Menendez Retrials: a Necessary Decision : D.A. Garcetti, facing two hung juries, opts to try again

Perhaps at one point Los Angeles County District Attorney Gil Garcetti, elected in November, 1992, looked at all the major cases in his office and figured that the Menendez murder case was scarcely the worst of the varied and troublesome lot he had inherited. For one thing, at least the trial issues wouldn’t be racially polarizing, with a possible urban explosion hanging on the outcome. For another thing, as some of the prosecutors must have chuckled to themselves sarcastically, there was no videotape of the crime, and what a relief that was! For if there is one thing today’s prosecutors will no longer risk over-valuing, it’s the videotape as a slam-dunk witness for the prosecution.

In other words, the Menendez trial wasn’t Rodney King. So how much of a nightmare could it be?

No one would say that now.

For, six months later, two separate trials later, hundreds of witnesses later and dozens of hysterical or tasteless or just plain bizarre episodes of witness-stand testimony later, justice in the trials of Erik and Lyle Menendez is no closer to realization. For on Friday, two weeks after the Erik Menendez jury was declared hopelessly deadlocked, so too were the 12 persons good and true who had deliberated for 25 days in the case of brother Lyle.

Deadlocked.

So now what is the district attorney to do? The trial judge, Stanley M. Weisberg, thought the facts of the case strong enough that he told both juries they could convict on anything from murder-one to manslaughter, but not to consider acquittal. However, unless a retrial is mounted, acquittal would be the practical result of this twin mistrial.

On Friday Garcetti did not appear to be agonizing over the question. The two brothers, who admitted to the Aug. 20, 1989, shotgun slayings of their wealthy parents but pleaded special circumstances as long-suffering victims of abuse, would be tried again, said the district attorney, firmly. That decision is problematic--and inevitable.

The defendants appear likely to continue to enjoy the benefits of attorneys who have mounted powerful, imaginative defenses--that, in effect, the two sons were driven to the insanity of parricide by the brutal and exploitative circumstances of their wrenching upbringing. And the new trials--two separate ones are necessary because of differences in admissible evidence in each of the brothers’ cases--aren’t likely to be any shorter or less lavishly costly than the first go-round.

For these formidable reasons alone it is to be hoped that Garcetti isn’t just whistling in the dark, gambling on more receptive juries, praying that the Menendez brothers will not be as apparently effective with jurors the second time as the first.

Indeed, it is to be devoutly hoped that he would not risk yet another panoramic ordeal without the promise of additional material evidence or substantial new prosecutorial insight or strategy to enhance the chances that the taxpayers’ additional money will be spent with result.

But, granting all these reservations, in the end it must be said that Garcetti did what he had to do. The district attorney himself put the issue quite well: It was not an issue of winning or losing but of doing justice. The office of district attorney exists precisely for that reason: to serve as the people’s agent in the achievement of a measure of justice. By this standard, Garcetti suggested, he believes he has an “ethical, professional and moral responsibility to go forward� with a retrial.

Parricide is an ancient, powerful crime, one that causes ever-greater revulsion as the level of a society’s civilization increases. It should be the inclination of the people to support a prosecutor who, weighing a case this grave, says he must in good conscience proceed--to have these cases decided one way or the other.

Sometimes you shouldn’t nickel and dime justice.