Los Angeles County district attorney election results add pall of uncertainty over possible release of Lyle and Erik Menendez

By Ray Sanchez and Matthew J. Friedman, CNN

(CNN) — The unseating of progressive Los Angeles County District Attorney George Gascón in a closely watched election has added an eleventh-hour pall of uncertainty in the move to have Erik and Lyle Menendez resentenced nearly 30 years after their convictions for murdering their parents.

Nathan Hochman, a former federal prosecutor who defeated Gascón after a campaign claiming the DA’s policies failed to ensure public safety, told CNN on Wednesday he will need time to go over case files before taking a position on the resentencing. Hochman takes office in early December, and a hearing on resentencing will be held on December 11.

But legal experts said the potential release of the brothers has already been set in motion, with a court likely to hear soon from loved ones of the Menendez family as well as prosecutors opposed to the decision to resentence them. If the court grants the request, the experts said, it will then fall on the state parole board to approve or deny their release. Still, the experts insist, the case should not be an immediate priority for the newly elected top prosecutor of America’s most populous county – home to nearly 10 million people.

“Before I can make any decision about the Menendez brothers’ case, I will need to become thoroughly familiar with the relevant facts, the evidence and the law,” Hochman said in a statement.

“I will have to review the confidential prison files for each brother, the transcripts from both trials, and speak to the prosecutors, law enforcement, defense counsel, and the victims’ family members. Only then can I make a decision. If for some reason I need additional time, I will ask the court for that time.”

In an interview, Hochman said he would move as “expeditiously” as possible to review the case.

“If I ask for a delay, it won’t be a delay for delay’s sake because I think the Menendez brothers, the victim family members, the public deserve to have a decision done as soon as it can be done in a thorough manner,” Hochman told CNN.

Gascón last month filed a motion recommending a judge resentence the siblings following a review that came after defense attorneys said in 2023 they had new evidence pointing to abuse by their father. Hochman has criticized the timing of the move as a political ploy.

Hochman will have the power to withdraw the office’s resentencing recommendation, USC Gould School of Law professor Aya Gruber said. But she doubts he will go that far.

“Unless there’s some contingency that immediately bubbles up and says, ‘You know, this is horrible. This is a miscarriage of justice,’ I can’t imagine that this is going to be a priority for the new DA,” she said. “It’s definitely not going to be his first order of business.”

Laurie Levenson, a law professor at Loyola Marymount University in Los Angeles, told CNN it’s unlikely the new district attorney will interfere with the motion.

“Their best door for getting relief is the motion to reduce the sentence and they might be able to get the court to do that. And I don’t know that Hochman is all that eager to interfere with that motion,” Levenson told CNN, referring to defense efforts to have the brothers released.

“I think that you’re not going to see Hochman having a press conference about the Menendez case. He can just quietly let the court decide, especially when it looks like other people will be opposing (the resentencing) during the court hearing.”

If the court rules against their release, “then it’s really over,” Levenson said of the resentencing bid. But she said recent changes in sentencing laws coupled with the amount of time the brothers have already served could give them “a pretty good shot” at freedom.

Still, there are other paths to their release. Gascón wrote letters to California Gov. Gavin Newson supporting the brothers in a bid for clemency, which could free the brothers immediately – possibly before Hochman’s term as district attorney begins. Newsom’s office declined to comment, stating clemency requests were confidential. A lawyer for the brothers has not confirmed to CNN whether they have made a formal clemency request.

“I don’t think he’ll do any favors for the Menendez brothers, but I don’t know that he wants to sort of interfere at this stage unless he feels really strongly about it and it’s unclear that he does,” Levenson said of the incoming district attorney.

Gruber said Hochman could ask for the December 11 hearing to be moved to a later date and divert attention to his new term away from the Menendez case.

Gascón during his reelection campaign made the request to resentence Erik and Lyle Menendez from life in prison without parole to life in prison with parole for the 1989 killing of their parents, Jose and Kitty Menendez. Under California law, the brothers would be immediately eligible for parole because they were younger than 26 when they committed the crimes.

Gascón cited new evidence of years of sexual and physical abuse at the hands their father, the support of all but one of their family members, and behavior he said demonstrated rehabilitation during their nearly three decades in prison.

“I believe that they have paid their debt to society and the system provides a vehicle for their case to be reviewed by a parole board, and if board concurs with my assessment … they will be released accordingly,” Gascón said in an October 24 news conference.

The re-examination of the case comes decades after Jose and Kitty Menendez were fatally shot in their Beverly Hills mansion. Their sons, who were 21 and 18 at the time, were arrested less than a year later, in 1990, and convicted of first-degree murder six years later.

At their two high-profile trials, the brothers did not deny killing their parents but argued they should not be convicted because they acted in self-defense after enduring a lifetime of physical and sexual abuse by their father.

The first trial – one of the first cases to be televised – ended in a mistrial after jurors deadlocked on the charges. In their second trial, much of the defense evidence about sexual abuse was excluded, and the brothers were found guilty and sentenced to life in prison.

The brothers’ story has taken on new interest following the September release of the Netflix series, “Monsters: The Lyle and Erik Menendez Story,” co-created by Ryan Murphy and Ian Brennan. Netflix also released a documentary on the Menendez case, featuring both men discussing what led to the killings.

“The stage has been set for them to potentially be released but I also think … the new DA’s position has a lot to do with that,” CNN legal analyst Joey Jackson said of the brothers.

“It would be naive to suggest that a DA’s recommendation – and it’s a recommendation – is not otherwise really significant in terms of influencing a judge’s decision … But I do think public opinion is very much favoring the release of the Menendez brothers.”

Gascón came under fire during his tenure for pursuing an agenda centered on reducing incarceration, rejecting enhancements that extended sentences and a policy of not prosecuting “quality of life” misdemeanors associated with homelessness, such as trespassing and public urination.

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