Broderick Seeks Bail Pending Second Trial

With her lawyer arguing that she deserves to be released on bail, La Jolla socialite Elisabeth Anne (Betty) Broderick returned to court Tuesday, a week after a mistrial was declared in her double-murder trial. The hearing lasted less than three minutes.

In that brief span, however, defense lawyer Jack Earley said that Betty Broderick may not be able to afford bail or his fees for a second trial. Later, he said bail should be $250,000 and put his fees at $250 an hour.

And, if there is a second trial, Earley said, she should not be charged with first-degree murder because jurors told him that they decided against that charge.

Deputy Dist. Atty. Kerry Wells, the prosecutor in the case, said later Tuesday that she will oppose bail and any move to reduce charges.

She also said that there will be a second trial, and that she will prosecute the case the second time around. “It ain’t over till it’s over,” Wells said. “And Betty Broderick isn’t getting rid of me till it’s over.”

Superior Court Judge Jesus Rodriguez set a Dec. 6 hearing to consider bail and the propriety of first-degree murder charges. He set another hearing, for Dec. 17, to schedule a second trial. And he said Broderick’s finances would be considered in the coming weeks, after she files financial disclosure forms with the court.

Broderick, 43, has been charged with two counts of first-degree murder in the Nov. 5, 1989, shooting deaths of her ex-husband, Daniel T. Broderick III, and his second wife, Linda Kolkena Broderick.

Daniel Broderick, who was 44, was a prominent medical malpractice attorney and a former president of the San Diego County Bar Assn. Linda Kolkena Broderick, who was 28, was his office assistant.

After 16 years of marriage, Daniel and Betty Broderick separated in 1985. During and after a bitter divorce, which took four years to conclude, Betty Broderick accused him of using his legal influence to cheat her out of his fair share of his seven-figure annual income.

During her monthlong trial, Betty Broderick admitted firing the shots that killed him and his new wife.

Testifying in her own defense, she contended at the trial that she did not have the premeditation the law requires for first-degree murder because she intended only to confront him and kill herself last Nov. 5, when she entered his house before dawn.

Prosecutor Wells contends that Broderick fully intended the killings, and that she executed her ex-husband and his new wife after years of rising rage that stemmed from the divorce.

After four days of deliberations, jurors announced Nov. 20 that they were deadlocked, 10 for murder and two for manslaughter.

Shortly before dismissing jurors, Superior Court Judge Thomas Whelan, who presided over the trial, explicitly asked them whether they had a unanimous verdict on either count of first-degree murder, one apiece for Daniel and Linda Broderick. Jury foreman Lucinda L. Swann, 26, of San Diego, a county air pollution inspector, said no.

However, Earley said Tuesday that, after contacting all 12 jurors over the past few days, he was told that, in the panel’s last ballot, all 12 agreed that Betty Broderick was not guilty of first-degree murder.

Some jurors remembered a unanimous vote expressly rejecting first-degree murder while others recalled only their own rejection of the charge, but no juror voted in favor of a first-degree charge, Earley said. He said he would be ready at the Dec. 6 hearing to present sworn statements to that effect from nine of the 12 jurors.

Last week, Earley made an unusual, informal request of Whelan to reconvene the jury so that it can formally announce that it considered and rejected first-degree murder. Whelan has not yet acted on that bid.

On Dec. 6, Earley said, he intended to renew his novel request and to present the sworn statements, then ask Whelan--who already has been assigned to the Dec. 6 and Dec. 17 hearings--to eliminate first-degree murder as a charge because of double jeopardy, the legal rule that bars prosecution at a second trial after acquittal at a first trial.

Wells, who urged the jury to return two first-degree murder convictions at the first trial, said Tuesday she would oppose any move to drop first-degree as an option. She declined to elaborate.

Wells said she would oppose bail for Betty Broderick, who has been held without bail at the Las Colinas Jail in Santee since she surrendered to police only hours after the killings.

Larry Broderick, Daniel Broderick’s brother, a Colorado forest products executive, said Tuesday that he is “strongly opposed” to the granting of bail.

Noting that Betty Broderick herself said at the trial that she had frequently disobeyed court orders during the divorce, Larry Broderick said, “She has never, since the whole sordid ordeal began five or six years ago, attached any import to the law.”

“Second, she has threatened to murder me,” Larry Broderick said. “I’m inclined to take those threats more seriously than I would have a year and a half ago.”

Earley, however, said Betty Broderick is no longer a danger to anyone or anything. She “should be entitled to bail, and she should get bail,” he said.

He said that, because of his schedule, the soonest he could be ready for a second trial would be next June. If another lawyer has to take over the case, and learn all its details, a second trial might not begin for another year, he said.

Since Betty Broderick has no income and limited assets, Earley said she may be declared indigent, entitling her to a public defender or a county-paid defense at the second trial. If that happens, he said, he could stay on the case only if he accepts the county rate of $65 or $75 per hour for murder cases.

Earley also said Tuesday that there had been no discussions about a plea bargain since the mistrial was declared. But he said a deal is “always a possibility.”