Gov. Newsom orders risk assessment in Menendez brothers case

Gov. Gavin Newsom has ordered an investigation into whether Lyle and Erik Menendez pose a public safety risk as part of the ongoing process to determine whether the brothers will be released from prison, where they are serving life sentences for the shotgun murders of their parents at the family's Beverly Hills mansion.

Newsom weighed in on the case about a month ahead of a resentencing hearing in Los Angeles. He said he has notified Los Angeles County District Attorney Nathan Hochman and the brothers' attorney that he has directed the California Board of Parole to begin its risk assessment investigation into the application for commutation.

The risk assessment, conducted by public safety and forensic psychology experts, is typical procedure in cases involving prisoners up for parole. The Menendez brothers have not been recommended for parole, but Newsom said the risk assessment was started to provide transparency and more information before any next steps.

"I've been getting a lot of questions, a lot of calls over something that's getting a lot of attention, unsurprisingly, and that's what's going on with the Menendez brothers," Newsom said. "The question for the board is a simple one. Do Lyle and Erik Menendez do they pose… unreasonable risk to public safety?"

The findings will be made available to the judge presiding in the resentencing motion and the LA County prosecutor's office, Newsom said. It was not immediately clear when the risk assessment will be complete, but the resentencing hearing is scheduled for March 20 and 21.

That analysis usually includes what led a person to commit the crime, their behavior in prison and whether they are likely to repeat the offense.

If, eventually, the brothers were recommended for parole by the state board, the matter would be placed before the governor for a final decision. The parole process involves several steps before reaching that point and offers one legal avenue toward freedom for Lyle and Erik Menendez, convicted in 1996 of the murders of their parents in 1989.

"There is no guarantee of outcome here," Newsom said, adding his office conducts dozens of such risk assessment reviews on a regular basis. "This process simply provides more transparency in the process, which I think is important in this case, as well as provides us with more due diligence before I make any determination for clemency."

Menendez attorneys Mark Geragos and Cliff Gardner provided NBCLA with a statement after the governor's announcement.

"The Governor has ordered the Parole Board to conduct a Comprehensive Risk Assessment of both Erik and Lyle Menendez," Geragos and Gardner said in the statement. "Along with scores of Jose and Kitty Menendez’s family members who have fought for years to see Erik and Lyle have a chance to finally come home, we are grateful for the Governor's decision. The family realizes that the Governor’s action does not mean he will commute the sentences. Instead, this initial step reflects the Governor's considered decision to at least obtain the information required to make a fair decision as to whether Erik and Lyle, after 35 years in prison, have done the hard work necessary to have a chance at a life outside prison. Jose and Kitty’s family members, as well as Erik and Lyle, can ask for nothing more."

Newsom weighed in on the case after Hochman made clear on Friday his opposition to a new trial for Lyle and Erik Menendez. On Monday, Hochman said that he is still deciding on resentencing.

In a lengthy news conference Friday, Hochman said that his office will oppose a motion by defense attorneys seeking a new trial for the brothers and released a video from his office detailing the legal avenues in the decades-old case. The new trial, requested in a habeas petition before the court, was just one of the paths that could eventually lead to the brother's release from prison.

A resentencing recommendation by the court would then go to the state parole board. If approved by the board, the decision would go to Gov. Newsom, who would have 120 days affirm, reverse or modify the recommendation.

Hochman said his position on re-sentencing will take into account allegations of sexual abuse by Jose Menendez because California law requires such consideration.

"Since it is one of the factors taken into consideration we would consider it," Hochman said.

Re-sentencing is separate from the writ of habeas corpus Hochman addressed at Friday's news conference. The habeus petition seeks to challenge the legitimacy of the convictions and life sentences for the murders.

"The people believe it should be denied," Hochman said of the 2023 "habeas" motion.

The brothers' attorneys argued in the petition that they had new evidence to present related to allegations that the brothers' father sexually abused Erik Menendez. At Friday's news conference, Hochman cast doubt on the evidence of abuse and said it was not pertinent to the case.

“Sexual abuse in this situation may have been a motivation for Erik and Lyle to do what they did, but it does not constitute self-defense,” Hochman said.

He also characterized the brothers' own testimony of sexual abuse as untrustworthy, saying they presented different explanations for why they killed their parents.

In a statement Friday, family members supporting the brothers' release criticized Hochman.

"District Attorney Nathan Hochman took us right back to 1996 today," the Justice for Erik and Lyle Coalition said. "He opened the wounds we have spent decades trying to heal. He didn’t listen to us. We are profoundly disappointed by his remarks, in which he effectively tore up new evidence and discredited the trauma they experienced.

"To suggest that the years of abuse couldn’t have led to the tragedy in 1989 is not only outrageous, but also dangerous. Abuse does not exist in a vacuum. It leaves lasting scars, rewires the brain, and traps victims in cycles of fear and trauma. To say it played no role in Erik and Lyle’s action is to ignore decades of psychological research and basic human understanding."

The group planned to speak at 2 p.m. Wednesday, but later cancelled the news conference.

Hochman also announced the release of a video from the officer titled, "The Anatomy of the Menendez Case." He said the video provides "insight into the workings of the criminal justice system, using the Menendez case as a framework to explain legal proceedings."

Hochman said Monday he went before cameras Friday and released the DA's office video, in part, because the Menendez case is a teachable moment about the country's justice system.

"If it's the Menendez case that got people interested the criminal justice system, that's great," he said. "I hope they learn as much as they can about this case, but don't stop with this case. There are criminal cases going on every single day in the county, across this state and across this nation. I certainly encourage everyone to get involved in the criminal justice process."

Resentencing was placed on the table in October when then-Los Angeles County District Attorney George Gascón formally recommended that the brothers, who remain in prison, be resentenced for the 1989 murders. In 1996, after two trials in 1993 and 1995, the brothers were convicted by a jury of first-degree murder and sentenced to life in prison without the possibility of parole. They have both served approximately 35 years in custody.

Hochman, who defeated the incumbent in the November election, said he would need time to review the case before moving forward on re-sentencing.

A hearing was held in November at the Van Nuys Courthouse to discuss the next steps in the petition for a new sentence. The brothers could be heard, but not seen, on a feed from a San Diego prison.

They were expected to appear on a video feed, but technical problems prevented them from being seen together in court for the first time in decades.

The judge granted additional time for Hochman, who took office on Dec. 2, to review the case and related trial documents.