Strict Gag Rule Imposed in Broderick Trial : Law: Judge, in an unusual move, restricts press and public from hearings despite defendant’s wishes that the proceedings stay open.

The judge in the second murder trial of Elisabeth Anne (Betty) Broderick on Tuesday imposed a strict gag order on all attorneys and investigators in the case, and in a rare move, kept much of the day’s action off limits to the public, the media, and the jury.

Superior Court Judge Thomas J. Whelan began Tuesday’s session by saying he would exercise his authority “from time to time” and “keep some hearings closed.” The hearings concerned whether to allow testimony by a marriage counselor and other defense witnesses.

The hearings apparently were closed at the request of the prosecution, since the defense has made clear that it would prefer to have the proceedings held in public.

That situation makes Whelan’s decision “highly unusual,” according to John Carne, an attorney who specializes in media law.

“The thing that makes his rulings so very unusual is that, not only do the press and public want it to be open, but the defendant wants it to be open,” Carne said from his office in Oakland. “The defendant has strong Sixth Amendment rights regarding the public’s right to know. And, she has a right to have the media there that’s much stronger than their right to be there.”

Whelan’s rulings came one day after defense attorney Jack Earley disclosed the name of a man allegedly contacted by Daniel T. Broderick III for the purpose of having his ex-wife slain in a murder-for-hire scheme.

Earley’s remark came outside the jurors’ presence but at a time when the public and the media were there to hear it. Whelan promptly cleared the courtroom and issued a sharp reprimand to Earley. The gag order soon followed.

Whelan then decided not to allow the testimony of Paul Taylor, whom Earley identified as a party in the murder-for-hire scheme. Last Friday, Whelan also decided to keep transcripts of the conference on Taylor from the press and public.

Whelan stuck to his decision about closed hearings and sealed transcripts Tuesday morning, despite protests from an attorney for the San Diego Union and Tribune and from reporters for The Times and Courtroom Television Network.

The defense had sought to bring to the stand Daniel J. Sonkin, a marriage and family therapist who was paid to testify last year and said that Elisabeth Broderick was a battered woman. The prosecution opposes Sonkin’s appearance in this trial, saying he is not a licensed psychologist and that no compelling evidence of physical or sexual abuse exists.

Last year’s trial ended in a hung jury, with 10 jurors favoring a murder conviction and two holding out for manslaughter. Broderick, 44, is accused of murdering her ex-husband, Daniel Broderick, 44, and his second wife, Linda Kolkena Broderick, 28, on Nov. 5, 1989.

Media law specialist Carne said the closed hearings could give Earley grounds for an appeal.

“This may be a violation of the defendant’s rights,” Carne said, “and, if she’s convicted, I would see grounds for appeal as being quite strong. There’s a basis for keeping the press and public out--if the defendant wants it” but far less when the prosecution wants it.

Much of the testimony surrounding Elisabeth Broderick’s case has pointed to her contention that Daniel Broderick, a prominent medical malpractice attorney, harassed her by making legal threats, withholding money and humiliating her during their acrimonious divorce and custody dispute.

She contends that she broke into his Marston Hills home around dawn on a Sunday, intending only to confront him and his second wife over what she saw as lingering injustices.

She says she intended to commit suicide but became frightened and shot them instead.

At times on Tuesday, Broderick was allowed to remain in the courtroom but was excused at the same time as the public and the press.

For most of Tuesday afternoon, Whelan, defense counsel Earley and prosecutors Kerry Wells and Paul Burakoff met behind closed doors, arguing the merits of Sonkin as a witness and negotiating what he could and couldn’t say.

Before the courtroom was cleared Tuesday afternoon, Sonkin sat on the front row, studying his testimony from last year’s trial. The transcript was marked with red slashes, indicating material that is now off-limits.

The media and the public were kept out of the courtroom for most of the day,

Of testimony that was allowed Tuesday, Lucy Peredun, Broderick’s former roommate, described her as a devoted mother whose moods depended on whether she could see her children. Peredun said she lived with Broderick for six months in 1988.

Sources say Whelan hopes to have closing arguments wrapped up by next Wednesday and to give instructions to the jury by Dec. 2, with deliberations to follow.