Judges Might Testify at Broderick Trial

The San Diego Superior Court judge presiding over Elisabeth Anne (Betty) Broderick’s double murder trial ruled Friday that two other local judges could not be automatically excluded from testifying at the trial simply because they were on the bench.

But, Judge Thomas J. Whelan said, the two judges, who issued rulings in Broderick’s bitter divorce with her ex-husband, would not be allowed to testify about any decisions made in the course of the divorce proceedings.

If Judges William J. Howatt Jr. or Anthony C. Joseph were called to testify, Whelan said, they could testify only about what they knew independently about Betty Broderick or her ex-husband, Daniel T. Broderick III, or what they perceived as they watched the couple in their courtrooms.

The ruling concluded the first week of Broderick’s double murder trial. There was no testimony Friday in the case.

Broderick, 42, faces two counts of murder in the shooting deaths last Nov. 5 of her ex-husband and his new wife, Linda Kolkena Broderick. If convicted, she could be sentenced to life in prison without parole.

Daniel Broderick was a prominent medical malpractice lawyer and a former county bar president.

During and after the bitter divorce, which began when the couple separated in 1985 and took four years, Betty Broderick accused her husband of using his legal influence to cheat her out of her fair share of his seven-figure annual income.

According to court records, Howatt conducted the divorce trial. Joseph handled two contempt citations Daniel Broderick brought against Betty Broderick in connection with the divorce case.

Both Deputy Dist. Atty. Kerry Wells, the prosecutor in the murder case, and defense lawyer Jack Earley have issued subpoenas for the two judges to testify in Betty Broderick’s criminal trial, Whelan said Friday. In response to the subpoenas, the two judges, through a county lawyer, asked Whelan Friday to rule they were ineligible to testify.

The issuance of a subpoena--a notice to appear--does not mean that a person will actually testify. Further, it was not clear why the judges have been put on alert since both said in court filings that they did not know Daniel or Betty Broderick socially.

Whelan ruled before the murder trial began that the propriety of judicial rulings in the divorce action would not be discussed in the criminal case. Deputy County Counsel R. Mark Beesley argued Friday that Howatt or Joseph were flatly ineligible to testify, since they had nothing to talk about besides divorce case rulings.

Beesley also said that it would be “dangerous” to “put a judge in a position where the weight of his office might appear to support one party or another.”

Whelan, however, said that he could not automatically assume that either judge had nothing to offer other than the reasoning behind rulings in the divorce action, and so he refused to rule them ineligible.

Neither Earley nor Wells disclosed Friday why they had issued subpoenas for the judges.

Before either judge--or any other judge that might be called in the case--took the stand, Whelan said Friday he wanted to be told in advance what they would talk about.

Testimony in the case is due to resume Monday. Wells expects to finish her case on Monday and Betty Broderick is due to testify in her own defense.