Prosecutors May Read Broderick's Diaries, Judge Rules

TIMES STAFF WRITER

Prosecutors are entitled to pore through secret diaries kept by murder suspect Elisabeth Anne (Betty) Broderick, a San Diego Superior Court judge ruled Thursday. He said they might prove to be evidence, the same way a gun could.

Although the diaries might contain immense amounts of irrelevant material, that was not enough of a reason, as Broderick's defense lawyer claimed, to keep them from prosecutors, Judge Thomas Whelan said.

Whelan said prosecutors have the right to search for statements they might find useful, the same way that police are authorized to search the scene of a killing for bullets or shell casings.

The ruling was one of several decisions Whelan issued at a pretrial hearing on technical defense attempts to keep various items from being used as evidence at Broderick's upcoming trial. Those efforts failed, but there was no indication from Whelan or the lawyers in the case that any single piece of evidence--including any of the diaries--was by itself critical.

Broderick, 42, is accused of murdering her ex-husband, Daniel T. Broderick, 44, a prominent medical malpractice lawyer, and his new wife, Linda Kolkena Broderick, last Nov. 5. She has pleaded innocent and is being held without bail at the County Jail in Las Colinas.

Her trial is scheduled to begin Sept. 6.

Daniel and Betty Broderick divorced in 1986, after 16 years of marriage. During and after the bitter divorce, Betty accused Daniel of using his legal influence to cheat her out of her fair share of his seven-figure income.

Betty Broderick confessed to the slayings in a March interview with The Times, calling the killings a "desperate act of self-defense" against a man who wanted to control her. She attended the hearing on Thursday before Whelan.

The existence of the diaries was disclosed only recently by prosecutors, who contended in legal papers that defense attorney Jack Earley had known about them--and been able to read them--for months but declined to share them.

Broderick began writing the diaries around February, 1985, when she and Daniel separated, Earley said Thursday, adding that the diaries--10 volumes in all--end in mid-1988.

According to Earley, two or three volumes consist of longhand drafts of Broderick's book-length manuscript of her marriage, "What's a Nice Girl to Do? A Story of White Collar Domestic Violence in America."

Deputy Dist. Atty. Kerry Wells told Whelan last month that Earley had an obligation to turn over the diaries to the prosecution, contending that they might offer clues to Betty Broderick's emotional state. After that claim was made, Earley submitted the diaries to Whelan for safekeeping.

Earley said Thursday that he had no problem with turning over relevant passages, if there were any. But he objected to sharing all 10 volumes, saying there might be material that Broderick intended to share only with her lawyers during the divorce or might simply be embarrassing.

"She is still presumed to be innocent, still a private citizen and still has a right to privacy to things that she owns," Earley said.

Whelan, however, said that it was up to prosecutors, not the defense, to decide what might be relevant to the prosecution of the case, and ordered the disclosure of all 10 volumes.

"Just as a gun would be evidence of how a homicide was committed, these diaries could be evidence of why," he said.

Whelan said, though, that he is concerned about the release of material Broderick intended only for her lawyers, because that should stay secret. To preserve any confidences, Whelan said, he will review the diaries before he turns them over to prosecutors at the next hearing in the case, scheduled Aug. 16.

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