THE COURT: WELL, I AGREE THAT IT'S CERTAINLY REMOTE. THIS INCIDENT OF REPORT BY LYLE MENENDEZ TO MS. VANDERMOLEN, AGAIN, CALLS FOR SPECULATION AS TO THAT BEING IN LYLE
MENENDEZ' MIND AT SOME LATER TIME OR CORROBORATIVE AT SOME LATER TIME OF WHY HE DID OR DIDN'T DO SOMETHING, WITH A
LETTER WRITTEN TO MR. ESLAMINIA.
ALL THESE THINGS ARE HIGHLY SPECULATIVE AND VERY CREATIVE, BUT WITHOUT THE BUTTRESS AND THE FOUNDATION OF THE
DEFENDANT'S TESTIMONY, IT'S KIND OF HARD TO SEE HOW IT COMES IN.
MR. GESSLER: YOUR HONOR, I RESPECTFULLY AGAIN DIFFER ON TWO POINTS.
ONE, IT'S NOT HIGHLY CREATIVE AT ALL, ALTHOUGH I THINK THAT MIGHT HAVE BEEN MEANT AS A COMPLIMENT.
THE COURT: IT IS. IT IS. I SEE YOUR POSITION IS YOU DON'T WANT YOUR CLIENT TO BE ON THE WITNESS STAND AND YOU'RE DOING
WHATEVER YOU CAN TO GET THE EVIDENCE BEFORE THE JURY THAT WOULD SUPPORT YOUR POSITION.
MR. GESSLER: WELL, YOUR HONOR, THAT, OF COURSE, IS WHAT I GET PAID FOR AS A LAWYER IS TO MAKE THESE DETERMINATIONS AND TO DO THE BEST I CAN TO BRING THEM ABOUT. BUT IT IS
--THE COURT: I'M NOT CRITICIZING.
MR. GESSLER: I KNOW YOU'RE NOT. BUT I'M SAYING THAT EVEN
THOUGH I LIKE COMPLIMENTS, THIS IS NOT HIGHLY CREATIVE. THIS IS, I THINK, COMMON SENSE AND JUST WITHIN THE REALM OF EVERYDAY EVIDENCE BEING PRESENTED.
THE COMPLAINT THAT WAS MADE TO DIANE VANDERMOLEN HAD TO HAVE BEEN -- I MEAN, IT TAKES MORE CREDENCE, THE FACT THAT IT WAS MADE AT A YOUNG AGE AND LONG BEFORE ANY MOTIVE TO MAKE UP A STORY OF MOLESTATION HERE OCCURRED. IT'S, IN EFFECT, TO THAT EXTENT, A PRIOR CONSISTENT STATEMENT INSOFAR AS ERIK MENENDEZ' VERACITY HAS BEEN QUESTIONED AS TO WHETHER THERE WAS MOLESTATION, AND AS TO WHETHER OR NOT LYLE TOLD HIM ABOUT A MOLESTATION OF HIS OWN, AND AS TO THE REASONS FOR WHICH THE BRIAN ESLAMINIA LETTER WAS WRITTEN.
BUT AGAIN, WHENEVER WE DEAL WITH CIRCUMSTANTIAL EVIDENCE, YOUR HONOR, WE DEAL WITH WHAT SOMEONE COULD SAY IS
SPECULATIVE. IT IS SPECULATIVE THAT BECAUSE HE WROTE THE LETTER TO BRIAN ESLAMINIA, THAT ALL OF THIS IS A BIG LIE THAT'S BEING MADE UP. THAT'S THE SPECULATION THAT THE PROSECUTION, I BELIEVE, WOULD PROBABLY URGE THE JURY TO MAKE. BUT THAT IS SHEER SPECULATION.
AND THE REASON THAT THE LETTER WAS WRITTEN, BEING THAT AT THAT TIME LYLE MENENDEZ WAS DESPERATE NOT TO HAVE THE SEXUAL ACTIVITY GONE INTO IS A REASONABLE EXPLANATION FOR THAT LETTER, SHOWING THAT IT WAS NOT MADE IN ORDER TO TRY TO MAKE UP A HUGE STORY TO GET LYLE AND ERIK MENENDEZ OFF FROM THIS PARTICULAR HOMICIDE CASE.
THEY'RE BOTH CIRCUMSTANTIAL EVIDENCE, BOTH THE LETTER AND THE INFERENCE WHICH THE PEOPLE ARE TRYING TO MAKE FROM THE LETTER, AND THE STATEMENTS BETWEEN LYLE AND ERIK MENENDEZ AS TO NOT WANTING TO BRING UP THE SEXUAL MOLESTATION,
PARTICULARLY AGAINST LYLE MENENDEZ, AS THE ANSWER FOR WHY THAT LETTER WAS WRITTEN AND THE TESTIMONY WAS THEN
WITHDRAWN LONG BEFORE THE FIRST TRIAL AND THE PHONE CALL BOTH TESTIFIED TO BY BRIAN ESLAMINIA HIMSELF AND ALLUDED TO BY ERIK MENENDEZ. NEITHER IS MORE SPECULATIVE THAN THE OTHER, YOUR HONOR.
AND SO WE NOW HAVE SOME CORROBORATION FOR THE FACT THAT LYLE MENENDEZ WAS, IN FACT, MOLESTED; AND, THEREFORE, THE TRUTHFULNESS OF HIS DEFENSE THAT HE DID NOT -- HE DID NOT WANT THE SEXUAL MOLESTATION TO COME OUT.
THE COURT: ALL RIGHT. I WOULD INVITE COUNSEL TO RESEARCH THE ISSUE OF THE DEFENDANT OFFERING EVIDENCE OF REMOTE ACTS TO BUTTRESS EVIDENCE, AMBIGUOUS EVIDENCE, OR -- I'LL
RECHARACTERIZE THAT, NOT AMBIGUOUS.
MR. GESSLER: CIRCUMSTANTIAL.
THE COURT: SKETCHY EVIDENCE OF MENTAL STATE AT THE TIME OF THE CRIME, WITHOUT HAVING TESTIFIED HIMSELF AS TO HIS MENTAL STATE AND WHETHER OR NOT THERE ARE ANY CASES THAT DEAL WITH THAT SUBJECT.
MR. GESSLER: YOUR HONOR, I CAN'T GIVE THE COURT A MORE ON-LINE CASE THAN PEOPLE VERSUS BROOKS, I THINK, IN WHICH I
BELIEVE THE EVIDENCE WAS FAR MORE SKETCHY THAN THAT WHICH WE HAVE PRESENTED HERE ON BEHALF OF LYLE MENENDEZ AND ERIK MENENDEZ.
THE COURT: I'M ASKING ABOUT INTRODUCING EVIDENCE OF REMOTE ACTS.
MR. GESSLER: I KNOW. I DON'T BELIEVE, YOUR HONOR -- AND IF THE PEOPLE COME UP WITH ANY CASES, I'D SURE ASK THEM TO GIVE ME A CALL, BECAUSE I HAVE NOT FOUND A CASE, AS I SAY, WHERE THE COURT REFUSED TO PERMIT SUCH EVIDENCE IN THE TRIAL ITSELF. SO THERE HAD TO BE AN APPEAL.
THE COURT: IT SEEMS TO ME THAT MOST OFTEN SUCH EVIDENCE WOULD ONLY BE INTRODUCED IF THE DEFENDANTS TOOK THE STAND AND SAID: YOU KNOW, I WAS AFRAID OF THIS GUY, AND THE REASON I WAS AFRAID WAS BECAUSE OF THESE THINGS THAT HAPPENED IN THE PAST.
MR. GESSLER: AREN'T YOU THEN GIVING MORE CREDENCE TO DIRECT EVIDENCE THAN YOU ARE TO CIRCUMSTANTIAL EVIDENCE, WHEN THE JURY WILL BE TOLD THAT THEY ARE EQUAL BECAUSE YOU'RE
SAYING -- IN FACT, I BELIEVE IN THE BARTON CASE THE COURT IS SAYING EXACTLY THE OPPOSITE, THAT CIRCUMSTANTIAL EVIDENCE SURROUNDING THAT PARTICULAR INCIDENT IS BETTER EVIDENCE OF THE MENTAL STATE OF MR. BARTON. AND I THINK THAT'S
INSTRUCTION 2.02 IN CALJIC, AS TO HOW YOU USE CIRCUMSTANTIAL EVIDENCE TO EVALUATE MENTAL INTENT OF THE BETTER EVIDENCE AS TO WHAT REALLY HAPPENED, FOR THE JURY TO CONSIDER, SO IT REQUIRED A SUA SPONTE INSTRUCTION. THAT WAS THE DIRECT EVIDENCE BY MR. BARTON HIMSELF AS TO WHAT HE WAS FEELING IN
HIS MIND.
AND I BELIEVE THE BROOKS CASE ALSO, IN THE ABSTRACT, SAID THAT THE CIRCUMSTANTIAL EVIDENCE OF BEING UPSET WAS BETTER THAN A SELF-SERVING STATEMENT FROM A WITNESS ON THE WITNESS STAND; THAT MANY TIMES CIRCUMSTANTIAL EVIDENCE IS BETTER THAN DIRECT EVIDENCE. BUT CERTAINLY IT IS TO BE GIVEN EQUAL WEIGHT.
SO I DON'T BELIEVE THE FACT THAT -- LET'S SAY THE COURT WOULD