Judge Denies Broderick Bail, Won’t Narrow Sentencing Possibilities : Courts: A first-degree murder conviction will remain one of the choices for jurors in the socialite’s retrial.

Saying he was swayed by the severity of her conduct, and by the fact that she had killed two people, Judge Thomas J. Whelan denied bail to Elisabeth Anne (Betty) Broderick on Tuesday and refused to eliminate first-degree murder from consideration during a retrial.

Defense attorney Jack Earley said he was disappointed with the judge’s ruling and said he plans to appeal, contending that the judge failed to give clear instructions to the jury regarding a first-degree murder conviction.

“The jury was not properly instructed on whether they should vote to find her guilty or not guilty of first-degree murder,” he told reporters outside the courtroom after the ruling. “Because they were never instructed to take such a vote, they never reached a decision on whether she was guilty or innocent of murder in the first degree.”

Whelan disputed Earley’s contention, saying clear instructions were given, and he ordered both sides to reappear in court Monday to discuss a retrial. Earley said he may know at that time whether he’ll remain as Betty Broderick’s attorney.

“Even if I do,” he said, “I wouldn’t be available for a retrial until the summer.”

Earley, a prominent defense lawyer from Newport Beach, said that, at the moment, he is acting on Broderick’s behalf at his own expense, a circumstance he doesn’t see changing.

Deputy Dist. Atty. Kerry Wells said afterward that she was “delighted” with the judge’s ruling and expects a first-degree murder conviction as the most likely outcome of a retrial.

In arguing against bail and in favor of retaining first-degree murder as a possible verdict, Wells said Broderick poses a threat “to the rest of the community” and that her “violent acting-out in the past” was a cause of concern.

“She tried to set her house on fire,” Wells said. “She drove her car through the front door of her ex-husband’s house. Even her own psychiatrist testified during the trial that she suffers from serious psychological disorders--she’s a ‘borderline’ personality, a ‘histrionic’ personality, a ‘narcissistic’ personality. And she’s continued to act compulsively as a result of her inappropriate, intense anger.”

Wearing a bright blue coat and matching blouse, a weary-looking Broderick sat impassively through much of the session but was visibly moved when Whelan announced his ruling. Flanked by a bank of television minicams and “boom” microphones, she bit her lip and winced.

Broderick has admitted driving to the home of her ex-husband, prominent medical malpractice attorney Daniel T. Broderick III, and his second wife, Linda Kolkena Broderick, and killing them in their bedroom on Nov. 5, 1989.

Her first trial ended Nov. 20 in a hung jury and without a verdict. The judge declared a mistrial, which Earley argued Tuesday could have been avoided had the jury received clearer instructions.

Earley said he based his contention on post-trial affidavits obtained from jurors who said a vote on first-degree murder was never taken. Prosecutor Wells countered by citing affidavits she had received from two jurors who said they favored a conviction of first-degree murder.

Jurors later said the final vote found 10 favoring a second-degree murder conviction, with two holding out for voluntary manslaughter.

On Tuesday, Earley asked for a plea of “once in jeopardy” on his client’s behalf, which Whelan denied.

Later, Earley said, “Had he accepted the plea, he could have dismissed the case, or he could have eliminated the possibility of murder in the first degree. I based my plea on an illegal discharge of the jury.”

Earley asked for bail of $250,000, saying Broderick “poses no threat to anyone else.” He also complained that Broderick’s incarceration in the Las Colinas Jail in Santee made it difficult for her to see all of the paperwork “vital to her defense.”

Wells argued that Broderick poses “a flight risk” and, if released, might follow through on threats against Larry Broderick, Daniel Broderick’s brother, who recently testified that she intended to harm him as well.

“I have to consider the protection of the public,” Whelan said, in denying the bail motion. “I’m aware of the comments made on Dec. 6 by the brother of Daniel Broderick. I’m aware that the defendant is accused of having committed two violent crimes, and that she’s admitted to having killed two people.

“I’m aware that, at one time, the defendant freely carried a firearm and that she still faces the possibility of life in prison without parole. And thus I find that a continuance of her no-bail status is fully justified.”