Menendez brothers case: How would resentencing be done in 1989 murder case?

LOS ANGELES (KABC) — Could Erik and Lyle Menendez be released from prison before Thanksgiving? It all depends on a judge's decision.

Los Angeles County District Attorney George Gascón announced that his office is reviewing new evidence in the case that could lead to a new conviction. The brothers are currently in prison for the 1989 murder of their parents in Beverly Hills.

The new evidence includes a handwritten note Erik Menendez wrote to his cousin before the murders, detailing allegations of sexual abuse by his father, entertainment executive Jose Menendez.

“If it was a manslaughter case, and not a murder case, a manslaughter case – with manslaughter you move forward either through imperfect self-defense or through heat of passion – if that were the case, they would be out by now, and I think that is “That's the argument they're trying to make,” said legal expert Lou Shapiro.

There are two divisions in the DA's office that handle these cases: the Resentencing Division and the Murder Resentencing Division.

The criteria these units take into account include:

• Psychological trauma or physical abuse prior to sentencing that contributed to the commission of the crime and was not taken into account in the original sentencing.

• Evidence showing that circumstances have changed since the original conviction such that continued incarceration is no longer in the interests of justice.

How often does a new conviction occur?

According to the DA's office, resentencing units have reviewed or are currently reviewing 681 cases since 2021. To date, 300 people have been resentenced and 206 of those people have subsequently been immediately released from prison.

“The question is, if this evidence had been presented to the jury at trial, would it have made a difference in their decision? If that is the case, a retrial would be warranted,” Shapiro said.

Based on the new evidence, the DA's office will submit its resentencing decision to LA Superior Court by November 26.

The Menendez case dates back to August 1989, when then-21-year-old Lyle Menendez and then-18-year-old Erik Menendez shot and killed their parents, Jose and Kitty Menendez, in the family's Beverly Hills home.

Prosecutors claimed Lyle and Erik Menendez killed their wealthy parents for financial gain, while the defense argued the brothers acted in self-defense after enduring years of sexual abuse at the hands of their father.

The first trials against the brothers ended in mistrials. In 1996, at the end of a second trial in which the judge rejected much of the sexual abuse evidence, Lyle and Erik Menendez were convicted of first-degree murder and sentenced to two consecutive life sentences without the possibility of parole.

In an interview with ABC News, Gascón said he is considering a court date in October to present a separate resentencing decision based on the Menendez brothers' decades of good behavior in prison. Regardless, a resentencing decision must be made by a judge.

ABC News contributed to this report.