Until the Twelfth of Never - Should Betty Broderick ever be free?

by Bella Stumbo

  "Her office was nothing but Maalox bottles and soda crackers," said investigator Bill Green, laughing despite himself. "It got to the point that I couldn't even bring a jar of pickles into the office or she'd throw up."

  Betty, meantime, was only warming up. Observing her chief antagonist in life, now that Dan was dead, she sounded more like a quipster for Mad magazine, or Spy, than a woman on trial for multiple murders: "Why doesn't Kerry Wells get her bony ass home and wipe noses, and do the soccer and the Little League and the piano for twenty years, and then when her husband leaves her, come back to prosecute me?"

  Nor was she satisfied simply to taunt Wells in the media. A few weeks after she was jailed, one of Betty's former cell mates sent her a postcard—a close-up photo of a penis with sunglasses perched across its hairy base. Betty sent it to Wells with a note: "See what I have to put up with?" Wells grimly reported this to the judge at the next hearing, as reporters grinned into their notebooks. Journalists covering the Broderick trial couldn't believe their good luck. The battle lines were drawn. The Church Lady versus Crazy Betty.

  And that was before they even got to know defense attorney Jack Earley, who would spend the next two years blaspheming the dead with almost as much gusto as Betty did. By the time the case was over, it was hard to tell whom the Broderick camp despised more, the killer or her lawyer.

  Initially, there was little about forty-one-year-old Jack Earley to suggest a gunslinger ready to take on the San Diego legal establishment on behalf of a female killer pleading the novel defense of psychological abuse. The flashiest thing about him was the ice blue Jaguar he rode into town the day he met Betty Broderick. He came from Newport Beach, another fashionable coastal community an hour north of San Diego, where he had been in private practice since 1982. Murder was his specialty, and, beyond responding to the obvious human fascination involved in such cases, Earley, like many criminal defense attorneys, also harbored a genuine philosophic aversion to the death penalty—which, in the beginning, is what most observers expected the state to seek for Betty Broderick.

  In appearance, he was a pleasant-looking, preppy young man given to dark, conservatively tailored suits, loafers, murky maroon print ties and button-down shirts, usually in pale blue; he wore dark-rimmed glasses over hazel eyes which were definitely not mirrors to his soul; his best feature was his head of thick, wavy dark hair—which would display many silver threads before he was done with Betty.

  His personal style was equally ordinary. In court and out, he was calm, methodic, deliberate, plodding. Unlike Kerry Wells, he was also consistently friendly and relaxed with reporters, but his emotions were always hard to find; spontaneity is not a part of his makeup. Ask Jack Earley what he thinks about the weather, and he will think it over. He seldom snaps, but his smile is also always a pause delayed. It takes time to discover the cynical, black-hearted wit lurking beyond the public persona.

  Earley is one of life's nonreactors. He listens, he calculates. Beyond all else, he is, as most good criminal attorneys are, a tactician. He doesn't defend homicide on any moral grounds—nobody can. But he has a solid grip on the psychological tools needed to persuade a jury that, sometimes, in this mercurial world of conflicting human passions, homicide might be an excusable solution.

  A native of Virginia, Earley graduated from Southern California's Loyola Law School and worked for several years as a public defender before going into private practice. He had handled at least thirty murder cases. His clients had ranged from a frightened old lady who shot wildly into the darkness of her home, killing a teenaged burglar, to some of the most depraved examples of humanity imaginable—such as the rejected boyfriend who threw acid on his former girlfriend before dismembering her; another spurned lover who took murderous revenge not on the girlfriend but on her seven-year-old son instead, beating him to death; the daughter who hired a couple of teenagers to kill her aging father for his insurance.

  Of this lot, Earley had lost only three clients to life without possibility of parole, and of six death penalty cases, none to death row. One reason for his success was that, in Earley's experience, the average accused killer (as opposed, for example, to a bank robber or embezzler) is far more docile, more willing to do precisely whatever an attorney tells him or her to do—unless, of course, the accused is so certifiably insane that it doesn't matter anyway, since he/she will never be brought to trial.

  Jack Earley, in short, was confident that he knew his killers.

  But that was before Jack met Betty, after being contacted by her friend Dian Black.

  He remembers his first visit with Betty well. He was at Las Colinas for three hours, listening to "the story"—her account of the pressures that had driven her to kill. "She didn't really like me at first, because I didn't cry about her story, like a lot of [other attorneys] did." And, he adds dryly, "I was very tired when I left. I could see that she would be a very difficult client, because she was so intelligent. It's a lot easier when they're stupid."

  Betty remembers her first impressions of Earley, too. She thought he was "a doofus," a dull, colorless man "who had no idea in hell of what it was that I went through! He looked bored at everything I said! I just didn't think he got it!" Translated: Jack wasn't Dan.

  But she hired Earley anyway, primarily because she had no better alternative. At the time she had a cash fund of at least $750,000—including proceeds from del Cielo, which had been sold shortly after the homicide for about $1 million. Earley agreed to take the case, she says today, for a flat fee of $250,000, although he would later bill her for twice that. He says the other half went to "pay her own bills—she insisted we pay her bills." She, of course, accuses him of lying. Betty would never trust Earley any more than she trusted any of her other attorneys.

  Earley and his client bickered over dollars steadily for the next two years, occasionally with such passion that at times the whole affair seemed less like a murder trial than a TV sitcom. "Why must I pay this (department store) bill, when I can't even pay my investigators?" Earley griped one afternoon, sitting in his office, glaring at a stack of Betty's credit card charges.

  "Because I'm no deadbeat!" Betty screeched over the phone later. "I'd rather my money went to department stores than to another fucking lawyer!"

  "This is going to be an antagonistic relationship, I sense it," Earley said, deadpan.

  But, contrary to Betty's original cynicism, Jack Earley grasped the elements of her story at once. In fact, in those first months of 1990, he bristled about San Diego like a tomcat stalking the biggest fight of his career. He threatened to sue for a change of venue on grounds that Betty could never get a fair trial in Dan Broderick's town. He promised to challenge every single judge on the San Diego bench on grounds of potential bias. At the same time, he was becoming an overnight feminist, reading at least snatches of every important book on battered women he could lay hands on.

  "She was emotionally abused, Dan Broderick used his influence to batter her relentlessly ... He was determined to drive her so crazy she would kill herself," Earley said in the first weeks, flushed with enthusiasm as he tested his argument on reporters. "It was Chinese water torture … drip drip drip, until finally she snapped. Betty was just a simple housewife, and suddenly she was thrown into the ring with a gladiator. He had all the advantages, all the skills. These courtrooms were Dan Broderick's domain—he controlled them and her money, too. How long could any intelligent woman stand up against that without snapping?" By the time he finished, Earley looked ready to weep.

  Earley's plan, from the outset, was to retry not only the entire four-year divorce case but also Dan's prior two-year affair with Linda, if he could. It all depended on whether Wells would open the door to character assassination by trying to demonstrate through a parade of attorneys and judges what an exemplary human Dan was.

  "Oh, how I hope they will try to defend his character," said Earley almost prayerfully in early 1990, with a wicked little grin. "If I can just get Kerry to get down in t
he mud with me, Betty's going to win—because we can show that she was always a decent, good mother, and he was a falling-down, cold, vindictive drunk ... I want all the hearsay in, all the smut, all the dirt, all the character evidence to come in."

  His strategy, too, was always to focus more on Dan, less on Betty—"She's not sympathetic enough because she's so angry," he said matter-of-factly. His primary goal, always, was to make Dan Broderick look so mean, so selfish, so unlikable that no jury could regret his death. "The key," he once remarked, "is to help jurors see that maybe the victim deserved it."

  It was Linda who worried him more. "She's harder," he fretted. "It's harder to make a jury dislike the new wife as much as the man who abused the old wife …" And so, he concluded, annoyed as a plumber confronting a mystery leak, "Betty's probably going to have to serve more time for her than him."

  Earley also quickly concluded that the press might be among his most useful tools. And, although his first big print splash, the Los Angeles Times Magazine cover story, was negative, he wasn't discouraged. "I don't care if the piece is positive or negative—the very fact that a major newspaper finds Betty's story worth a magazine cover is a plus. It lends her case legitimacy, no matter what the content is."

  He was also enjoying his own new-found celebrity. He even grew his hair out a little. He liked it almost as much as Betty did when the Ladies' Home Journal called. He was even happier when 20/20 came to town and Oprah later flew him to Chicago for a live performance. None of his other clients had ever landed him on national TV.

  But it didn't take long for Earley's media strategy to backfire, simply because, as he soon learned, he could never control his own client. He couldn't stop Betty from calling reporters on her own and saying whatever came to mind—and he had zero luck in persuading her to tone down her self-justifying outrage. Once she made headlines by telling a reporter that it was God's will that guided her bullets. "Either God or my Good Fairy," she later elaborated.

  In the beginning, before Earley became a wiser man, he used to say, "Betty has simply got to admit, at some point, that something horrible has occurred here." But within a matter of time, he was only grinning weakly at his own optimism. At times during the next two years—especially after visits with Betty at Las Colinas—Jack Earley wore the bewildered, half-dazed expression of a man who could not believe he had ever been stupid or venal enough to take on Betty Broderick's defense. "If I had it to do over, I would not take this case, not for any amount of money. She's the hardest client I've ever worked with," he said, sighing, prior to the first trial. "She simply will not take advice."

  Even so, this much is beyond dispute: Jack Earley was probably one of the few attorneys in California with the temperament to deal with Betty Broderick for two months, much less two years, without quitting in frustration, or at least smacking her.

  Through it all, Earley did his best to hang on to his emotional battery defense. But he was increasingly discouraged not only by Betty's stubbornness, but also by the stark facts of his case. His client had bought a gun, driven across town, climbed the stairs, and not only shot them in bed, but then ripped the phone out of the wall. Although Earley seemed genuinely to believe his own drip drip drip theory, he was also a practical man. It would not be easy to convey to twelve jurors in two or three weeks the accumulating pressures one woman suffered over seven long years—particularly when that woman consistently displayed more defiant anger than shattered, weeping remorse.

  Thus, he gradually toned down his rhetoric. He stopped talking about hiring such nationally noted experts on battered women as Charles Patrick Ewing or Lenore Walker. Instead, he said, he had concluded that it wasn't in Betty's best interests to introduce such well-known names into her trial because "The prosecution will be able to anticipate our case in advance." (If he had asked them and been refused, he would never admit it.) Instead, he said, he would bring a lesser known witness to testify to the battery issues.

  Earley also began to back off his earlier, fiery promise to pioneer emotional battery as the central defense in Betty's case. Instead, he worried increasingly that it might be a mistake to even introduce the term into his own arguments because "it's a buzzword. It's too radical." It might be counter-productive, he thought, to brand Betty's trial with any intense feminist ideology that could alienate a potentially conservative, middle-class jury. Instead, he decided it was wiser to simply tell Betty's story and let the jurors draw their own conclusions.

  By the eve of the first trial, Earley sounded like a man bound for a funeral. "This is not a good case," he once remarked gloomily. "The best we can hope for is that she won't get two first-degrees. Twenty years [for second-degree convictions] is a lot better than looking at life with no possibility of parole."

  At least once, according to Betty, he also tried to get her to agree to a plea bargain, accepting two second-degrees. "I told him to fuck off," she says. "First he tells me we have a good case, now he tells me to plea-bargain—after he's got all my money? Well, I don't think so. Noooooo. Not at all!"

  Earley did apply for a change of venue, but, as he expected, it was denied. He also abandoned as just another futile gesture, his vow to challenge every judge in town. Instead, by springtime 1990, after only two challenges, he agreed to accept Judge Thomas J. Whelan, a veteran deputy district attorney who had just been appointed to the bench in January.

  Whelan looked the part of a judge more than most. A big, ruddy-complected man with silver hair, his face was homely and tired, marked by old acne scars, but with features that had settled into the kind of quiet, kindly resignation of one who has done some hard living and not found it all that bad. He never raised his voice; sometimes he seemed almost to be sleeping on the bench, lying back with his eyes closed. Everyone agreed he was a Spencer Tracy look-alike. The only glitch in this perfect picture was the old-fashioned hair oil he favored, and he also usually wore his pants an inch too short.

  A devout Catholic and family man whose wife is a teacher in La Jolla—at the same parochial school Kim and Lee Broderick once attended—Whelan was the sort of judge that most jurors like and trust on sight—which turned out to be just one more problem for Jack Earley.

  Although Whelan would change his mind by the second trial, at the start of the first one, he seemed determined to conduct this case in the most open way possible, particularly given Betty Broderick's long-standing claims that the San Diego courts had always been biased against her. In early pretrial hearings, Whelan meticulously documented his every ruling on attorney motions with not one but half a dozen case citations. "I don't even want to have sidebar conferences [private sessions with the attorneys] unless it's absolutely necessary," he told reporters. Like everyone else, they, too, instantly liked this friendly, down-home judge.

  Whelan also announced at the outset that he intended to conduct a murder trial—not a rehash of the Broderick divorce. Therefore, he ruled in pretrial evidence hearings that the financial terms of the Broderick divorce settlement would be off-limits in the criminal trial. It was inappropriate, he said, to retry the two-year-old decision of a divorce court judge in a murder trial. He would permit a copy of the financial settlement to be entered into evidence for the perusal of any juror who might be interested, but that was it. Nor, he ruled, would either attorney be allowed to editorialize on the divorce settlement in the courtroom.

  Further hobbling Earley, Whelan also ruled that neither side would be permitted either to defend or attack the character of Dan and Linda Broderick, unless a direct correlation to Betty Broderick's state of mind at the time of the killings could be shown. In other words, witnesses such as the secretary who had lectured Dan about his deception with Linda would not be permitted, since Betty didn't know about it.

  Throughout both trials, the question of Betty Broderick's sanity remained the great unspoken, the issue nobody wanted to address.

  In California, as in many states, there is no longer any such defense as "diminished capacity" or "temporary ins
anity"—but did Betty qualify for something in between? Was she competent to proceed in her own defense? Had she been driven over the edge to the point that no trial should be conducted at all? Was she responsible, or not? Mentally well, or not?

  No satisfactory answer was ever provided, either by the defense or by the State of California. Kerry Wells of course, was never even remotely interested in any diagnosis of Betty Broderick's mental health beyond one that read: Narcissist. Selfish. Evil. Jack Earley's concerns were more complex. In the first place, despite the fact that Betty couldn't, or wouldn't, cooperate with him in her own best interests, she was apparently too coherent, too angry, and too charming ever to be a candidate for the local asylum. "I've had people in to see her. And nobody will find her incompetent," he said prior to the first trial. Nor was he attempting any intensive therapy in jail. The last thing he wanted now, he admitted, was some therapist breaking down Betty's furious mental defenses before trial, "because then I might have a basket case on my hands, instead of a woman able to testify in her own behalf."

  Earley was far more interested in Betty's physical appearance than in her psyche. He wanted to get her on a diet; he wanted the woman who would take the witness stand in her own behalf in the fall to look as close as possible to the striking, slender woman that she been when Dan Broderick walked out.

  "I don't want the jury to look at her and think, 'What a fat pig, no wonder the guy left her,'" said Earley. "I want them instead to see a lovely, intelligent woman who is now in the process of healing after all the horrors Dan put her through. I want her to wear makeup, I want her to dress well, I want her to have her nails done …"