(LOS ANGELES) — Erik and Lyle Menendez’s much-anticipated resentencing hearing will be held Tuesday and Wednesday with lawyers set to battle over whether the brothers should get a lesser sentence, clearing the way for a potential release from prison.
Defense attorney Mark Geragos, who is pushing for their release, said he plans to call seven witnesses. The brothers are not likely to testify.
Sources from the defense and prosecution told ABC News the judge is leaning toward resentencing the brothers.
Erik and Lyle Menendez are serving life without the possibility of parole for the 1989 murders of their parents, Jose and Kitty Menendez. They have the support of over 20 family members in their efforts to be freed after 35 years behind bars.
Their resentencing case gained momentum in October when then-Los Angeles County District Attorney George Gascón announced he supported a reduced sentence.
Gascón recommended the brothers’ sentences of life without parole be removed, and said they should instead be sentenced for murder, which would be a sentence of 50 years to life. Because both brothers were under 26 at the time of the crimes, they’d be eligible for parole immediately under California law.
Gascón’s office said its resentencing recommendations take into account many factors, including rehabilitation in prison and abuse or trauma that contributed to the crime. Gascón praised the brothers’ conduct in prison, saying they rehabilitated themselves and started programs to help other inmates.
In November, Gascón lost his reelection bid to Nathan Hochman, who in March filed a motion to withdraw the resentencing petition, calling the brothers’ claims of self-defense part of a litany of “lies.” The judge denied Hochman’s request.
This resentencing hearing will be a face-off between Geragos and Hochman, who is trying to keep the brothers behind bars.
“The issue is not never for the resentencing,” Hochman told ABC News in an exclusive interview Monday night. “It’s not yet.”
Hochman continues to refuse to say whether he believes the brothers were sexually abused.
A hearing was held Friday to determine whether the resentencing case should include information from the California Board of Parole’s newly completed risk assessment, which was conducted as a part of a separate clemency path. The risk assessment came at the request of Gov. Gavin Newsom as a part of the brothers’ clemency bid; the brothers are pursuing multiple avenues to freedom, and the clemency path is separate from the resentencing path.
The risk assessment said Erik and Lyle Menendez pose a moderate risk to the community if they’re released.
The assessment revealed the brothers possessed illegal cellphones in prison, among numerous other violations, though many are not recent. However, Erik Menendez had a phone as recently as January of this year, which Hochman stressed was during the resentencing effort when he should have been on his best behavior.
The defense noted Erik Menendez had one write-up for violence 25 years ago and Lyle Menendez has had none.
Judge Michael Jesic indicated he will take some of the risk assessment into account for the resentencing case, but he added that the information in the assessment is preliminary and attorneys can’t question the psychologists who performed the examinations.
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