Ex-Prosecutor Talks Menendez Brothers’ Resentencing As DA’s Decision Looms

A former federal prosecutor told Newsweek he expects Los Angeles County District Attorney George Gascón to push for the resentencing of the Menendez brothers, with a decision expected in the coming days.

“He’s [Gascón] less than two weeks away from a highly contested election here in LA,” Neama Rahmani said. “All signs point to him agreeing to a resentencing.”

The brothers shot their father, José Menendez, and their mother, Kitty Menendez, a total of 14 times during an attack inside their Beverly Hills home in 1989.

Lyle, who was then 21, and Erik, then 18, admitted they shot their Hollywood executive father and mother because they feared their parents were about to kill them to prevent the disclosure of the father’s alleged long-term sexual molestation of Erik.

On February 2, 1996, the jury convicted both brothers of first-degree murder, and they received life sentences without the possibility of parole. The verdict highlighted the complexity of the case and the differing views on justice and mental health issues in the context of violent crime.

“There are people in my office who believe they should never get any relief, and others who believe they should,” Gascón told Newsweek. “I have now decided we will go through a thorough process of investigating both the new evidence for habeas and whether they have been rehabilitated for resentencing.”

George Gascón’s Contentious DA Race

Rahmani told Newsweek the contentious district attorney race could influence Gascón’s push for a decision in the Menendez brothers’ case.

The 2024 Los Angeles County District Attorney race is shaping up to be highly competitive between incumbent Gascón and challenger Nathan Hochman.

Gascón, known for his criminal justice reform policies such as reducing cash bail and opposing the death penalty, is facing criticism from those who believe his approach has compromised public safety.

Hochman, a former federal prosecutor, is focusing his campaign on restoring public safety and has garnered strong support from law enforcement groups.

Recent polls show Hochman leading by a significant margin, with one USC poll giving him a 24-point advantage over Gascón.​

Rahmani said if Gascón loses the upcoming race, “He is now a lame duck. The new DA is sworn in on December 2 here in LA, the new DA comes and says, ‘I disagree’, in which case it would be a huge mess.”

Newsweek reached out to Hochman regarding the Menendez brothers, however, he has not yet responded.

Although a hearing was set for November 29 to decide which path Gascón would pursue, he said in a CNN interview with Jake Tapper he intends to make a decision sooner.

“I plan to have a decision by the end of this week, which is what I promise,” Gascón said in the interview.

Option One: The Habeas Petition

Gascón told Newsweek his office is currently reviewing a 1988 letter written by Erik to his cousin about the alleged sexual abuse he endured by his father. The new evidence also includes a statement from a former Menudo member who claims he was also sexually assaulted by José.

Rahmani told Newsweek the habeas petition faces several legal challenges.

Rahmani, after prosecuting drug and human trafficking cases with the Department of Justice, became Director of Enforcement for the Los Angeles City Ethics Commission. He is also the co-founder and president of West Coast Trial Lawyers, a personal injury law firm based in California.

He said it requires proving both a constitutional violation and prejudice, meaning the outcome of the trial would have been different given the new evidence. Even if there was a violation, such as evidence of sex abuse not being presented in the second trial, showing prejudice is a high legal hurdle.

“The reason is this, even if you’re sexually abused, that’s not a license to kill your abuser,” Rahmani said. “And even if it was, with respect to José, it’s a very difficult argument with respect to Kitty, the mom.”

A habeas petition is a legal document filed in court to challenge the lawfulness of a person’s detention or imprisonment. It asserts the individual is being held without sufficient legal justification and seeks to have the court review the case, presenting new evidence.

Rahmani told Newsweek Gascón can admit error and concede, however, he said, “I’m not sure he even gets there with the prejudice aspect of the habeas petition. It’s a very extraordinary remedy. It’s rarely granted.”

Option Two: Resentencing

“The two young men have spent 35 years in prison. They have allegedly done everything they’ve been asked to do, including going to college and working as mentors for others,” Gascón told Newsweek. “They have also completed extensive rehabilitative work. The question is whether to continue their incarceration or give them another chance. That’s the other avenue we’re evaluating.”

Rahmani believes Gascón is likely to opt for resentencing Erik and Lyle rather than proceeding with the petition.

He said if Gascón agrees to a resentencing, the decision will then move to Judge William Ryan. The judge can either uphold, reject, or modify the sentence.

If the judge approves, Lyle and Erik’s sentence will be reduced from life to time served, meaning they could be released from prison within days.

However, Rahmani said, “The judge can reject the request for resentencing if the judge believes that the brothers pose an unreasonable risk to the public, basically, they’re dangerous. Or, the judge can take a hybrid approach. The judge could say, ‘Well, I’m not going to give them time served, but I’m going to give them 25 to life’, which is what murderers generally get in California when there’s no special circumstance.”

Rahmani said if Ryan modifies their sentence to 25 years to life, the brothers would need to appear before a parole board, which would then decide their release. Alternatively, Ryan could impose a 50-years-to-life sentence, requiring them to serve an additional 15 years before becoming eligible for parole.

Gascón said on ABC’s IMPACT x Nightline, “I believe given the totality of the circumstances, I don’t think they deserve to be imprisoned until they die. I don’t believe that.”

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