Broderick Prosecutors Get Extra Legal Advice : Courts: A letter from Dan Broderick’s brother--also a lawyer--offers tips on how best to convict Betty Broderick. Her attorneys call it proof of a conspiracy by the legal community.

The prosecutor in the murder trial of Elisabeth Anne (Betty) Broderick has received a letter from the younger brother of Daniel T. Broderick III, suggesting ways of ensuring a conviction with a “less than middle class” jury of “less than average intelligence.”

Denver businessman L.G. (Larry) Broderick says in the letter that a group of Daniel Broderick’s friends and relatives, including at least one prominent San Diego attorney, met and provided suggestions for prosecuting Elisabeth Broderick the “second time around.”

Her attorney said the letter supports the defense contention that the legal community is stacked against her.

“I would think anyone in the legal community would be totally outraged by this,” defense attorney Jack Earley said. “I would think the community would be outraged enough to want to do something, outraged enough to want to investigate. Each of these lawyers is a prominent member of the Bar.”

According to the letter, David Monahan, a San Diego lawyer and close friend of Daniel Broderick, sent “transcripts of Elizabeth’s ( sic ) testimony (from the first trial) to several of Dan’s family and friends, soliciting comments.”

“Since that time, we have had a couple of meetings and much telephone conversation about what suggestions we might offer you” in prosecuting the second trial, the letter says.

“While the words are mine,” Broderick writes, “they represent the consensus view of the group.”

Several prominent San Diego attorneys acknowledged having discussed legal tactics with each other and with Larry Broderick but denied having a hand in the letter, which is dated June 21, 1991, and lists six attorneys as receiving copies. All are members of the San Diego County Bar Assn., of which Daniel Broderick was a past president.

The letter, which was sent to The Times anonymously, cites ways that the case “might be better prosecuted the second time around,” even if it means introducing “hearsay and inadmissible” evidence and letting a “parade” of witnesses “ramble on.”

“Make the defense object,” the letter says. “Make the court rule in their favor. Part of each anecdote or story will find it’s ( sic ) way into the minds of the jury.”

The letter also recommends that Deputy Dist. Atty. Kerry Wells have Daniel and Elisabeth Broderick’s two sons, Danny, 15, and Rhett, 12, testify near the end of the trial “to have the greatest possible lasting impact on the jury.” Neither boy testified in the first trial.

Elisabeth Broderick is accused of murdering her ex-husband and his wife, Linda Kolkena Broderick, 28, in the bedroom of their Marston Hills home on the morning of Nov. 5, 1989. The prosecution is seeking a sentence of life in prison without parole.

Last year, Broderick’s first trial ended in a hung jury, with 10 jurors favoring a murder conviction and two holding out for manslaughter. The defense contends that Elisabeth Broderick, frustrated by divorce and custody problems, intended only to kill herself.

Attorneys mentioned in the letter agreed Thursday that they have had conversations with Larry Broderick and other family members--and that legal strategies have been discussed--but they denied being part of an organized effort.

“Why don’t you ask Larry what he means by the letter?” David Monahan said. “Whatever implications you draw are the ones you draw. There’s no group. That’s ridiculous. But we’d all like to see justice done--very, very much.”

Larry Broderick could not be reached for comment.

But defense attorney Earley said Thursday that the letter supports Elisabeth Broderick’s contention that her ex-husband, a prominent medical malpractice attorney, used his “considerable influence” in a divorce and custody battle that raged on for years.

Earley said that “11 of the 12 suggestions mentioned in the letter have already been followed,” the exception being the testimony of Danny and Rhett. Both have been subpoenaed and may still testify.

Among the suggestions in the letter was that Wells not prosecute the case alone in the second trial. A second attorney has been added in the courtroom.

Earley said it was “utterly inappropriate” to “coach witnesses on how to do illegal things. It’s one thing to instruct witnesses on how to bring forth the best information, but to do it knowing it’s inadmissible . . . is reprehensible.”

Prosecutor Wells, whose illness forced the postponement of the Broderick trial Thursday, could not be reached for comment.

Linda Miller, a spokeswoman for the San Diego County district attorney, said Wells and Deputy Dist. Atty. Paul Burakoff, who are acting as co-prosecutors, “believe it would be unethical for them to discuss anything like this.”

“You should know that it’s not unusual to get unsolicited letters, especially from friends and family members of crime victims. But it has absolutely no impact on our prosecution.”

The attorneys whose names appear at the end of the letter as getting copies are David Monahan, Bob Vaage, Brian Forbes, Ken Coveney, Tom Warwick, Edward Chapin and Dennis J. Broderick, a brother of Daniel Broderick and a lawyer in the Midwest.

Warwick is secretary of the San Diego County Bar Assn., and Chapin is its third-year vice president.

“We were in business together. Dan was a very close friend of mine,” Vaage said. “Dan comes from a very close-knit family. They’ve had a lot of questions, and, of course, I’ve spoken to them about it.

“Dan’s friends and everyone else in this town have talked about this case, but never have I heard someone suggest that we were part of a conspiracy. Friends and family members have never suggested anything unethical.”

Coveney, who represents Larry Broderick in his capacity as executor of his brother’s estate, said he had “not talked with anybody about putting illegal evidence before the jury.”

Tom Warwick said that, in his capacity as one of Larry Broderick’s attorneys, he could “neither confirm nor deny” questions raised in the letter.

Chapin, who described himself as a longtime friend of the family, said, “I’ve discussed the case with Larry, but to say we’ve discussed strategies--and how to implement them--would not be accurate. I’m not a criminal prosecutor. I’m a civil lawyer.

“But it would be less than candid to say that the hurt, the frustration that is felt by this tragedy has not been discussed, and for sure, that includes concerns over the way the defense has tried to manipulate the court.”

But Chapin said that, as a lawyer, he would never instruct witnesses to “ramble on, because I don’t tell witnesses to do those things, and Dan Broderick wouldn’t either. Each of the men on that list are of the utmost integrity, and I am categorically certain that none of them suggested to Larry that there be any inappropriate conduct engaged in the prosecution of this case.”

The matter of the letter first surfaced in testimony last week, when Brian Forbes said he had received the letter but was not part of a group organized, in Earley’s words, to color evidence in front of “less than middle class jurors.”

Prosecutor Wells objected to Earley’s question and to his attempt to have the letter introduced into evidence. Superior Court Judge Thomas J. Whelan sustained the objection. Attorneys for both sides refused to provide The Times with a copy of the letter.

At the start of testimony the next day, Whelan told the jurors that they should disregard the reference and that “neither party in the case” perceives them as less than middle class or less than intelligent. The letter was written before the jury was selected.

In the letter, Larry Broderick asks the prosecutor to “accept the notion that the suggestions I forward . . . are based, not necessarily on what may be legally presented by the state . . . but on the basis of what I believe would have the most positive impact on a jury of lower middle class, less than average intelligence jurors.”

The letter says that “every lie that Elizabeth tells on the stand should be refuted--regardless of how long it takes. . . . In testimony before the jury, each (prosecution witness) should then take the opportunity to ramble on a little about Dan and Linda.”

The letter recommends using “hearsay and inadmissible” evidence.

“We should try it half a dozen times,” it reads, “until the judge gets real aggressive about sustaining defense objections. This way the jury will learn what is going on which will have a greater impact than if they are simply told the rules.”

Earley said he believes the letter is relevant because Elisabeth Broderick has said the legal community in San Diego was against her “throughout her divorce proceedings, and people were saying she was crazy.”

“Well, lo and behold, a letter pops up that speaks very closely to the issue of whether she’s being treated differently because of Dan’s considerable influence and standing in the legal community. I think it shows . . . the deck was stacked against her.”