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The 7 Biggest Mistakes in Law & Order True Crime: The Menendez Murders (Guest Column)

Dick Wolf has broken my heart with his first venture into true crime, “Law & Order True Crime: The Menendez Murders,” which ended on Tuesday night. The “L&O” franchise has always been my favorite procedural series, but this miniseries takes the “true” out of true crime.

Yes, we are warned that characters and events may have been changed, but the creators should not have been allowed to alter the facts of the crime. That defeats the purpose of revisiting a gruesome and puzzling double murder that captivated the country for years.

Working with Diane Sawyer, I was the lead producer on ABC News’ coverage of the case. I still have encyclopedic memory of so many details: The family ferret was named “Chipper,” and the brothers’ favorite stuffed animals were Cookie Monster One and Two. I also clearly recall how the lead prosecutor would look for “tells” if Leslie Abramson was lying; she said the defense attorney would belch softly and repeatedly under her breath. In this series, Abramson (Edie Falco) is a saintly tiger mom protecting her cubs.

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I watched a different case unfold 27 years ago. So here is my short list of the mistakes in “Menendez Murders.”

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1. The fatal shot 
Starting with the first frame of the first episode, I knew there was a giant truth problem. Dark shadowy figures come into the den of the Beverly Hills mansion, holding shotguns. José Menendez is seen standing up to confront the intruders and is shot directly in the forehead. There are many rounds of gunfire which also kill his wife, Kitty. We soon learn the killers are their sons, Erik, 18, and Lyle, 21.

A later episode includes sworn testimony enforcing the lie that the fatal wound was a point blank shot to the forehead. Noooo!!! There is zero question the fatal blow to José Menendez was fired at point blank range to the back of the head, causing “explosive decapitation.” Why does this matter? The lie goes to the heart of the defense: that the brothers shot their parents in self-defense because, after years of sexual abuse, they falsely believed their parents were going to kill them. The image of a large, hectoring father coming towards you might support that defense more than a Dad relaxing in front of the television across from Mom, each with a bowl of berries and ice cream on the coffee table.

2. The key witness gets slut shamed
One of the greatest sins of the series is Heather Graham’s portrayal of Judalon Smyth, who cracked the case when she informed the cops she’d overheard Lyle and Erik’s murder confessions. Graham plays Judalon as a campy nymphomaniacal “mistress” of the Menendez brothers’ therapist, Dr. Jerome Oziel. We see Judalon put her head in the oven and manipulate her way into the Oziels’ marital home, where she tells his young children she’s going to be their new mommy.

The real Judalon was a sexually exploited patient in the middle of her own nightmare which worsened when Dr. Oziel had her listen in on the Mendendez brothers’ murder confessions and convinced her that her life was in danger so he could move her into his house with his wife. When Judalon first told Diane Sawyer and me her full story, she ran a couple of small businesses and had a productive life. She was not crazy and never stuck her head in an oven. She knew she had been “gaslighted,” saying Oziel forced her to take medication and threatened to put her in a mental hospital. California State Board investigators filed a complaint, the first step in revoking his license mid-trial. What’s more, she knew of two other women Oziel had abused in similar ways; strangling one with a telephone cord, and forcing another to stand in bare feet on a plate she had broken until it cut through the bottom of her feet.

3. The “confessions” are tainted
Abramson sets out to destroy Judalon Smyth and Dr. Oziel, since they’ve heard the original murder confessions, which will be much different than the story she wants Lyle and Erik to tell the jury. She also brings in a better credentialed expert, a Harvard psychiatrist named Dr. William Vicary to treat Erik in jail. No one in the miniseries mentions that Dr. Vicary doesn’t date or number his notes. So we don’t get to see that Erik only begins to reveal his father’s sexual abuse after the California Supreme Court rules their confessions will be evidence in the trial. And that’s about the time Abramson tells the family members footing the legal bills that Lyle and Erik are the killers.

In the series, Lyle gets a new jailhouse “counselor,” too, named “John” to whom he reveals after all these months that he, too, was sexually abused by their father and their mother. “John” reports this breaking news from Lyle right back to Abramson who suddenly realizes she has that rare case for “imperfect self-defense.”

4. The brothers’ story changes 
I wish we’d gotten to see prosecutor Pam Bozanich (Elizabeth Reaser) tracking the timeline and figuring out ways the brothers were coached. She said back then that many of the shocking details of sexual abuse in their now-famous tearful testimony were poached from a book by attorney Paul Mones, “When A Child Kills.” I suspect the “composite” character, John, is based on Paul Mones.

5. Another female witness gets the “nut job” treatment
As we now know, the first trial ended in a hung jury. The case went to a second trial. Wolf has said in interviews he believes the fix was in: The judge worries over his bid for re-election, the prosecution is desperate for a win. Then a woman named Norma Novelli throws a monkey wrench in the new trial. Although vilified in the miniseries as a jealous and vengeful nut job, she spent years helping Lyle, sending him clothes and patching his collect calls from jail through to friends and family. She also tape recorded Lyle for three years and took them to the cops and a publisher. In the final episode, prosecutor David Conn says privately there’s nothing incriminating on those tapes. But that’s not true, and since he died at age 56 of ALS, he can’t refute it.

6. Sloppy notes
The real star of the second trial is Dr. Vicary, who created a true Perry Mason moment. While cross-examining him, Conn discovers they are reading from two totally different set of notes. In the miniseries, Abramson calls it a “technicality,” cleaning up a few words here and there like “I thought.” In real life, Vicary admitted he’d deleted 24 sections at the request of Abramson. Among the deletions: Erik told him that he discussed with Lyle, a week before the murders, “what it would be like to live without our parents.” Erik had also considered making up a defense that their father’s “homosexual lover” warned the brothers their parents planned to kill them. (Their father had a female mistress for seven years.)

Why did Vicary lie under oath? He said he’d argued with Abramson for hours, and he felt she’d take him off the case if he didn’t comply, something she denies. Abramson was barred from closing arguments before the jury, and attorney Barry Levin (Harry Hamlin) had to argue against the death penalty. The brothers got life sentences without the possibility of parole.

7. Other inaccuracies
During jury deliberations, two Beverly Hills cops debate the sex abuse question and say, “but what about those pictures,” as if there was photo evidence of child pornography involving Lyle and Erik. There wasn’t. And as everyone is leaving the courthouse, Josê Menendez’s sister, Marta, tells Abramson that their mother molested José when he was a young boy, and that’s how the cycle of abuse started. Really? Her nephews are facing a lethal injection, and she doesn’t say this under oath?

For his part, Lyle Menendez gave a phone interview from prison which aired on NBC’s “Megyn Kelly Today” in which he asked, “How can they say it was pre-meditated?” Try this: Lyle stole his roommate’s driver’s license, and two days before the murder, using this fake I.D., drove with Erik from Beverly Hills to San Diego to purchase the shotguns they used to kill their parents. They pre-set an alibi and also “knee-capped” their parents to make it look like a mob hit. Kitty was still crawling on the floor after they emptied their shotguns, so Lyle went back outside and reloaded.

Given all the people who are wrongly accused and wrongly convicted, it is a shame to squander so much money, airtime and talent on such lies.

Shelley Ross is a veteran television producer best known for her 17 years at ABC News, where she won three Emmys, a Peabody, and other honors.

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