How the parole board, the governor and the new DA could affect Menendez's case

County of Los Angeles County. He said. George Gascón's announcement that he will seek to have Erik and Lyle Menendez sentenced for the brutal murders of their parents marked the first time the brothers had any hope of being released from prison since they were convicted nearly 30 years ago.

It is also the first step in a long process.

While Thursday's announcement drew praise from fans and admirers of the brothers — and condemnation from critics who thought Gascón was staging a stunt in October to bolster his re-election bid — the brothers' hopes of release still depend on the decisions of a series of arbitrators: an LA County judge, the state parole board, Gov. Gavin Newsom and the possible inauguration of a new district attorney come December.

The brothers were convicted of murder in 1996 under special circumstances in the brutal murder of their parents, Jose and Kitty Menendez, in their Beverly Hills home. The only penalties for that crime under California law are the death penalty or life without parole. But on Thursday, Gascón said he would want them to be sentenced to a simple murder charge, which would make them eligible for parole because the brothers were killed when they were under 26 years old.

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

Both brothers married and received college degrees in prison, according to the proposal, and started programs that benefit other inmates, including meditation groups and “green space” work. Correctional staff rarely supervised them, as there were allegations of violence against another brother during his nearly 30 years in prison, according to the motion.

In recent months, much attention to the brothers' case has focused on a habeas proceeding seeking to change their convictions. Attorney Mark Geragos presented new documents that prove the brothers' allegations that the murders were the result of years of sexual abuse by their father. At their trial, prosecutors argued Erik and Lyle killed their parents to gain early access to their estate.

But legal experts say the brothers may have a more direct path to freedom through punishment.

“If we think they've played by the rules, and they've been in prison for a long time and only have minor crimes, that would fit the profile of someone who deserves a conviction,” said Laurie Levenson, a professor at Loyola Law School in Los Angeles and a former federal prosecutor.

Los Angeles County Superior Court veteran William Ryan will review the case later this year. He could quickly grant the request, but he is more likely to hold a hearing where many of the family's loved ones can speak, as well as prosecutors who oppose Gascón's decision.

Gascón acknowledged Thursday that there is no “universal agreement” on the case in his office, with some prosecutors arguing against the idea that the brothers should be deported. Another group in the office had pushed Gascón to seek to impeach the brothers for the murder, which would have made them eligible for immediate release if Ryan agreed to the request, according to two sources with direct knowledge of Gascón's thinking.

The sources asked not to be identified to discuss the case. Experts say the move may have been a bridge too far for Ryan and backfired.

“Gascón's decision was probably the safest option he could have taken,” Levenson said.

If Ryan approves the application, the state parole board will then consider it. Kathy Cady, a former prosecutor turned victim's rights attorney who represents Kitty Menendez's older brother, said the parole board usually approves parole if the inmate's record is nearly as clean as described in the motion.

As of Oct. 23, the board has granted clemency in nearly 31% of cases it has heard this year in which it has issued a decision, according to data from the California Department of Corrections and Rehabilitation.

Even then, Newsom can reject the parole board's findings. According to California law, the governor can block the board's decision to grant clemency if he finds evidence that the release of the brothers “poses a serious danger to the public.”

Newsom has blocked the release of several high-profile defendants in California's prison system, including Sirhan Sirhan, the convicted killer of Robert F. Kennedy in Los Angeles. He also blocked the release of Charles Manson devotee Leslie Van Houten three different times before getting in the way of an appeals court decision last year.

A spokesman for Newsom referred questions about the Menendez brothers to the Department of Corrections.

Attorney Nancy Tetreault, who represented Van Houten, said she believes Newsom will block the brothers' release because the media has been focusing on the case. Doing so, he said, would cause a long court battle.

“If you have a high-profile client, you can expect to hear more about the pardon because it's my experience that the governor may revoke the pardon,” he said. “When that happens, you have to leave [the] The Court of Appeals and show why the governor is wrong.”

Gascón's decision could be overturned if he is no longer in office while the process plays out in court. Some polls show Gascón's opponent in the November election, former federal prosecutor Nathan Hochman, leading by about 30 points among likely voters. Hochman has not taken a public position on Menendez's case, but said he intends to review the decision if he fires Gascón.

“In that case, I will analyze thousands of pages of confidential prison records, documents from both the trial and the grand jury, and talk to prosecutors, law enforcement, defense attorneys, experts and family members of the victims,” ​​he said in a statement. “Only then will I be in a position to properly assess whether the withdrawal request is correct.”

Levenson said it's unlikely that Hochman would intervene, however, if Ryan offers to file a counterclaim before Gascón leaves office.

Times Staff Writer Salvador Hernandez contributed to this report.