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

by Bella Stumbo

  And so it went. Betty Broderick, mad enough to kill, stood trial not once but twice as a competent, rational, sane adult, despite the fact that the common standard for sanity in this country is simple: Does the defendant know right from wrong? Ask Betty that question and, to this day, she will say the same thing: it wasn't wrong. "I had to do it! He was trying to kill me and my kids! I'm not the crazy one. Dan Broderick is. My mental health isn't at issue—his is!"

  Despite the multitude of enduring questions that the Broderick case raised about sexual politics, circa 1990—and despite the fact that this was ultimately a drama decided by men—"The People of the State of California versus Elisabeth Anne Broderick" was always courtroom theater dominated by two strong women.

  Over the next months, it was sometimes almost funny watching Jack Earley trying to cope with the prosecutor and his client, two emotionally charged women, each dealing with the matter of murder on trial for the first time, one swathed in quivering moral outrage, the other serene in moral rectitude—both chewing away at poor Earley, who could never really comprehend the blistering passions of either.

  Betty plucked at Earley's sleeve constantly, alternately whispering, smiling, and pouting, passing him endless busy notes of reminder and advice, while Wells pointed her finger at him and glared. Earley blinked, he sighed, he shrugged, he tried to ignore it all—but, despite himself, he became the straight man in a miniseries, reflecting, day after day, the temperamental differences between men and women.

  Nor did he get any help from Judge Whelan, sitting upon his bench with closed eyes, wearing a small smile of bemusement, saying so little that, some days, he was an almost invisible courtroom personality. Whenever Earley did flare—usually when he thought the judge had favored Wells in some ruling—Whelan's reply was always the same. "Knock it off, Mr. Earley," he would say, quietly, but with the firmness of a street fighter you didn't want to push too far. Wells would lift her chin in triumph, Earley would sag into his chair, blinking through his spectacles, whipped again—and, invariably, Betty would smile at him with the apologetic timidity of a woman who was so very sorry for whatever discomfort she had caused.

  Completing the cast of leading characters who would coexist in Whelan's courtroom like some irascible little Addams family, were Marion L. Pasas and William L. Green, chief investigators for the opposing sides—and, as anyone closely observing a criminal trial soon learns, leading architects of the case itself. Courtroom attorneys, like TV anchormen, can be no better than the behind-the-scenes reporters who shape their stories for them; likewise, criminal investigators, the unsung heroes of every trial, can only pray for attorneys with enough courtroom flair to showcase their work in a winning way.

  A San Diego native and onetime probation officer before she became a private investigator and jury consultant specializing in death penalty cases, Marion Pasas was hired by Jack Earley to canvas the city for witnesses who would remember Betty as the exemplary mother and wife she had once been and, hopefully, in the process, trash Dan and Linda Broderick for gradually destroying her.

  She also served, once the trial began, as chief baby-sitter of Betty. Sitting daily between Earley and Betty, Pasas was responsible for preventing the defendant from distracting Earley while he argued for her freedom, as well as intimidating her into behaving properly before the jury—which is to say, like a remorseful woman on trial for murder, not a social hostess. An attractive, stylish woman with a striking mane of curly silver hair, forty-six when she joined the case, Marion Pasas does not fail at much, but she failed miserably in that small task. Finally, like Earley, she surrendered to the reality that Betty was unlike any client she had ever seen.

  "Serial killers are easier to work with," she once remarked in exasperation, "because they know they're in deep trouble. They just do what you tell them. But Betty just never saw herself as a person on trial for murder, so she could never understand the importance of her demeanor. When somebody she knew walked into court, she just had to wave and smile. She thought it would have been rude otherwise."

  Pasas's counterpart on the prosecution side, William Green, was a twenty-five-year veteran of the San Diego police department who had been working for twelve years as assistant chief of pretrial investigations for the district attorney's office. A mild-mannered, relaxed man also in his mid-forties, trim and balding, divorced and without children like Pasas, Green still sports the neatly clipped, de rigueur cop's moustache—and also the quietly cautious, confident manner of a professional skeptic.

  Like Pasas, Green spent his summer canvassing the city—but in search of the exact opposite point of view: he wanted witnesses who would recall what a harridan Betty had been, how she had driven Dan Broderick away, then mercilessly abused not only him and Linda but, more importantly, her children, too, in the years before the homicides.

  Green enjoyed the novelty of this new assignment. Unlike most cases he works, "It was a dream in the sense that people would return calls, they lived where they said they did, their phone numbers didn't turn out to be bogus."

  But Green was under less pressure than Pasas to produce. Witnesses were never as critical to the prosecution, simply because Kerry Wells always had the added, invaluable assistance of Daniel T. Broderick III, whose meticulously collected evidence against his ex-wife from their four-year divorce war, including all her nasty phone messages and letters, would become central to the state's case.

  "It's not fair," Jack Earley sometimes groaned. "Kerry doesn't have to do a thing to build her case—Dan's doing it for her, even from the grave."

  "The sonofabitch! He still has his hand around my ankle from the grave. He'll never let me go," Betty agreed.

  Marion Pasas was also in charge of the clothes detail. At least a month before the trial began, Betty began worrying about what she would wear. She eventually submitted to Marion a detailed list of twelve different outfits she wanted, complete with matching shoes and jewelry. She wanted "the white Adolpho with the matching white snakeskin pumps," and her "gold set." She wanted the blue Escada with the cowl neck, and the brown lizards." She wanted a beige cashmere St. John ensemble with silk leopard-print blouse. And she wanted three colorful Diane Fries print party dresses with matching Bruno Magli pumps in red, turquoise, and mauve.

  "I can't believe this," muttered Pasas. "She is not wearing Diane Fries to court, period."

  But Marion Pasas is a kindhearted woman, so she let Betty have most of what she wanted. "What the hell," she said, sighing. "It may be the last time she ever gets to wear these things." She went to Betty's storage garage to search for every single item Betty wanted, right down to the matching pumps. Betty's daughters and friends had already raided most of her prettiest clothes. But the shoes remained. Size elevens. At least fifty boxes, all neatly labeled by color and leather type. Betty definitely had a streak of Imelda Marcos in her when it came to shoes.

  Rummaging through the crammed garage, Pasas also found Betty Broderick's wedding dress, packed in a cardboard box. The waistline looked about eighteen inches around. A lovely thing with a high neck, bordered in lace, with long sleeves. "Why," asked Pasas softly, holding the dress up, "do you suppose she kept this?"

  The San Diego County Superior Courtroom where the Broderick trials occurred was one of the smallest in the building, with only thirty-six seats. It was ugly and oppressive, a windowless place lined with cheap wood paneling, tan tile floors, and furnished with brown chairs, all cast in gloomy fluorescent lighting. Behind the judge's bench on a shelf sat a scale of justice and a large hourglass that nobody ever turned over. The judge was flanked by the flags of California and the United States, with a dreary poster of George Washington off to one side.

  For her first day in court, Betty wore a fitted royal blue two-piece suit and blouse by Louis Feraud. Her hair was a hard yellow in the artificial light, curled too tight on jailhouse rollers. She looked like a queen-sized Barbie doll in a bad wig. Her manner was that of a woman taking her seat at a charity luncheon.
No shame, no timidity showed. She kept smiling at reporters, making little waves, rolling her eyes, mouthing hellos.

  At last, the bailiffs opened the doors and the first of two panels of sixty jurors marched in.

  They were not a visibly affluent group, these silent, somber people who came forth to do their civic duty on this warm autumn day. Many were elderly, the majority men. Most were dressed in cotton dresses and slacks, T-shirts and shorts. Only two were middle-aged, conspicuously well-groomed women; only a handful of the men wore ties. These were not people who spend $95 on chewy pralines at Neiman's when they felt depressed or stressed.

  They stared at Betty, she stared at them. She smiled, timidly. A middle-aged woman in the front row, short and fat, wearing a magenta cotton housedress, her hair bleached a bad blond, smiled back, gently. Next to her sat an old man with white hair, whose eyes were cold with judgment. A teenager in shorts giggled nervously as she settled into her chair.

  It was an awe-inspiring moment. Somewhere in this mixed crowd would be twelve good men and women to decide the rest of Betty Broderick's life.

  Jury selection began on September 27, 1990, and lasted three weeks— half as long as the trial itself and, as Judge Whelan later remarked, more time than most criminal cases take in their entirety.

  Jurors were first given lengthy questionnaires, compiled by Wells and Earley, probing their views on everything from divorce and abortion to the integrity of the legal system. One question Earley insisted on had to do with the attitudes of potential jurors toward women who use vulgar language.

  "I'd like to start 'em out with three Hail Marys. 'And now repeat after me fifteen times—cunt-fuck-cunt-fuck,'" Earley later cracked dryly.

  Earley's idea of the perfect juror, he joked, was "a Catholic wife and mother, married forty years, who doesn't believe in divorce, but who reads Lear's, belongs to NOW, and has a daughter married to an Irish American drunk." That, or a panel of divorcees whose husbands were behind in child support.

  At the same time, the defense knew Kerry Wells would be looking for twelve conservative males, who thought of feminists as "libbers," had perhaps left a wife—but otherwise had never suffered so much as a traffic ticket due to their law-abiding ways. Either that, or women too young ever to have received a single bad blow in life from even a boyfriend. Alas for the defense, the deck was stacked heavily from the outset, by luck of the random jury pool draw, in Kerry Wells's favor. The majority of those in the pool were Republicans who read Reader's Digest regularly, went to church, and had great respect for American institutions. Most professed to have no attitudes on divorce, infidelity, abortion, or alcoholism.

  If Earley wanted a little bitterness, a little anger in his people, Wells guarded against any hint of it. She was hunting for people who see no gray zones in life, only black and white.

  In the end, only thirty-three people were automatically excused from the prospective panel of one hundred and twenty—sixteen for bias and nine for hardship. After that, serious jury selection began with voir dire (literally "true talk" in Latin), which is that phase of the process when attorneys question the potential jurors directly on their personal attitudes toward issues raised by the case. Each side was entitled to twenty "peremptories," or dismissals without explanation. It is similar to a poker game in that, once the peremptories are exhausted, the attorneys are stuck with whichever twelve jurors are left seated in the box.

  Thus, there is no more critical phase in jury selection than voir dire. Both sides weigh every potential juror's words carefully and even watch their expressions with the vigilance of chicken hawks in a barnyard, searching for hints of hidden personality clues that may either sink or save the defendant.

  In one of the silliest little ploys on the part of the prosecution, aimed strictly at making Wells look heroically lonesome in her uphill fight against crime, her jury consultant, an elderly, stern-faced man in gray, sat not at the table with her but in the audience instead, where he would signal his feelings about each juror, pro or con, by either tugging at his ear or rubbing his nose. It was so transparent that, in time, even prospective jurors would glance at him to see if they had been nixed or not.

  If Kerry Wells wanted no feminists on the jury, neither did she want any male chauvinists who saw women as wilting lilies to be protected. She wanted people who believed that women can be as cold and ruthless as any man.

  "Do you think a woman is capable of committing a crime of violence for jealousy or revenge?" she asked each. "Did it necessarily have to be an emotional act? Can you convict, even though you might not like the victim?

  "Do you think there are any differences between men and women?" Wells asked a pretty social worker of around forty. "Of course," said the woman, looking almost insulted at the question. Dismissed by Wells.

  "How would you describe yourself?" Wells asked a tired-looking, gentle-mannered woman in her thirties.

  "Understanding, I guess …" said the woman thoughtfully. Gone.

  Earley, meantime, basically laid out his entire case by asking potential jurors about certain homilies, platitudes, and clichés. Among his favorites, he asked repeatedly if they had heard of the following expressions:

  "Good ole boy network." Did they know what that is?

  "Hell hath no fury like a woman scorned." Did they believe that?

  "Don't speak ill of the dead"?

  "Straw that broke the camel's back"?

  "Who you know is more important than what you know"?

  On the first day of jury selection, Betty apparently toyed briefly with the idea of a plea bargain. "What's the best offer Kerry will make?" said one of the dozens of notes she slipped to Pasas. Others were less substantive. "My mother gave me a sweet sixteen party. No boys allowed!" she wrote in one, apropos of nothing.

  But, throughout the process, Betty rarely volunteered an opinion on her potential jurors, Pasas said. She also spent time reading William Styron's book ‘Memoirs in Madness’. She underlined nearly the whole thing.

  By the end of jury selection, Pasas had become increasingly concerned that Betty was "losing it," that she might in fact be legally incompetent to proceed (or ICP) in her own defense. During the interrogation of a prospective juror, a pathologist, for example, Betty kept writing "Empty Caskets" on a notepad, then showing it to Pasas. She did this several times. "I don't know what she was talking about," said Pasas. Later, Betty explained that neither Dan nor Linda had actually been buried. "They were cremated … Their bodies weren't even in those expensive caskets. It was all for show. Dan Broderick would've approved."

  Then, abruptly, it was over. The Betty Broderick jury was sworn in. She smiled sweetly at them.

  Those who survived to judge were six women and six men, ranging in age from nineteen to sixty-two. Four were Catholics; only two listed any college. The majority were homeowners; all were white except one Hispanic man. They were a calm, pleasant, serious-faced group of people, mostly of the sort you might find at the church pie sale on Sunday or playing checkers in the park.

  The youngest, Nicole Prentice, worked in a suntan parlor. The defense worried that she might relate to Kim or even Linda, but figured she was too young to influence anybody else. The two oldest jurors, at sixty-two, were David Southwick, a handsome, craggy-faced highway worker, married forty years, and Eloise Duffield, a sweet-faced, silvery-haired grandmother and retired preschool teacher who spent most of the trial looking shocked at all she heard. The defense counted on her to despise Dan's treatment of a once wonderful mother like Betty.

  Other jurors were mostly so mild in personality that neither side knew how to peg them. One was a sixty-one-year-old mother of eight, employed by Pacific Bell. Another was an auto shop teacher, fifty-seven, once-divorced. Another was a thirty-nine-year-old construction worker, married to a legal secretary; he said he didn't like attorneys, which pleased the defense. On the other hand, he had been involved in a bitter custody dispute, which pleased the prosecution.

  The panel als
o included an American Airlines flight attendant, forty-five, married with two children. The prosecution liked her because she was an airline attendant, as Linda had been. The defense liked her because she had once been spirited enough to force the airline to reinstate her after being dismissed for pregnancy. One of the two jurors with some college was a bearded building contractor, thirty-six, married without children, who remarked in voir dire that murder stories bored him.

  Another, Terilyn Berg, forty-four, married and mother of three, managed a naval base cafe. In her most memorable remark of voir dire, she said she had never even heard of the Broderick case because "when you're busy feeding hungry kids, you don't pay attention."

  Roque Jesse Barros, Jr., thirty-one, was a social worker who dealt mostly with abused children. The defense worried that he might see Betty as a child abuser. He wouldn't even have been seated, except Earley mistakenly gambled that Wells wouldn't accept the jury panel as soon as she did.

  Lucinda Swann, twenty-six, married but without children, employed by the San Diego Air Pollution Control District, was so shy in voir dire that her subsequent choice as jury foreman startled both sides.

  But in the end only one juror would really matter: Walter Polk, fifty-nine, a naval aviation repairman, married for forty-three years with six children. Balding and bespectacled, Polk was the only juror to wear a suit and tie to court every day. Pasas was drawn to Polk from the outset, partly because he cynically remarked during voir dire that he thought the news media, starting with Dan Rather, often "made news" instead of reporting it. Unlike other prospective jurors, Polk also freely admitted that he had discussed the Broderick case at work and with his wife and found it fascinating. Polk was also an ardent gun-control opponent and member of the National Rifle Association, which Pasas also liked. "Strong foreman potential," she wrote at the bottom of his questionnaire. Ironically, Bill Green later said that Polk had also been a heavy favorite with the prosecution, partly because he seemed too circumspect a citizen to sympathize with a killer like Betty.