say that, for example, if you were under the age of 26 at the the time of the commission, or if you had certain other mitigating circumstances, you’re eligible to apply to the court for relief.”
Bonakdar added that what’s unique here is that Gascon affirmatively filed for the relief, and that the judge rejected current DA Nathan Hochman’s attempt to pull back Gascon’s motion.
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“This is pretty important because under the new law, it says that where the government, where the prosecutor moves for the release, it actually entitles the defendant, the convict, to the benefit of a presumption, meaning that the person who’s seeking the reduction of sentence starts off with a presumptive that they are eligible or that they should be granted parole. So that’s something that’s pretty unique and is not clear from what the judge ruled when rejecting Hochman’s request to withdraw that initial motion,” Bonakdar said.
What also sets this whole hearing and saga apart from others is that the Menendez brothers “definitely have a leg up over your average criminal defendant,” Bonakdar said.
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“First of all, obviously they had resources going into this. They had hired top flight lawyers. They threw everything in the kitchen sink at this trial,” Bonakdar said about their trials in the ’90s. “They went the distance and even testified in their criminal trials. So it’s not surprising that a defendant who had that level of resources and put in that level of effort might be seeking relief now.”
Bonakdar said that the biggest thing, though, is that Gascon affirmatively filed the motion.
“There is the argument that these defendants could have sought the clemency otherwise or filed a motion based on the change in the statute. The fact that Gascon, the former district attorney, filed this independently and affirmatively on behalf of these defendants really gives them a leg up going into the hearing. Most other defendants won’t have that benefit,” Bonakdar explained.
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Hochman has strongly opposed the resentencing, put in motion by Gascon, but said he would consider it if both brothers “sincerely and unequivocally admit, for the first time in over 30 years, the full range of their criminal activity and all the lies that they have told about it.”
He said in a previous statement that the brothers “have chosen to stubbornly remain hunkered down in their over 30-year-old bunker of lies, deceit, and denials,” and that it’s up to the court to factor in whether the “lack of acceptance of responsibility for their murderous actions” is enough to decide whether the Menendez brothers pose an unreasonable risk of danger to the community.
Bonakdar said, in his opinion and viewpoint, that there are “aggravating factors out there that the judge could consider and probably should” before making his decision in May.
“Premeditated murder is an extremely serious and obviously by its nature, violent offense. And particularly, if you’ve got the mental ability to process the idea of murdering both your parents in cold blood, that’s a grave public safety concern,” Bonakdar said. “The arguments on the other side are that at some point, time does heal wounds and that people can be rehabilitated and everyone is worthy of redemption. This is the argument that will be made on behalf of the Menendez brothers. While that may be true in some instances, I guess that remains to be seen for the Menéndez boys.”
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One of the roadblocks holding up the hearing stemmed from the Comprehensive Risk Assessment (CRA) report, which was a psychological exam ordered by Newsom’s office and has become the biggest hurdle for the defense to overcome.
The brothers’ attorney, Mark Geragos, filed a recusal motion against Hochman following Judge Michael Jesic’s decision to reschedule their hearings until May. A recusal motion requests that the individual steps away from a case because of a potential conflict of interest or bias that prevents them from operating impartially.
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There was also an accusation of a Marsy’s Law violation, which protects victims’ families, that took place when prosecutors showed graphic crime scene photos of the murder, that led to the hospitalization of an elderly aunt of the brothers, and something that family members claimed that they had never seen in 35 years.
Hochman’s office said prosecutors did not intend to “cause distress or pain” to those in attendance at the hearing.
“To the extent that the photographic depiction of this conduct upset any of the Menendez family members present in court, we apologize for not giving prior warning that the conduct would be described in detail not only in words but also through a crime scene photo,” Hochman’s office wrote in a previous statement shared with Fox News Digital.
The judge declined the Menendez team’s request for the DA to be admonished for showing the crime photos, but asked both sides to provide warning.
“It is extremely rare…where you have victims also supporting the defendants,” Jesic said. “I didn’t even think about it when the picture went up.”
“It was a gruesome murder,” he continued. “If anyone is uncomfortable, maybe they shouldn’t be here.”
Lyle and Erik Menendez will be back in court on May 9 as the decision of whether they will be released hangs in the balance.
They are already scheduled to appear before the parole board on June 13 as part of the CRA report ordered by Newsom, who is considering the brothers’ clemency request – a separate potential path out of prison.
Fox News Digital reached out to Newsom’s office for comment.
Fox News Digital’s Sarah Rumpf-Whitten and Michael Ruiz contributed to this report.