What Has to Happen for the Menendez Brothers to Get Out of Prison?

The Menendez brothers were tried twice, convicted and sentenced to life in prison without parole for fatally shooting their parents while they ate berries and cream inside their Beverly Hills mansion in the summer of 1989.

In recent months, Lyle and Erik Menendez — whose televised 1993 Los Angeles trial  was among the first high profile cases to be broadcast into Americans’s living rooms — have returned to the spotlight with a Netflix documentary as well as a dramatized account of their case, both of which look at the story through a modern-day lens. Many argue that the brothers, who say their father sexually abused them for years, took the lives of their parents to save their own.

At an Oct. 3 press conference, Los Angeles County District Attorney George Gascón, referencing the renewed interest in the brothers’ case, said, “We’re getting a lot of calls.” Gascón said the office is considering new evidence submitted by the brothers’ defense lawyers in a habeas corpus filing in 2023, which challenges the legality of their imprisonment.

But how likely is it that the brothers will be released from prison anytime soon? Here’s a look at the evidence and a step-by-step process of what could happen next.

Where does the case stand now?

Following a mistrial in 1994 — in which jurors were split on how the abuse the brothers alleged they endured may have impacted their actions — the pair were retried. During the retrial, most of the evidence of their alleged sexual abuse was withheld from the jury, and in 1996, a new jury convicted them both of first-degree murder.

In the years that followed, the brothers filed multiple appeals, all of which were denied. They have recently renewed their efforts.

At an October press conference, Gascón said he is “keeping an open mind” and plans to give the judge a non-binding formal opinion on the case on Nov. 26. But ultimately, any decision on the case will be made by the judge, and not Gascón.

Mark Geragos, who represents the brothers, has told PEOPLE he is “cautiously optimistic” that they will be freed.

Reviewing the convictions

In May 2023, the brothers filed a habeas corpus claim in which they said there were two newly discovered pieces of evidence regarding the sexual abuse they say they endured and asking for a review of that evidence to consider if it would have potentially had any bearing on their previous convictions.

A letter a teenage Erik purportedly wrote in 1988 to a cousin in which he discusses the alleged ongoing molestation at the hands of his father is among the evidence submitted in the filing. “I don’t know I’ll make it through this,” Erik wrote in the letter, just eight months before the murders.

Also included in the petition is a 2023 affidavit filed by Menudo singer Roy Rosselló, who claimed Jose raped him as a young teen when the elder Menendez headed the boy band’s record label.

Acknowledging that the brothers “were clearly the murderers,” Gascón said his office had “a moral and an ethical obligation to review what is being presented to us” and to determine if such evidence could have swayed jurors away from first-degree murder convictions. 

Cliff Gardner, who also represents the brothers in the habeas corpus filing, tells PEOPLE that if the state court grants their petition, the earlier murder convictions would be vacated. 

But, Gardner says, that does not necessarily mean the brothers would walk free: The state would still have the option to retry the case. 

And, he says there’s “no definitive timeline” for the case to be resolved.

Exemplary records in prison

Since their incarceration in 1990, the brothers have had exemplary disciplinary records behind bars, and Gascón says that prosecutors are also evaluating if the men – who have been in prison longer than they had been free – are rehabilitated. 

Such a decision would be made based on their current behavior at the Richard J. Donovan Correctional Facility in San Diego, Calif. where Erik, 53 and Lyle, 56, are now both housed in the same cell block.

If the district attorney’s office believes that the Menendezes have been rehabilitated, then prosecutors can ask the court to resentence the brothers, according to Gascón, who says that they could be sentenced to less time, given a new trial — or “they could walk out.”

“Those are all options. And we will evaluate all of it,” Gascón says, adding: “We’re not sure yet which direction it will go.”

Gascón – who is in the midst of a heated re-election campaign – said at the press conference that as district attorney, his office has re-sentenced more than 300 people. Of those re-sentenced, he said only four people had re-offended.

“It’s a very low rate,” he says. “In fact if the recidivism rate for all the crimes we face were to be that low, we would be the safest society in the world — and we’re not.”

Experts weigh in: How likely are the brothers to go free?

PEOPLE previously spoke with Los Angeles lawyers about the likelihood that the brothers would be released from prison.

Former Los Angeles County senior deputy district attorney Dmitry Gorin told PEOPLE that the habeas filing was “a long shot.”

“I don’t know how much this new evidence moves the needle,” Gorin told PEOPLE, adding: “This doesn’t really change the evidence in the case. It’s more of the same. It’s horrible evidence. It’s tragic they were abused, but it’s more of the same.”

Defense lawyer Neama Rahmani agreed, calling the petition “a Hail Mary.”

“This isn’t enough, in my opinion,” he told PEOPLE, adding that he thought it “highly unlikely” the brothers would walk free.