When is someone convicted of murder considered rehabilitated?

rge Gascón, the former Los Angeles County district attorney who recommended that the men be resentenced, believed that the brothers had been exceptional inmates.

In an interview last year with “Dateline” and in court filings, Gascón and his deputies pointed to the college courses the brothers have completed; to the green space “beautification” project they established at the Southern California prison where they’re incarcerated; and to the assistance they’ve provided to inmates with severe disabilities.

Gascón also pointed to state law that requires authorities to consider how old inmates were when they committed their crimes. If they were younger than 26 — the age at which the part of the brain responsible for behavior control is considered fully mature — California law mandates that inmates be given a “meaningful opportunity for parole during their natural life.”

When the brothers fatally shot José and Kitty Menendez on Aug. 20, 1989, Lyle Menendez was 21. Erik Menendez was 18.

Gascón’s position has been championed by some high-profile celebrities and relatives of José and Kitty who have continued to speak out on behalf of the brothers.

“I know Lyle and Eric,” Anamaria Baralt, a cousin, said outside a Los Angeles courthouse last week. “I’ve seen their journeys, and they are absolutely well-suited for this process, for resentencing, and I have no doubt that if we stay fair throughout these proceedings that we will see them out.”

But Gascón was voted out in November, and his predecessor, Nathan Hochman, has taken a very different view of the case.

After seeking a delay for a resentencing hearing that had originally been scheduled in December, Hochman has said that he and his deputies spent months reviewing thousands of pages of trial transcripts, prison records and other documents associated with the case. 

In March, Hochman revealed that he did not believe Erik and Lyle Menendez had taken full responsibility for their crimes and moved to withdraw Gascón’s recommendation. The district attorney cited a list of 16 “unacknowledged lies” that he said the brothers have told about the murders, including their claim that they killed their parents in self-defense. (Jesic has denied Hochman’s attempt to withdraw.)

When the brothers were tried in the early 1990s, Lyle testified that they fatally shot their parents after he confronted his father about sexually abusing Erik and José appeared to threaten him.

They claimed a legal doctrine known as “imperfect self-defense.”

Prosecutors described the killings as cold-blooded — Lyle reloaded his shotgun before he shot his mother in the face — and financially motivated. The proceedings ended with a mistrial when the jury could not reach a unanimous verdict. 

During their second trial, Lyle declined to testify after authorities intercepted letters that showed him encouraging people to lie for the defense, including a girlfriend whom he asked to falsely claim that she’d been sexually assaulted by his father, according to an appeals court decision. A ruling from the California Supreme Court also barred the brothers from claiming imperfect self-defense.

On March 20, 1996, they were convicted of first-degree murder.    

 In addition to their self-defense claim, Hochman has also included Lyle’s apparent deception involving the girlfriend on his list of 16 unacknowledged lies. During a hearing last month, the deputy district attorney handling the resentencing argued that the brothers have offered a variety of excuses for their actions.

“What did you not hear once?” said the prosecutor, Habib Balian. “We lied.”

An attorney for the brothers, Mark Geragos, called Balian’s presentation a “dog and pony show” and accused him of relitigating the first trial.

That hearing was supposed to determine whether Erik and Lyle Menendez should be resentenced. But the proceedings ended with Geragos accusing the prosecution of bias and saying he would seek to have the district attorney removed from the case. 

During a hearing last week, Geragos withdrew that motion and prosecutors pointed to a new development that they said supports their claim that the brothers have not been sufficiently rehabilitated. Recent evaluations conducted by psychologists found that the brothers pose a “moderate” risk of violence if released from prison.

The evaluations, known as comprehensive risk assessments, are confidential and were conducted as part of a separate clemency request the brothers made to California Gov. Gavin Newsom.

Speaking after last week’s hearing, Geragos said that violations cited in the evaluations do not constitute the kind of serious felony crimes required to deny their resentencing bid. And he said that the prosecution’s claims have sought to “undercut what is 35 years of remarkable work by both brothers.”  

If Jesic denies resentencing, the brothers still have two other paths to freedom — their application for clemency and a separate petition that challenges their convictions and seeks a new trial.