Menendez Tape Is Held Admissible : Courts: Judge’s ruling deals setback to lawyers for brothers accused of murdering their parents. Trial is likely to be prolonged several weeks.

An audiotape of a counseling session the Menendez brothers held with their Beverly Hills psychologist will be unsealed, the judge in their murder trial ruled Wednesday, awarding prosecutors a major victory but probably prolonging the proceedings for weeks.

The Dec. 11, 1989, session is the only one the brothers had with therapist L. Jerome Oziel in which they were tape-recorded. And although they insist they killed their parents in fear after years of sexual abuse, they apparently made no mention of molestation while discussing their family in the session.

Defense attorneys have fought hard to keep the tape secret, arguing that it is protected by various rules of confidentiality. Not even prosecutors had heard it.

But Van Nuys Superior Court Judge Stanley M. Weisberg ruled that there was no legal basis to keep it secret any longer.

The judge immediately released the hourlong tape to prosecutors, along with a 29-page single-spaced transcript.

Defense lawyers said Wednesday that they may have to bring both brothers back to the witness stand, as well as Oziel, his lover and various experts, all to explain what the tape means.

The defense had been close to resting in the trial, which is already in its 16th week.

Erik Menendez, 22, and Lyle Menendez, 25, are charged with first-degree murder in the Aug. 20, 1989, shotgun slayings of Jose Menendez, 45, a wealthy entertainment executive, and Kitty Menendez, 47.

Prosecutors contend that the brothers killed out of hatred and greed. The brothers testified that they killed out of fear after years of physical, emotional and sexual abuse.

Oziel, a key prosecution witness, testified that the brothers confessed to him about two months after the killings, on Oct. 31 and Nov. 2. Those visits eventually led to the brothers’ arrests when Oziel’s former lover, Judalon Smyth, who was at his office during one of the sessions, informed police.

Jurors have heard no testimony about the Dec. 11 session, which did not deal at length with the killings but focused on the Menendez family constellation, according to a state Court of Appeal decision.

Last week, however, prosecutors asked Weisberg for the Dec. 11 tape, saying it should be unsealed now that the brothers have testified that they killed out of fear.

That led to a series of closed and open hearings on the complexities of the rules of evidence.

A technicality in those rules lifts the usual rule of patient-therapist confidentiality when the patient puts a mental or emotional condition at issue. That’s precisely what the brothers did, Deputy Dist. Atty. Pamela Bozanich argued.

Weisberg agreed. But defense attorney Michael Burt said Oziel made the Dec. 11 tape at the urging of one of the brothers’ previous lawyers--meaning it might be confidential under the attorney-client privilege.

Weisberg finally ruled that the tape was made for therapy, not for legal reasons.

Prosecutors were clearly elated by the prospect of getting the tape, which they hope will convince jurors that the brothers have largely fabricated their stories of incest and other abuse.

“The defense has been fighting tooth and nail to keep this evidence out. Now the jury will hear what the brothers have to say, and in their own voices,” Deputy Dist. Atty. Lester Kuriyama said.

But defense attorney Michael Burt said: “I think people will be surprised. It’s not a smoking gun. There’s something in there for both sides.”

In further legal wrangling Wednesday, the defense abruptly dropped plans to call a psychologist who would have testified that Kitty Menendez was worried about her sons’ “lack of conscience, narcissism and sociopathy.”

Kitty Menendez reportedly made that comment to her own therapist, Lester Summerfield of Thousand Oaks, a month before the killings.

She saw Summerfield for about 90 sessions from Feb. 27, 1987, through Aug. 16, 1989, defense lawyer Jill Lansing said. The defense was planning to call him to help round out its profile of the troubled Menendez family.

But prosecutors undercut that plan by saying they wanted to ask Summerfield about Kitty Menendez’s fears that her sons were sociopaths.

When the judge ruled that they could do so, defense lawyers announced they would not put Summerfield on the stand. “Not before my jury!” snapped Leslie Abramson, Erik Menendez’s lawyer, complaining that the judge would have “let a bomb-type word like sociopathy “ into the trial.

Abramson said Kitty Menendez had wondered about the description of her sons only because of statements made by Oziel, who has the “credibility of a doughnut hole.”