Are Lyle and Erik Menendez about to go free?

The Menendez brothers—Lyle and Erik—committed a terrible crime more than 30 years ago. They were sentenced to life in prison. But suddenly they are having a moment. There’s a miniseries about them on Netflix. There’s a documentary, too. And there’s been a ton of TikTok videos made by people who are openly wondering: Should these two men still be behind bars?

“No one’s arguing that they didn’t kill their parents, but they’re saying the level of culpability would be so low that after 36 years, they should be out,” said Brian Buckmire, a criminal defense attorney and contributor at ABC News. I called him up because I wanted someone to walk me through how we got here. As someone who came of age around the time the Menendez brothers were arrested, their sudden reemergence has taken me by surprise.

Last week, the facts of the Menendez case suddenly became very relevant. In front of a Los Angeles criminal courthouse, the Menendez brothers’ family and their attorney gathered for what they called a “show of unity”—and a press conference. They said they had new evidence that the brothers’ crimes were inseparable from years of abuse they’d experienced at the hands of their father. And on Thursday, the Los Angeles County district attorney recommended that the brothers’ sentence be thrown out and they be resentenced and immediately eligible for parole.

On a recent episode of What Next, we spoke about why two of America’s most notorious criminals are asking to go free. Our conversation, which was recorded before the Los Angeles DA made his recommendation, has been condensed and edited for clarity.

Mary Harris: I have a strong sense memory of the Menendez brothers case, but I don’t have a lot of details. I just remember the broad outlines of the story: Two rich, handsome brothers killed their parents, and it took over the country. Can you fill in the details here?

Brian Buckmire: Lyle and Erik Menendez are from a very affluent family. The father, José Menendez, is a music executive. Cuban immigrant. American Dream type of story.

He clawed his way up to the top. And they were in Beverly Hills.

Exactly. But in 1989, at their Beverly Hills home, he and his wife, Kitty, are shot dead. At first the investigation thinks it’s a mob hit because of his connections with the music industry. But that doesn’t really hold water. It’s not until a year and change afterward that one of the brothers, Erik, tells his psychotherapist what happened—confesses to the murders. And that’s when the whole thing unravels for the brothers. They get arrested, charged with first-degree murder and special circumstances, specifically that they were lying in wait.

As the investigation goes, they went out the day before trying to get handguns, couldn’t get handguns, ended up buying shotguns because they had a quicker waiting period. Bought the ammunition, went to the home. The parents are watching a movie or TV or something. And they come up behind them and shoot them. Based on the trajectory of the bullets, the kill shot to the father is the back of the head and the mother is crawling away when one of the brothers reloads and then kills her. So, gruesome.

That reloading—I remember that detail because it was just so brutal. It’s like the mother was alive, and they reloaded and finished her off.

To say, OK, let’s go get more [bullets] and finish the job is a level of maliciousness that warrants a first-degree murder charge. When they go to trial, the argument is that they were going to inherit some millions of dollars.

They’d already gotten some money and been spending it, right?

Correct. In that time of them not being arrested, they live this lavish lifestyle. They go on a spending spree of cars and partying and all that.

One of them hired a tennis coach for a year for, like, thousands of dollars. It was outlandish.

That became the heart of the prosecution’s argument: This was about money. This was about wanting to live this lifestyle. Now, the defense made the argument that this is what California calls an imperfect self-defense.

What does that mean? 

The best way to do it is to describe what self-defense is: So, I punch you; you punch me. You technically assaulted me, but because you have the defense of self-defense, that crime goes away completely. You are not guilty by reason of self-defense. An imperfect self-defense is when you have the subjective belief that you’re being attacked and need to use force. But objectively, it’s unreasonable. We as a society just say, “No, that doesn’t make sense.”

They were victims of sexual abuse, and while that might not be a perfect reason to kill your parents when they’re not currently in the act of sexually abusing you, they subjectively believed that they were in hell their entire lives, that they were in a war zone—similar to the way that we now understand people who go through PTSD, similar to the way that we understand how women go through what we used to call “battered women syndrome,” what we now call “intimate partner violence,” that they’re in a constant sense of fight or flight because of the sexual abuse that they’re subjected to in that household.

In the initial trial, did this argument work?

The way I’m arguing it to you now, I’m cheating in a sense, as I’m arguing it to you with the knowledge of what I understand and what we all accept in 2024. In 1993, this argument was not fully developed in a way that you would apply to young men just because of the way we talked about sexual abuse and assaults based on gender or who was in power and who was not.

We assumed a victim could only be a woman?

Exactly.

So how did that play out in the first trial?

The first trial, to their benefit, was a mistrial. The jurors were on the fence. They were hung. They couldn’t decide guilt or innocence. And that makes a very strong argument for their appeal now.

The brothers were tried again in 1995. This time, a jury found them guilty, and they were both sentenced to life in prison without the possibility for parole. But recently, a high-profile criminal defense attorney named Mark Geragos has stepped in to argue the brothers should be freed. Geragos has had a lot of celebrity clients over the last two decades: Winona Ryder, Chris Brown, Michael Jackson. In the early 2000s, he also defended Scott Peterson, a man who murdered his wife, Laci, when she was eight months pregnant.

The argument that Mark Geragos is making is that in the second trial far less evidence about the sexual abuse was allowed in by the judge. And thus, the defense had less of a defense. When you’re left without the sexual abuse—and we have family members who said that his household was like that—you only have these young men killed their parents and then bought all this lavish lifestyle stuff. The argument is that’s why they were convicted.

It’s really hard to overstate how much this case took over the media landscape in the ’90s. I still remember this big Barbara Walters interview that the Menendez brothers did when they were in prison. They make the case they were abused by their father. But the takeaway moment was one brother saying, “I’m just a normal kid.” And then Barbara Walters interrupting him and saying, “Oh, Erik, you’re just a normal kid who killed your parents!” To me, it speaks to the fact that back in the ’90s the brothers didn’t do themselves a lot of favors in terms of their defense.

In law school we don’t really learn how to interact with the public through the media very well. That’s something that people are still learning today in 2024. I can’t really be too harsh on an attorney in 1989 to 1994, when O.J. Simpson was the first real criminal case where people were watching on TV, and the court of public opinion was just born.

You’re completely right: They probably didn’t do themselves any favors, but no one knew how to operate the court of public opinion.

Netflix isn’t the only reason for the renewed attention to this decades-old case. In 2023, a former member of the Puerto Rican boy band Menudo said that he had been drugged and raped as a teenager by the Lyle and Erik’s father, José Menendez. José had worked in the record industry for years. 

And then, another piece of evidence emerged: a handwritten letter from teenaged Erik Menendez, to a cousin, alluding to his own abuse. 

So when the brothers’ defense attorney, Mark Geragos, walked in to meet with the Los Angeles County district attorney last week, he was not just bringing nearly two dozen Menendez family members with him. He was also armed with a sworn affidavit from that boy band member and that long-buried letter, too. 

Geragos is saying, We have this new information, and if this information was presented at the time of trial, it would have changed drastically the result of the trial or, at least, the sentencing. And this detention is unconstitutional for X and Y reasons based on this new evidence. That’s the hearing that’s going to happen to determine: Is this letter true? Is this affidavit correct? Are we going to give you a new trial? Are we going to resentence you? Or do nothing?

So a judge will decide?

Correct. Prosecutors recommend, judges decide.

Why is the Los Angeles DA even considering going back and opening up this case again and reconsidering the sentencing?

District attorneys are elected officials, and George Gascón is currently in the middle of an election that he seems to, by all accounts, be losing left, right, and center. So, there is a theory that maybe getting this case done will help him get reelected. I don’t think that’s going to happen, based on the timing of this all. But I can see why a person would say this is strictly political.

The other theory is he started, when he got into office, the resentencing unit, and a big feather in his cap is that there have been 300 resentencings and only four people who have reoffended. And so, maybe his legacy is at play here.

[Editor’s note: On Thursday, Los Angeles District Attorney George Gascón recommended the Menendez brothers’ life-without-parole sentences be thrown out and they be resentenced and immediately eligible for parole. A hearing before a judge will likely take place in the next month. If a judge agrees with Gascón’s recommendation, a parole board must approve the brothers’ release before Gov. Gavin Newsom signs off on the plan. All of that could take a few months.]

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It strikes me that there are a lot of people who are wrongly imprisoned in this country. And very few of them are the subject of not one but two Netflix productions or a TikTok investigation. From the beginning, this case was all about privilege. Part of the reason why the Menendez brothers were convicted is because of their lavish spending spree after murdering their parents. Is their potential release about privilege too?

Absolutely. We only hear about the ones that hit the news. But there are so many cases of people who have been sentenced incorrectly, where evidence was not properly discovered, where it was not handed over, where defense attorneys and public defenders are screaming into the wind and trying to have people in similar situations have an ounce of what they’re receiving in terms of review of their case and consideration of the facts, especially in light of new scientific evidence or how we understand how trauma affects people. There are, unfortunately, far too many of those people who don’t get their story told.

But in having these cases, we tell the world that these exist. And I believe that when people know that this exists, they look out for it more. And when they see injustice, they speak about it more often, and we move to a more just place. I’m also maybe a blind optimist in that it’s moving in the right direction.