Samantha Stutsman, See the Case of Monsters: The Lyle and Erik Menendez Story Side-by-Side with the Real People they Play, People (Sep. 19, 2024), https://www.today.com/popculture/tv/monsters-lyle-erik-menendez-cast-vs-real-people-rcna168424.
Authored by Leslie A. LaTurno
With the development and advancement of technology and media, the tools in which attorneys can use to advocate for their clients have expanded as well. But how can criminal defense attorneys use technology and media to their advantage?
Lyle and Erik Menendez were convicted of first-degree murder in the 1989 killings of their parents, Kitty and Jose Menendez.[1] The brothers––who were 18 and 21 at the time of the murders––were sentenced to life in prison without the possibility of parole.[2] Both of the brothers’ first trials ended in a mistrial, with their second trials having procedural bars to the kinds of evidence allowed to be permitted.[3] Specifically, their attorneys could not put on evidence that went to the alleged sexual, physical, and mental abuse the brothers faced by their parents.[4] Because the self-defense theory presented by the defense attorneys hinged on this testimony and evidence, the lack thereof resulted in guilty verdicts by the juries.[5] This chain of events is highlighted in Netflix’s most recent viral true crime documentary, Monsters. While this case garnered media attention at its conception, society’s stance on mental health and rehabilitation has drastically changed since the 90s.[6]
The “1960s to the early 2000s” highlighted a time period in which crime riddled California took a “tough on crime” stance –making an example of high profile defendants and prosecuting to the highest extent of the law.[7] However, as times have changed, the state has put in place new statutes in an effort to alleviate the harsh sentencings imposed during that period.[8] These post-conviction relief routes are designed to allow the courts to have an avenue to correct overly punitive or unjust rulings.[9] While every convict has the federal right to appeal under 28 U.S.C. § 2255, this appeal may only be used once and is time-barred for one year after the prescribed requirements. This is typically “the date on which the judgment of conviction becomes final.”[10] Once a convicted defendant has used this appeal or the time has lapsed, the defendant must look to their state’s post-convicted remedies to see what relief could be afforded.[11]
“In California specifically, post-conviction relief can be afforded at any time upon the recommendation of the secretary or the Board of Parole Hearings in the case of a defendant incarcerated in state prison, the county correctional administrator in the case of a defendant incarcerated in county jail, the district attorney of the county in which the defendant was sentenced, or the Attorney General if the Department of Justice originally prosecuted the case, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, whether or not the defendant is still in custody, and provided the new sentence, if any, is no greater than the initial sentence.”[12]
Further, the state has given District Attorneys immense discretion in recommending any case for re-sentencing to the court.[13] This avenue of relief, coupled with the social outrage from Monsters: The Lyle and Erik Menendez Story, presented the perfect scenario for Lyle and Erik Menendez. Following Monsters: The Lyle and Erik Menendez Story and The Menendez Brothers, millions of viewers took to social media in support of the brothers and expressed discontent that the pair remain incarcerated today.[14] Roughly 114,000 people have signed a petition in support of freeing Lyle and Erik.[15] News outlets from “ABC News to Fox News, . . . have dissected the tragic event and every stage of their lives since.”[16] Through Cal. Penal Code § 1172, and because of the large support in favor of Lyle and Erik, George Gascón, the Los Angeles County District Attorney, recommended that the brothers be re-sentenced.[17] Following this recommendation, a hearing in front of the court will be set, and a judge will “make a ruling based on what is presented.”[18]
This is not the first time that a “true crime” media craze has provided a sort of post-conviction relief to a convicted defendant. In similar fashion, Gypsy Rose Blanchard was convicted of second-degree murder and sentenced to ten years in prison for the 2015 slaying of her mother.[19] Her co-conspirator and boyfriend at the time were sentenced to life in prison without parole.[20] Years later, HBO’s Mommy Dead and Dearest (2017), Hulu’s The Act (2019), and various related documentaries and docuseries were released detailing the physical and psychological abuse Gypsy Rose faced at the hands of her mother.[21] The public’s reaction to the stories of severe medical abuse leaned towards empathy and support for Gypsy Rose and contention over whether she should be in prison.[22] In 2023, Gypsy was released early after only serving eighty-five percent of her ten-year sentence.[23] The relevant state law required that Gypsy serve a minimum of eighty-five percent of the original sentence to be eligible for parole.[24] While the on-goings of her parole hearing were not public, it is likely that the mass support for her release played a strong factor in the immediate approval of her parole.
Why does all of this matter to attorneys? Attorney’s jobs as advocates do not end at conviction and sentencing.[25] The media can now become a tool for attorneys to rectify convictions and sentencings that do not align with society’s view on certain crimes. How do we use it? First, find the rules in your respective state regarding post-conviction relief.[26] If your state provides a provision that allows for discretion in convictions or sentencings, focus on the requirements of such provision. For example, California, Washington, Oregon, Illinois, and Minnesota have all passed discretionary provisions that allow prosecutors to initiate resentencing.[27] Focus on finding those with the discretion to recommend or initiate review. Next, attract the attention of local or national media. This could include journalists, producers, online campaigns, and all forms of media. Work with the media to tell the story in a way that sheds light to the injustices faced by the defendant(s).[28] “By presenting a story that strongly supports one side of a case (whichever side that might be), the creators are essentially showing the ‘right’ side for their viewers to be on.”[29] If an attorney can successfully accomplish the above, there is hope for post-conviction relief.
[1] See Michael Arntfield, Expert insight: The Menendez brothers’ case and the moral paradox of true crime, Western News (Oct. 30, 2024), https://news.westernu.ca/2024/10/menendez-brothers-and-true-crime/.
[2] See Alana Wise, DA recommends resentencing of Menendez brothers for the 1989 slaying of their parents, NPR (Oct. 24, 2024), https://www.npr.org/2024/10/24/nx-s1-5163531/menendez-brothers-murders-resentencing-recommended.
[3] See id.
[4] See Kate Christobek, The Menendez Brothers Could Be Released From Prison. Here’s What to Know., N.Y. Times (Oct. 31, 2024), https://www.nytimes.com/article/menendez-brothers-case.html (“The judge, Stanley M. Weisberg, prohibited their lawyers from using the ‘abuse excuse,’ essentially leaving only two options for jurors: an acquittal or a murder conviction.”).
[5] See id.
[6] See Jessica Walthall, The Evolution of the Mental Health Movement, National Alliance on Mental Health (June 1, 2020), https://www.nami.org/advocate/the-evolution-of-the-mental-health-movement/.
[7] Steven Greenhut, How California Softened Its ‘Tough-On-Crime’ Approach, R Street Institute (July 2017), https://www.rstreet.org/wp-content/uploads/2018/04/102-1.pdf; Kendall Fisher, No Time Like the Present, Except the Past Fifty Years: Why California Should Finally Adopt the Model Penal Code Sentencing Provisions, 49 The U. Of Pac. L. Rev. 661, 669 (2018) (“Although the ‘tough on crime’ era peaked in the 1990s, it remains a popular slogan among politicians seeking to win elections by promising a heavy-handed approach to crime, and capitalizes on public fears by making examples out of recent high-profile crimes.”).
[8] See generally Cal. Penal Code §§ 17(b), 745, 1016.5; S.B. 731, 2022 Gen. Assemb., Reg. Sess. (Ca. 2022); S.B. 483, 2021 Gen. Assemb., Reg. Sess. (Ca. 2021).
[9] Greenhut, supra note 7.
[10] 28 U.S.C. § 2255 (f)(1).
[11] See Carlos M. Vazquez & Stephen I. Vladeck, The Constitutional Right to Collateral Post-Conviction Review, 103 Va. L. Rev. 905, 910-11 (2017) (“States are under no obligation to permit collateral attacks on convictions that have become final, and if they allow such attacks, they are free to limit the circumstance in which claims may be relitigated.”) (citing Foster v. Chatman, 136 S. Ct. 1737, 1759 (2016)).
[12] Cal. Penal Code § 1172.1(a)(1).
[13] See A.B. 2942, 2018 Gen. Assemb., Reg. Sess. (Ca. 2018).
[14] See Jeetendr Sehdev, The Menendez Brothers Mania: America’s Obssession With Bad Boys, Forbes (Oct. 28, 2024), https://www.forbes.com/sites/jeetendrsehdev/2024/10/28/the-menendez-brothers-mania-americas-obsession-with-bad-boys/.
[15] See Menachem Enayatian, Free the Menendez Brothers, Change (last visited Nov. 8, 2024) https://www.change.org/p/jail-for-getting-abused-free-the-menendez-brothers.
[16] Sehdev, supra note 14.
[17] See Cindy VonQuednow & Dalia Faheid, What’s next for the Menendez Brothers as DA recommends their resentencing decades after their parents’ killing, CNN (Oct. 25, 2024), https://www.cnn.com/2024/10/25/us/erik-lyle-menendez-brothers-resentencing-whats-next/index.html.
[18] Id.
[19] See Marlene Lenthang, Gypsy Rose Blanchard released from prison early after serving time for the murder of her abusive mother, NBC News (Dec. 28, 2023) https://www.nbcnews.com/news/us-news/gypsy-rose-blanchard-released-prison-early-serving-time-murder-abusive-rcna131423.
[20] See id.
[21] See Anna Kaplan & Ariana Brockingston, 6 movies, documentaries and shows about Gypsy Rose Blanchard to watch, Today (July 10, 2024), https://www.today.com/popculture/gypsy-rose-blanchard-movies-documentaries-rcna132066. (“Blanchard is thought to be a victim of Munchausen syndrome by proxy, a psychological disorder in which a caretaker purposefully makes someone sick. In 2015, Blanchard’s then-boyfriend, Nicholas Godejohn, stabbed her mother to death while she hid in another room.”).
[22] See The internet’s unfortunate idolization of Gypsy Rose Blanchard, Daily Free Press (Jan. 22, 2024), https://dailyfreepress.com/2024/01/22/the-internets-unfortunate-idolization-of-gypsy-rose-blanchard-editorial/.
[23] Aaron A. Bedoya, Is Gypsy Rose out of Prison? Details to know about release, El Paso Times (Dec. 28, 2023) https://www.elpasotimes.com/story/news/2023/12/28/gypsy-rose-released-details-to-know-about-age-how-long-in-prison/72049377007/.
[24] See Mo. Rev. Stat. § 558.019.3 (2024).
[25] See David M. Siegel, My Reputation or Your Liberty (or Your Life): The Ethical Obligations of Criminal Defense Counsel in Postconviction Proceedings, 49 The U. Of Pac. L. Rev. 661, 669 (2018).
[26] See, e.g., Rule 32, Ala. R. Crim. P.
[27] Where is PIR happening?, For the People (last visited Nov. 8, 2024), https://www.fortheppl.org/faqs#:~:text=Since%202018%2C%20five%20states%20have,Florida%2C%20Massachusetts%2C%20and%20Maryland.
[28] Kathryn A. Doughty, Exploring the existence of a “documentary effect: examination of true crime documentaries on judgments of evidence manipulation and perceptions of police (May 2018) (ASU Electronic Theses and Dissertations) (Conducting a study that poses a correlation between true crime media’s portrayal of the defendant as innocent or acting with a defense and the viewer’s positive perception of the defendant).
[29] Ryan Murphy, Crime Documentaries: Are They Really Helping?, BC Law: Impact (Nov. 3, 2016), https://bclawimpact.org/2016/11/03/crime-documentaries-are-they-really-helping/.
American Journal of Trial Advocacy 