Broderick Case Judge Restricts Testimony : Courts: Defense attorney claims private bench conferences are keeping him from presenting witnesses allowed in first murder trial.

Six weeks into the second murder trial of former La Jolla socialite Elisabeth Anne (Betty) Broderick, the most often-heard question in the courtroom is:

“Your honor, may we approach sidebar?”

Sidebar or bench conferences have come to dominate the trial of Broderick, who is accused of shooting to death her ex-husband and his second wife.

It has come to be routine for prosecutors Kerry Wells and Paul Burakoff and defense attorney Jack Earley to walk over to a corner and talk quietly with the judge. Most often, they discuss what one side can ask that the other will not oppose.

Courtroom observers say these conferences illustrate that Superior Court Judge Thomas J. Whelan is cutting a different figure from the open, media-friendly judge of last year’s trial. He said then he wanted to minimize such sidebar conferences and allowed a broad spectrum of defense evidence about Broderick’s marriage and her ex-husband’s behavior toward her.

Not only has Whelan held one after another of these sidebar conferences, but he also has closed them to the public and press, even though such conferences are routinely public and the defense has asked to keep them open. Nor has he allowed the transcripts of those conferences, usually public documents, to be released.

No one would speculate on the record as to what accounts for the changes.

But according to the defense attorney, their impact is clear. Most of the decisions, he has said in earlier interviews, have come at his expense.

In this trial, Whelan has prohibited a range of defense witnesses and testimony that were allowed at Broderick’s first trial, which ended in a hung jury.

Broderick has said that, before she killed her ex-husband, medical malpractice attorney Daniel T. Broderick III, 44, and his wife, Linda Kolkena Broderick, 28, it was partly the secrecy and duplicity of the San Diego legal system that made her life miserable.

Because of her ex-husband’s position as a past president of the San Diego County Bar Assn., she alleges, he held an unfair advantage with judges and other court-appointed officials as the couple’s angry divorce and custody battle dragged on for years.

Broderick went to her ex-husband’s house in the early hours of Nov. 5, 1989, and shot the couple to death as they were in bed. She contends that Daniel Broderick had upset her and worn her out and that she intended to kill only herself, but that when the couple moved, she panicked and shot.

Whelan declined to discuss the changes in the second trial. And prosecutor Wells has refused interviews until the trial ends.

But before a gag order was imposed last week against attorneys in the case, the defense lawyer said the prosecution was “trying to shut down almost any information about Betty.

“You cannot take the history of the people out of the case and confine it to a short period,” Earley complained.

Despite Earley’s arguments, Whelan has ordered several new restrictions so far:

* Daniel J. Sonkin, a marriage and family counselor from Sausalito, testified last year that Elisabeth Broderick had been “physically, sexually and psychologically” abused by her ex-husband.

But this year, he said, his testimony was examined in advance “line by line” and prosecutors were able to limit it so severely that, ultimately, it “lost its meaning.” As a result, Sonkin said, he and Earley agreed that he should not testify.

“They went through every single question Mr. Earley was going to ask me, which was a process I’ve never experienced in the 12 years I’ve been doing expert testimony,” Sonkin said.

* Lee Broderick, 20, the couple’s second child, testified last year that her father sometimes drove while under the influence of alcohol. No such testimony was allowed this year. In addition, other information about his convictions for driving under the influence was permitted a year ago but prohibited this year.

* This year, prosecutors objected to testimony about Elisabeth Broderick’s abortions that had come out in the first trial, and won Whelan’s support this time around.

Broderick was pregnant nine times, but testimony in this trial has not cleared up the mystery of why she delivered only four children. Some pregnancies ended in miscarriages; others were aborted.

Before the gag order, Earley said he wanted testimony about abortions included to show “what happens to a woman who has gone through that many pregnancies with a man. That’s a lot of hormonal changes.”

* Last year, a gynecologist testified as a defense witness that the Brodericks tried to have Betty’s tubes untied in 1984, one year after Daniel Broderick began having an affair with Linda Kolkena. The procedure would have allowed his wife to bear more children.

The gynecologist was not permitted to testify in this year’s trial.

In addition, much of the new evidence Earley has tried to introduce has been prohibited, he says.

For example, Earley lost an attempt to introduce a new witness whom he claims was contacted by Broderick’s ex-husband about having her killed in a murder-for-hire scheme.

Testimony in the Broderick trial resumes Tuesday.