Broderick Trial Attorneys, Judge Conferring a Lot More

Six weeks into the second murder trial of 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 the former La Jolla socialite accused of shooting to death her ex-husband and his new wife.

It has come to be routine for the two prosecutors 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 won’t oppose.

Courtroom observers say Superior Court Judge Thomas J. Whelan is cutting a different figure from the open, media-friendly judge of last year’s trial. At that time, he said 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.

This year, not only has he held numerous sidebar conferences, but he also has closed them to the public and press, though routinely such conferences are 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.

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

No one would speculate on the record as to what accounts for the changes. But, according to defense attorney Earley, their impact is clear. Most of the decisions, he said in interviews before a gag order was imposed, have come at his expense.

Broderick has long maintained that, before she killed her ex-husband, medical malpractice attorney Daniel T. Broderick III, 44, and his second 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 their angry divorce and custody battle dragged on for years before ending in bloodshed.

Ultimately, Broderick went to her ex-husband’s house in the early-morning hours of a Sunday two years ago and shot the couple to death as they were in bed. She contends that she intended to kill only herself, but that when the couple moved, she panicked and shot.

Whelan, a former prosecutor for whom last year’s trial was among his first as a judge, declined to discuss the changes in the second trial. And Deputy Dist. Atty. Kerry Wells has refused interviews until the conclusion of the trial.

Before the gag order imposed last week against attorneys in the case, Earley 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,” he complained. “When you look at Betty’s actions, you can’t look at them in a vacuum. When you consider what happened, you have to consider everything.”

Despite Earley’s arguments, Whelan has ordered several new restrictions so far in the second trial:

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

But at this year’s trial, 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 take the stand.

“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. “The district attorney had access to every question that I was going to be asked and knew exactly how to cross-examine me.”

* 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 occurred this year. In addition, other information about his convictions for drunk driving was permitted a year ago but prohibited this year.

Last year, some critics charged that defense testimony made it seem as though Daniel Broderick, rather than his ex-wife, was the person being tried.

* 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 this year, testimony has not cleared up the mystery of why she delivered only four children. Some pregnancies had 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.”

After winning the restrictions, however, it was Wells who first asked about abortions, drawing an angry objection from Earley.

* Last year, a gynecologist testified as a defense witness, saying that, as a couple, the Brodericks tried to have her tubes untied in 1984, one year after Daniel Broderick began having an affair with Linda Kolkena, to allow 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 in this trial has been prohibited.

So far, Whelan has not permitted the introduction of Elisabeth Broderick’s Marriage Encounter book, written in 1976, which, in Earley’s words, proves that the “Betty” of that time was idealistic and caring.

Daniel Broderick’s Marriage Encounter book, written in 1976, has been allowed as evidence in this year’s trial. In it, Daniel Broderick says he won’t be able to attain true happiness until he reaches his ultimate goal of massive material wealth.

Earley has said no attempt was made to enter Elisabeth Broderick’s Marriage Encounter book in last year’s trial because it was missing and “did not turn up” until early this year. Whelan’s ruling on her Marriage Encounter book is expected this week.

This year, Earley also has tried to introduce a new witness who he claims was contacted by Broderick’s ex-husband about having her killed in a murder-for-hire scheme.

The allegation surfaced last week, but Whelan ruled it irrelevant, and after, Earley mentioned the name during a public hearing, Whelan cleared the courtroom and slapped a gag order on the attorneys and their investigators.

Earley and attorneys for the Copley Press, the parent company of the San Diego Union, have since filed writs protesting Whelan’s actions in closing the hearings and keeping the transcripts sealed.

Testimony in the Broderick trial resumes Tuesday.