Here’s how it would work

District Attorney George Gascón could announce as soon as this week that he wants to release the Menendez brothers from prison.

Lyle and Erik Menendez are serving life sentences for the August 1989 murders of their parents, Jose and Kitty. The Netflix series “Monsters” and the documentary “The Menendez Brothers” have brought renewed attention to their case and to the defense that they were both victims of their father’s sexual abuse.

Gascón, a reform-minded prosecutor, has shown some sympathy for their case, and he could agree to a defense request to reduce their sentences.

But if he does, that doesn’t mean the brothers will immediately walk free. A judge must still approve the request. And things could get complicated if Gascón – as expected – loses the November 5 elections, now just two weeks away.

So how could it play out?

Here’s an explanation:

What is Gascón likely to do?

If Gascón decides to show leniency to the brothers, he has two options. He can grant their petition for habeas corpus and ask Judge William Ryan to vacate their judgments and sentences. Or he can ask a judge to resent them.

The latter is more likely. A habeas petition requires a high bar: new evidence has emerged that would likely have led to a different outcome at trial. But for taking revenge it is a much lower standard. All that is required is that the prosecutor believes that a reduced sentence is ‘in the interests of justice’.

How important is the new evidence?

Menendez’s lawyers submitted a petition for habeas corpus in May 2023. It included a letter Erik Menendez sent to his cousin in December 1988, eight months before the murders, which appears to confirm his claim of abuse. It also included a statement from Roy Rossello, a member of Menudo, who claims that Jose Menendez raped him in 1984. Gascón said the district attorney’s office received a photocopy of the letter, but the original has not been authenticated.

The new evidence is critical to the habeas petition, but is not required for resentencing.

What does the prosecutor’s determination that retaliation is “in the interests of justice” mean?

The factors leading to conviction are listed in state and Gascón law Special Guideline 22-05. This includes issues such as a defendant’s childhood trauma, such as “abuse, neglect, exploitation or sexual violence,” as well as the defendant’s behavior in prison. The prosecutor’s criminal unit is currently investigating the brothers’ prison file.

The brothers’ attorney, Mark Geragos, has said they have been model prisoners, that Lyle Menendez recently graduated from college and that they “clearly qualify” for retaliation.

According to the prosecutor’s office, 300 people were resentenced during Gascón’s administration, including 28 people convicted of first-degree murder and five serving life sentences without parole.

How quickly can this happen?

After the habeas petition was filed last year, Judge Ryan asked the district attorney’s office for an informal response. The deadline has been repeatedly postponed and is currently set for November 26. No hearings have been scheduled in the case, although Gascón incorrectly said a hearing was scheduled for November 29.

The prosecutor did not show much urgency on the issue until October 3 press conferencewhich came in response to media inquiries following the release of the Netflix show on September 19. (Gascón has said he won’t watch the show because he doesn’t want a fictionalized portrayal to enter his mind.)

Gascón has said he wants to give the case “finality” and is expected to take some action this week.

What would happen then?

If Gascón requests a new sentence, a judge must hold a status conference within 30 days. The judge could sentence the brothers on that date, or choose to schedule a hearing to review the request at a later date.

Should the judge grant the public prosecutor’s request?

No, but the prosecutor’s request is given a lot of weight. To deny the request outright, the judge must determine that the brothers currently pose “an unreasonable risk of endangering public safety.” That’s a high bar: it means the risk that the suspect will commit one of the few violent crimes.

But even if the Menendez brothers are entitled to reoffense under that standard, they are still not entitled in other words, Gascón can request that their sentences be reduced from life without parole to time served. But the judge could decide to reduce their sentences to, say, 50 years to life or 25 years to life.

Do the victims’ relatives have the right to be heard?

Yes. Marsy’s Law, a voter-approved amendment to the California Constitution, gives victims the right to be notified and heard in proceedings involving their cases, including hearings to discuss post-conviction release .

Most of Menendez’s family members support the brothers’ release. But Milton Andersen, Kitty’s brother, is against it. His attorney, Kathleen Cady, has filed a request to be notified of court dates and to be heard on the matter. She has also sought a meeting with Gascón’s office, but that has not happened yet.

What if Gascón loses?

Gascón is trailing badly in the polls. If he loses on November 5, he will remain in office until Nathan Hochman is sworn in on December 2. That might be enough time for a sentencing hearing.

If the Menendez proceeding is postponed beyond Dec. 2, Hochman could decide to change the agency’s position. The judge could then allow the request to be withdrawn, provided that Hochman’s office makes the withdrawal before a ruling on the merits is made and a legitimate reason is given for doing so. There would likely be an appeal to determine whether Hochman’s reasons were sufficient. The judge does not have to allow the withdrawal – he was able to keep Hochman on Gascón’s position.

Hochman has not taken a position on the issue, but has criticized Gascón’s handling of the case.

What happens if they are sentenced to an indeterminate sentence?

The brothers have already spent 34 years in prison. If the judge sentences them to, say, 25 years to life, they must go to the Board of Parole Hearings to determine if they are suitable for parole. If they were resentenced to 50 years to life, they would have to serve the balance of the stipulated portion before being eligible for parole.

Gov. Gavin Newsom would have the power to approve or reject the Parole Board’s recommendation.

Is this all about politics?

At the time of the two trials against the brothers, public opinion was strongly against them. In 1995 their defense team conducted a poll which showed that a majority believed they were guilty of first-degree murder.

Geragos and the Menendez family believe public opinion has changed in their favor in recent decades due to increased awareness of child abuse. In recent days, Gascón has been flooded with comments on TikTok urging him to free the brothers.

Hochman has argued that Gascón is using the Menendez case to displace other damaging narratives about his record in the final weeks of the campaign.

Tiffiny Blacknell, Gascón’s chief of staff, said Variety that it is “absurd” to think that he is pursuing clemency for the brothers for political gain.

“His biggest criticism is that he is weak on crime,” she said. “So releasing the two murderers does not seem to be the best move politically.”