Differences in Testimony Attacked : Court: Betty Broderick’s attorney says discrepancies between the first and second murder trials may be a ploy by prosecutors.

The defense attorney for Elisabeth Anne (Betty) Broderick hammered away Wednesday at discrepancies in prosecution testimony between the first and second trials.

Defense attorney Jack Earley said later that he took that approach on the second day of Broderick’s second trial because he felt the discrepancies represent an attempt by the prosecution to get witnesses to change testimony in seemingly subtle ways.

“I think the district attorney needs a certain scenario in the case, and I think their witnesses . . . are going to supply that,” Earley said. “They’re going to supply different testimony.”

Dr. Christopher Swalwell, a pathologist with the San Diego County medical examiner’s office who conducted the autopsies on gunshot victims Daniel T. Broderick III and his new wife, Linda Kolkena Broderick, was among the key prosecution witnesses who varied his testimony.

Elisabeth Broderick has admitted entering her ex-husband’s home on the morning of Nov. 5, 1989, and shooting him and his wife in their bedroom. The prosecution alleges that the victims were asleep; the defense maintains that they were awake and that words were exchanged.

Attorneys for both sides agree that the difference could be crucial in rendering a murder conviction as opposed to one of manslaughter. Last year’s trial ended in a hung jury, with 10 jurors opting for the harsher verdict and two holding out for manslaughter.

Swalwell testified at last year’s preliminary hearing and first trial that Daniel Broderick’s was a “through-and-through” wound, meaning the bullet passed through his back and out the chest cavity before being discovered by police on the carpet near the bed.

But Wednesday, Swalwell said he was no longer convinced of the nature of Broderick’s wound, that it “might not have been” through and through.

Earley finished a rigorous round of questioning by asking Swalwell, “In your opinion, the wound to Dan Broderick was not through and through?”

“What I meant to say,” an obviously confused Swalwell said, “was . . . that it could have been.”

Swalwell said he had become more uncertain because, in the intervening months, “I have had a chance to review the case thoroughly and to discuss it.”

He said he had seen different photographs of entry and exit wounds to both bodies and acknowledged that he had talked about the case more fully with police and prosecutors.

In other testimony, San Diego Police Sgt. Terry DeGelder, who supervised the collection of evidence at the crime scene, said Wednesday that he did not remember the cord being wrapped tightly around the telephone near the master bedroom in the Marston Hills home where the killings occurred.

But at last year’s trial, DeGelder testified that the cord was wrapped tightly around the telephone.

In addition, Brian Forbes, who, with Brad Wright, Elisabeth’s Broderick’s male roommate, was the first to discover the bodies, said Wednesday that he did not recall either man expressing a need to summon an ambulance to the residence.

At last year’s trial, Forbes testified about feeling the need to call an ambulance.

Asked about the significance of Wednesday’s testimony, Earley said afterward: “We’ll find out through other witnesses whether, all of a sudden, (the prosecution) is going to grab on to different scenarios. All of a sudden, they’re basing testimony now on the idea that it wasn’t a through-and-through wound.

“I think it’s fairly clear that these people (the victims) were moving at the time,” Earley said.

Earley said he was “suspicious” of Swalwell’s testimony, adding: “You get a witness on the stand who says, ‘I’m an expert,’ and now, ‘My opinion is not very good, and I can’t point to what changed it.’ The tenor of his testimony is different.”

Earley objected several times during Swalwell’s testimony, and on one occasion--when the subject of Daniel Broderick’s drinking came up--he approached the bench with prosecutors Kerry Wells and Paul Burakoff, who handled the direct examination.

Burakoff had asked Swalwell about Daniel Broderick’s blood-alcohol level at the time of his death (.04) and whether he, as an expert, felt that Broderick was either an alcoholic or tended to abuse alcohol.

“No,” Swalwell said. “Other than the fact that he had alcohol in his body.”

Swalwell said also that Broderick’s liver showed “no abnormality.”

Moments later, Earley attempted to ask questions about Broderick’s drinking habits, and, when Burakoff objected, Earley said sternly, “He opened the door,” then asked Judge Thomas J. Whelan if he could cite Daniel Broderick’s two driving-under-the-influence convictions.

After a heated, private discussion, Whelan said no.

Burakoff and Earley clashed at other points during the day. Burakoff objected when Earley asked Forbes, “After the homicide, did you get involved with a group of people wanting to ensure Elisabeth Broderick’s conviction?”

Burakoff objected again when Earley asked Forbes, “You are Irish, aren’t you?”

Daniel T. Broderick was a prominent medical malpractice attorney, the past president of the San Diego County Bar Assn. and visibly proud of his Irish-American heritage.

Forbes, himself an attorney, acknowledged that he and the victim had been “close friends.” Forbes continues to represent the estate of Daniel T. Broderick III in legal matters pertaining to his will and his divorce from Elisabeth Broderick.

Moments in Wednesday’s testimony had an impact on jurors and witnesses alike. Several people gasped upon hearing Forbes’ description of Daniel Broderick’s body lying in a pool of blood and saliva.

Throughout the day, Elisabeth Broderick rarely looked up. She took notes furiously or stared at the table as Burakoff showed gruesome pictures of the victims’ bullet-scarred bodies or demonstrated exit and entry wounds with crude foam models.

Broderick’s demeanor varied only once. As a female juror re-entered the courtroom, late, after the afternoon recess, Broderick greeted her with a beaming smile.