From the “Abuse Excuse” to the “Fear Excuse”: Reconsidering the Menéndez Case in an Era of Police Brutality and Fake News
Kristina Garvin
What triggered the event was a closed door. They’d never closed the door to the den before. What was happening on the other side? The brothers paced and panicked and panicked some more. They thought they were going to die. They understood the door waited for them, and that they had to go through it.
And they did.
“I thought they were going ahead with their plan to kill us,” one brother testified in court.
“I was just firing. As I went into the room, I just started firing,” said the other. When asked by his lawyer what he was firing at, his voice dropped. “My parents.”
I.
But it might not have happened that way at all, and the only people who could tell us for sure are dead. Thirty-one years later, we know only this: the parents were unarmed, they were eating ice cream, and they died that August night in 1989 at the hands of their sons. Everything else is contested and contentious, agonizingly pondered, thanks in no small part to the gavel-to-gavel coverage that produced vast archives of trial footage that in turn inspired TV movies, books, miniseries, interviews with Barbara Walters, and interviews about those interviews with Barbara Walters. All of which made possible the “Menéndez Revival” of 2017, which ushered in another spate of documentaries and docudramas and docuseries, and a Lifetime movie starring Courtney Love—and the most prized pop culture jewel of all: a highly regarded Dick Wolf Law and Order: True Crime miniseries, which made no secret of its pro-Menéndez slant.
If what really happened that night hasn’t been discussed or dramatized already, then it probably never will be—it’s lost to us forever. More than OJ Simpson or any other tawdry case of that decade, the Menéndez trial was whatever you wanted it to be, and then it was something else altogether—something intractable. OJ was guilty but somehow went free—there were reasons for that, explanations. (Racism. Rodney King.) The Menéndez brothers, on the other hand, admitted their guilt on the day they took the stand with the kind of welling, naked emotion that asked us to violate our contract with Age of Irony. And it was that violation, I think, that made them so uncomfortable to us. They had to pay.
“How false, how bogus, how planned and rehearsed [the abuse testimony] actually was,” wrote Dominick Dunne for Vanity Fair. Dunne was inexplicably vexed by the Menéndezes, revealing how easy it was to project oneself onto the case, to abandon any pretense of reflexivity. Of the hung juries? “I’ll tell you what happened. Two juries took the word of two world-class liars, two rich, spoiled, arrogant losers who were already on the road to criminal life when they shot their mother’s face off and their father’s brains out.”
But even Dunne couldn’t maintain a unified front. Supposedly obsessed with one of the brothers, he kept a personal archive of headshots and modeling photos taken just weeks before the murders. According to Robert Hofler, Dunne was fixated on this brother because he believed he was gay. Could not stop digging into that brother’s personal life. While he railed against the Menéndez brothers’ “abuse excuse” in Vanity Fair—even going so far as to speculate as to whether it was really possible for a grown adult male to penetrate “the squeezed-tight little anus of a six-year-old”—he privately expressed doubts about his own convictions. “I can’t believe I’m saying this,” he said outside the courtroom after one brother’s testimony, “but I think I believe this. I think he’s telling the truth.”
In his more lucid moments, Dunne implied that the tragedy fascinated us not because of its archetypal premise but because of its American specificity. It undermined the most American myth of all—that of the immigrant whose big dreams and big drive beget astonishing success.
But the myth was shopworn long before Cuban-American José Menéndez got his hands on it. Once an immigrant comes to this country and “makes it”—what happens next? I mean, look around. It’s not rocket science. It’s like asking what moves history or what makes dust. The answer is unimportant. The question is the answer.
II.
José and Kitty Menéndez weren’t armed that night in August, but their sons had reason to believe they might be. At least, they had more reason than any number of police officers and civilians who have emptied clips into unarmed people in the past several years. Just last month, Jacob Blake, unarmed, turned his back on officers and attempted to open the door of a police vehicle, where his children sat inside. Seven shots were fired; four hit Blake, one severing his spinal cord.
Blake’s case is just one of many. There was another case last week—that of Walter Wallace, Jr. There will probably be another one this week. Or perhaps the week after.
The Menéndez brothers, on the other hand, knew their parents had guns because they’d seen them. Kitty had just bought another one that summer. They contemplated taking those guns rather than going out and buying their own—but Lyle Menéndez, the older brother, worried his parents would notice.
They’d seen other things too—bizarre and inexplicable. A TV documentary provides this anecdote: One day, the family’s ferret went missing. It was presumed killed—probably by one of the dogs. When the brothers opened the refrigerator, they found the dog’s head inside. (The documentary offers no further explanation.)
That’s to say nothing of the abuse, of the death threats their father had meted out over the years. If we believe a fraction of what they told us, then we must concede that they had reason to be afraid. And in this country, when one is scared, one buys a gun.
Their decision to purchase firearms would be used as evidence that the murders were premeditated—but their search for a gun was so desperate it bordered on farce. They didn’t have an inkling about California’s two-week waiting period. They drove from town to town. At one store, they tried to buy shotguns and were asked for ID. One brother’s license had been suspended, and the other had left his at home.
Still, they didn’t give up. They drove farther south. There—in San Diego, more than two hours away from home—they found an unscrupulous seller. This time Lyle produced a false ID, one his ex-roommate left behind in their dorm.
III.
For the shooting deaths of their parents, the Menéndez brothers both received two consecutive life sentences without the possibility of parole. Neither had an extensive criminal record, other than some robberies they’d committed the year before. They weren’t known to be violent.
As much as I want to resist comparisons, I can’t.
The police officers who shot Breonna Taylor eight months ago: two of them have been reassigned, the third indicted on lesser charges. They will probably never serve time.
George Zimmerman, the man who killed seventeen-year-old unarmed Trayvon
Martin: acquitted.
And last week in my current city of Philadelphia, two police officers shot Walter Wallace, Jr., a mentally ill man whose family had called paramedics because he was having an episode. When the police arrived on the scene, they shot the knife-wielding Wallace— who stood several feet away from them—eight times.
In all of these cases? Well, the “fear excuse” reigns supreme. If you fear for your life because you believe the suspect to be armed—even when you possess a gun and he has nothing more than a knife—you are justified in using lethal force.
No such luck for the Menéndez brothers, born too early for the benefit of the doubt. Of course, there are certainly larger and more complex issues that account for the draconian sentences the brothers received. The Menéndez brothers were wealthy; it was easy to pin the motive on greed. In addition, the crime rate in the late 1980s and 1990s was steep, with few signs that it would abate. In 1989, there were 874 homicides in Los Angeles, and in 1993 (the year the first trial took place), there were 1,077. National numbers reflected the spike—1993 saw approximately 26,000 homicides. (For the sake of comparison: in 2019, there were 253 murders in Los Angeles and under 4,000 nationwide.) So perhaps those good nineties-era Angelenos were unduly hard on the Menéndez brothers because they were reacting to the bleeding-heart permissiveness of the 1970s, when the death sentence of none other than Charles Manson had been commuted.
There’s also a fuzzier explanation—but one nonetheless that critics have come to embrace over the years: we didn’t grasp the severity of child sexual abuse and the way it causes long-term damage to a child’s psyche. But I find this explanation a bit specious. I grew up in the 1980s, and we knew about child abuse. Every year, community activists came to my classroom, play-acting different scenarios. The creeper with candy. The creeper with a lost dog. We each got a whistle to use if a stranger came for us. I always took mine with me when I went to visit my friend on the next street. In the 1980s, you never knew. A Satanist lurked in every storm drain.
After the advocates taught us the stranger-danger basics, they got down to brass tacks, to the true agenda—what I called “the rubbing part.” This lesson was puzzling to me, more abstract. I could understand the reason to avoid strange men with puppies. But rubbing from close family friends or relatives? No clue.
In this scenario, the girl was with an uncle. Or maybe a piano teacher. Or maybe her uncle was her piano teacher. And the piano teacher uncle kept rubbing the girl’s shoulders, legs, arms. We were told we didn’t have to let anyone rub us like that if we didn’t want to.
It was mystifying.
A friend explained at recess: “It’s when someone touches your privates. It happened to my mom when she was little.” Another friend: “I think that happened to my cousin’s neighbor.”
Then another girl weighed in: “It only happens when you’re ten or older.”
“Oh,” we all said, relieved. Ten seemed a long way off.
Still, despite these somewhat oblique explanations foisted on children, the topic clearly loomed large in the American imagination—especially as daycare facilities continued to suffer scrutiny, among them the McMartin preschool. Also in the Los Angeles DA’s jurisdiction, McMartin became shorthand for the worst kind of child exploitation. Even in those supposed eighties-era Dark Ages, the District Attorney certainly seemed to think child abuse was important enough to break the bank in the pursuit of justice. And even after the accusations were discredited, they remain in circulation, resurrected by none other than QAnon.
Despite the ubiquity of McMartin in the 1980s, the Menéndez brothers’ claim to having been abused was dismissed, laughed at.
Similarly, our country’s obsession with stand-your-ground laws is immune to facts. Crime rates have plummeted, thankfully, since I was a child. Nevertheless, stand-yourground laws have grown absurdly capacious. We’re all packing now. Or we could be. And though cameras document that the threat of violence is often imagined, we continue to double down. The unlikelier threat of violence, the more vigorously we defend the shooter’s rights. Such laws are unsuccessful—research affirms that they’re ineffective at best and destructive at worst, and that they lead to a disproportionate number of Black deaths. But we don’t care. Lawmakers continue to pass more of them, to defend them with a kind of fervor that approaches religiosity. Five years after Trayvon Martin’s death, the Florida legislature passed a bill forcing the prosecution to prove the shooter wasn’t acting in self-defense.
Other states shield the shooter from civil lawsuits. In Ohio, the conservative governor vetoed a stand-your-ground bill for being too conservative; the Ohio General
Assembly overrode his veto the following week.
IV.
The day after the brothers bought shotguns, their parents forced them to go shark fishing. Later that night, the brothers parted ways, reasoning that their parents were less likely to kill them if they stayed apart. So Lyle retreated to the guesthouse behind the family’s mansion, and Erik went to his room.
They believed their parents were going to kill them because Erik had finally told Lyle that their father was still raping him, and that he’d continue to do so because he was refusing to allow Erik to leave home for college. In response, Lyle confronted their father.
The confrontation didn’t go well. José—and Kitty afterwards—dropped oblique hints that things were over. What was over? Surely not the abuse—José made clear that he had intention of leaving Erik alone. After his confrontation with Lyle, José went to Erik’s room and allegedly tried to sexually assault him, despite Lyle’s plea to stop doing so.
Erik was only 18 and arguably the less stable of the two. In books and articles he’s often described as “hysterical,” “sobbing,” “shaking,” and “trembling.” According to the experts, he’d endured extreme forms of abuse. While José had stopped abusing Lyle when he was eight, he supposedly continued to rape Erik through his teen years. José had told them separately that he’d kill them if they told one another. He’d get a new family, he said.
Kitty allegedly colluded in the abuse, molesting Lyle until he was a teenager.
The night before the last day of his life, José pounded on Erik’s locked door. Erik refused to answer. José was riled, but he didn’t know that Erik had a gun.
Erik pointed the barrel at the door but didn’t shoot—not that night.
I wonder what would have happened if he had—if he’d “stood his ground” by firing through the door. Maybe self-defense would have been easier to prove. Or maybe not. To a jury he he’d still be an athletic eighteen-year-old cradling a shotgun—a full-grown male, and a tennis star, who, because he was grown and because he was male and because he was armed, could not be afraid of his father. Not even a father who had just killed a shark with his bare hands, hours before.
V.
I admit: I’ve read everything I can find about the Menéndez brothers. Books. Articles. Websites. I’ve gone through microfilm. I don’t know why. The murders happened when I was very young. When the trials took place, I was a little older—old enough to know what sexual abuse was, but too young to realize how lucky I was to have lived in relative ignorance of the subject.
Maybe the trial fascinated me because on the stand the brothers wept openly, which people hated. They wore sweaters, which people mocked. The sweaters were one thing—a grim nod to the performativity of victimhood. The crying was another thing altogether. Two grown men choking on testimony, a box of tissues perched on the witness stand. Even those who believed them had to call them “boys” to make it okay.
We do indeed know more today about child abuse than we did back then—that it diminishes the prefrontal cortex, provoking hypervigilance and paranoia. But even today, we give into the impulse to disavow the emotionality of the case, to label those who were moved by the brothers’ testimony as sentimental and slow.
People who were there admit now that the brothers’ testimony was harrowing. Even so, they remind us that the brothers were unlikable, unsympathetic people who stole from their neighbors, cheated at school, probably threatened their therapist at some point, and went on a “spending spree” after the murders. Court TV reporter Terry Moran concedes the brothers’ tears were genuine—but only because their somatic response was impossible to fake. “I saw this vein start popping out of [Erik’s] forehead,” he told ABC in 2017. “That’s what a victim looks like. Not an actor.”
But as quickly as Moran makes the admission, he walks it back. The brothers’ sincere expression of trauma offset “their bad acting”—the moments on the stand when they were “trying to convince everybody that they were actually in fear for their lives when they killed their parents.” He denies that “strapping young men” could have genuinely felt endangered.
“We viewed it as a bullshit defense,” said Christopher Darden of the “abuse excuse,” referring to the attitude that saturated the DA’s office. Ironic, considering that the OJ prosecution had hinged on abuse. Of course, in that case the victim was sufficiently sympathetic because the victim was dead. But the Simpson jury refused to follow them there, to connect the dots between murder and abuse. Co-prosecutors Marcia Clark and Bill Hodgman were incensed. “They did not get it,” Bill Hodgman said in the 2016 documentary OJ: Made in America. “Oh, they got it,” Marcia Clark said in the same documentary. “They just didn’t care.”
Or maybe the DA’s office didn’t get it—or got it but just didn’t care. It’s intellectually dishonest to pretend domestic violence matters in one case but not another. It’s offensive try to put Erik and Lyle Menéndez—18 and 21 years old when they committed their crime, and clearly traumatized—on San Quentin’s death row beside Lawrence Bittaker, who tortured five girls to death in 1979, recording their screams on a tape so gruesome that a courtroom artist vomited when it was played at the trial.
And it’s galling that, knowing about the lurid details of the brothers’ upbringing, the
DA once again sought to put them to death, rather than opting for a more humane sentence.
Of course, with all the testimony on the table, putting the brothers to death would prove next-to impossible, due to the extensive abuse they’d suffered. So what did the DA’s office do? They excluded it, which was easy: Stanley Weisberg was damaged goods. He was the judge who’d presided not only over the Menéndez trial but also the McMartin and Rodney King debacles. He needed there to be a conviction. And Weisberg, supposedly rankled by public perception that defense attorney Leslie Abramson had “owned him” during the first trial, made no secret of his antipathy for her in the second.
The jury, unable to hear about the abuse or consider manslaughter, had to either convict the brothers of first-degree murder or acquit them altogether. This time, we wouldn’t fall for tears, shame, and vulnerability. The Age of Irony clapped back, and order was restored.
VI.
What if there’d been just a one percent chance that José and Kitty had intended to murder their sons that night?
If you recall, that was the Cheney Doctrine. In November 2001, the vice president announced that if there was a one percent chance that terrorists had access to weapons of mass destruction, then the United States had to treat the possibility “as if it were a certainty.” So we invaded a country in 2003 and killed its people. The country was unarmed.
Is this reference tasteless? Who cares. The war was obscene, a crime committed in broad daylight. Everyone watched and everyone saw and today no one says anything. We don’t talk about it. My students, born at the turn of the millennium, know almost nothing of this history. When I ask them why we invaded Iraq, I always hear the same answer: “They attacked us on 9/11.” In the past four years, I’ve never not gotten this answer.
VII.
What triggered the event was a closed door.
It was the door that separated Breonna Taylor from the world, from death, and it did nothing, provoked nothing, concealed nothing. It just was. And it was through that door that members of the Louisville Police Department went. Brett Hankison. Jonathan
Mattingly. Myles Cosgrove.
Are these cases connected? Not really. Or, if they are, it’s by a tenuous, abstract thread that undergirds our dealings with one another—an ethos that reveals how easily our institutions are weaponized, how quickly the goalposts moved and the playing field rearranged. How short our memories.
“We create our own reality”—another quote from a different era, but one that resonates all the more today. It’s been attributed to Karl Rove, George W. Bush’s campaign strategist, who probably did more to inaugurate the era of dezinformatsiya than most people realize. His statement to journalist Ron Suskind was the sort of ballsy, showy admission of gaslighting for which the Bush Administration has since been strangely, inexplicably forgiven. To Rove, journalists like Suskind comprised the “reality-based community”—but “that’s not the way the world really works anymore,” Rove said of the post-9/11 era. “We’re an empire now, and when we act, we create our own reality. And while you’re studying that reality, we’ll act again, creating other new realities. We’re history’s actors … and you, all of you, will be left to just study what we do.”
José Menéndez created a reality for his family; the Los Angeles DA created another one where they could wage a proxy-war over the not-quite-white Menéndez brothers, whose convictions would somehow erase the blunders and wrongs committed by the OJ Simpson and Rodney King trials.
Other realities have since taken hold. The reality that we all need firearms despite a steep twenty-five-year decline in homicide rates. The reality that Black people pose a threat to white people when it’s the other way around, always has been. The reality that criminals need to be punished far beyond what’s right or fair or good for society.
In the first Menéndez trial, many jurors allegedly worried that to show the brothers any mercy at all—to convict them of voluntary manslaughter or second-degree murder— would set a precedent for other people to murder their family members, use the abuse excuse, and then inherit enormous wealth. But we’ve been killing family for centuries without any incentive at all. Maybe that’s why the Menéndez case bothered us so much. It was, as Dominick Dunne argued, a very American story—but not for its five-act rags-toriches-to-greed-to-disgrace-to-punishment blueprint.
Perhaps Charles Chesnutt’s 1888 short story “The Sheriff’s Children” is more instructive. In the years after the Civil War, a former slave travels to a North Carolina town to find his father, the white sheriff of the town who was once a wealthy slaveowner. There, the former slave is falsely accused of murder and arrested. The town wants to lynch him before he can get a trial. The sheriff says no. The sheriff feels he’s law-abiding, decent.
There won’t be a lynching on his watch.
He doesn’t know that the prisoner—Tom—is his son until he tries to lock the young man in his cell. Tom wrestles the sheriff’s gun from him, firing a round in the process. Once he’s holding his father at gunpoint, Tom tells him about his life, about his mother, who had been sold by the sheriff to a brutal owner and beaten to death. The sheriff tries to reason with Tom, asking him if he could shoot his own father. Tom scoffs, rocked by the sheriff’s arrogance. “You sold me to the rice swamps,” he says. The sheriff urges Tom to look on the bright side—he’s free now, after all. If acquitted, he could go on to have a nice life.
While they’re talking, the sheriff’s other child—a white daughter named Polly— enters the prison, summoned by the stray gunshot. When she sees Tom holding her father at gunpoint, she shoots him with the gun her father had given to her for protection. Tom dies during the night.
According to critics Gerald Haslam and Ronald Walcott, the story is a parable about our history. We’re a family of Others, fighting for legitimacy, or fighting to keep our brethren illegitimate.
But Chesnutt’s story is also darkly comic. If we’re one big dysfunctional family— raping, stealing, shooting—then we’re one with an amnesiac’s faith in institutions.
VIII.
They’ve been in prison for thirty years, and maybe it doesn’t matter, and maybe it never mattered, and I doubt we’d have cared if the press hadn’t taken such a prurient interest. But I wonder if we’ll always be “left to just study”what other people do? I don’t know. The answer is unimportant. The question is the answer.
IX.
In 1996, the Menéndez brothers were separated from each other in the middle of the night and sent to different prisons. After their conviction—a conviction members of the jury say they would not have handed down if they’d known about the abuse—they were sentenced to life in prison without the possibility of parole. Apart from the death penalty, it was the only sentence the jury could impose.
Because the brothers had committed their crime together, they were considered conspirators—dangerous people who needed to be kept apart. For 22 years they did not lay eyes on each other. They couldn’t speak on the phone. They could communicate only through letters. According to journalist Robert Rand, they wrote each other often and played chess through the mail.
If one brother did a phone interview from prison, the other brother watched it on
TV just to hear his brother’s voice.
Despite their sentences, which have almost no chance of being overturned, they’re both married, and they’ve carved out prison lives. Lyle mentors other prisoners. Erik works in a hospice, tending to the terminally ill. (He will someday be the one who needs tending to.)
Then, in 2018, they were reunited in Donovan Correctional Facility in San Diego. No one else was there. The guards led them through a door, where only they were there and only they know what happened. When they saw each other, they tell us, they cried and hugged for several minutes. And there it was again—the unmistakable pathos that once caused us discomfort, the unstoppable tears. But this time there were no cameras, no reporters, no commentary on why we shouldn’t believe them, why they could never be sincere.
Kristina Garvin lives in Philadelphia. A native of Columbus, Ohio, she earned a Ph.D. in early American literature from Ohio State University and has written extensively on the novels of Charles Brockden Brown. Her essays and stories have appeared or are forthcoming in 34th Parallel, Windmill, Oddball Magazine, PopMatters, Early American Literature, and Early American Studies. Previously an Andrew W. Mellon fellow at the University of Pennsylvania, she currently works in the nonprofit sector.