Will the Menendez brothers be set free? How the parole board, the governor and a new D.A. could change things

Los Angeles County Dist. Atty. George Gascón’s blockbuster announcement that he will seek to have Erik and Lyle Menendez resentenced for their parents’ brutal murders marked the first time the brothers had hope of leaving prison since their convictions nearly 30 years ago.

It’s also simply the first step in a long process.

Although Thursday’s announcement drew praise from the brothers’ celebrity supporters and loved ones — and condemnation from critics who think Gascón is pulling an October surprise to boost his flagging reelection bid — the brothers’ hopes of release still hinge on decisions from a series of arbiters: an L.A. County judge, the state parole board, Gov. Gavin Newsom and the potential inauguration of a new district attorney come December.

The brothers were convicted in 1996 of murder with special circumstances in the brutal shotgun killings of their parents, Jose and Kitty Menendez, inside their Beverly Hills home. The only punishments for that crime under California law are the death penalty or life without parole. But on Thursday, Gascón said he would seek to have them resentenced to a simple murder charge, which would make them eligible for parole because the killings were committed when the brothers were less than 26 years old.

In a 57-page motion made public late Thursday, Gascón’s prosecutors argued that the brothers are no longer a threat to public safety and should be released given their exemplary behavior while in custody.

Both brothers got married and obtained college degrees in prison, according to the motion, and started programs that benefit other inmates, including meditation groups and a “green space” project. Corrections staff rarely had to discipline them, with only one allegation of violence being made against either brother in their nearly 30 years in prison, according to the motion.

In recent months, much of the attention on the brothers’ case has focused on a habeas motion seeking to overturn their convictions. Attorney Mark Geragos put forward new documentation to corroborate the brothers’ claims that the killings were motivated by years of sexual abuse at the hands of their father. At their trial, prosecutors contended Erik and Lyle killed their parents in order to gain access to their inheritance early.

But legal experts say the brothers might have a more direct path to freedom through resentencing.

“Assuming that they’ve played by the rules, and they’ve been in custody as long as they have and they have only minor violations, that would fit the profile of someone who qualifies for resentencing,” said Laurie Levenson, a professor at Loyola Law School in Los Angeles and a former federal prosecutor.

Veteran Los Angeles County Superior Court Judge William Ryan will review the case later this year. He could immediately grant the petition, but it’s more likely that he would hold a hearing where many of the family’s loved ones could speak, along with prosecutors opposed to Gascón’s decision.

Gascón acknowledged Thursday there was not “universal agreement” on the case in his office, with some prosecutors opposed to the idea that the brothers should be resentenced. Another faction in the office had pushed Gascón to seek to resentence the brothers to manslaughter, which would have made them eligible for immediate release if Ryan granted the petition, according to two sources with direct knowledge of Gascón’s thinking.

The sources requested anonymity in order to discuss the case candidly. Experts said that move might have been a bridge too far for Ryan and backfired.

“Gascón’s decision was probably the safest avenue he could pick,” Levenson said.

If Ryan grants the petition, the state parole board would then weigh in. Kathy Cady, a former prosecutor turned victims rights attorney who represents Kitty Menendez’s oldest brother, said the parole board tends to approve releases if an inmate’s prison record is as nearly spotless as what’s described in the motion.

As of Oct. 23, the board granted parole in approximately 31% of the cases it heard this year in which it rendered a decision, according to California Department of Corrections and Rehabilitation data.

Even then, Newsom could reject the parole board’s findings. Under California law, the governor can block the board’s decision to grant parole if he finds evidence that the brothers’ release posed an “unreasonable risk to the public.”

Newsom has blocked the release of a number of high-profile defendants in the California prison system, including Sirhan Sirhan, the assassin convicted of killing Robert F. Kennedy in Los Angeles. He also blocked the release of Charles Manson devotee Leslie Van Houten on three different occasions before stepping out of the way of an appellate court decision last year.

A spokesperson for Newsom referred questions about the Menendez brothers to the corrections department.

Attorney Nancy Tetreault, who represented Van Houten, said she believes Newsom will block the brothers’ release due to the intense media attention on the case. Doing so, she said, would trigger a lengthy court battle.

“When you have a high-profile client, you can expect to have several parole hearings because it is my experience that the governor will likely reverse the release,” she said. “When that happens you have to go to [the] Court of Appeal and show why the governor is wrong.”

Gascón’s decision could also be upended if he is no longer in office by the time the process plays out in court. Some polls show Gascón’s challenger in the November election, former federal prosecutor Nathan Hochman, leading by as much as 30 points among likely voters. Hochman has not taken a public position on the Menendez case, but has said he intends to review the decision if he displaces Gascón.

“In that particular case, I would analyze the thousands of pages of confidential prison records, the transcripts from both trials and the voluminous exhibits, as well as speak to the prosecutors, law enforcement, defense attorneys, experts and victims’ family members,” he said in a statement. “Only at that point would I be in the position to properly evaluate whether the resentencing request is correct.”

Levenson said it’s unlikely Hochman could intercede, however, if Ryan grants the resentencing petition before Gascón leaves office.

Times Staff Writer Salvador Hernandez contributed to this report.