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

by Bella Stumbo

  An hour later, the jury had been formally instructed in its duties, obligations, and options, and dispatched to the deliberation room. It was Thursday, November 15.

  The press promptly set up a rotating watchdog system outside the jury room. Earley seemed cheered that the media appeared to be hunkering in for the long haul.

  "Please God," he wisecracked gloomily at lunch, "just don't let them come back today. If they only stay out overnight, I can at least save some face. It's the ones who return in two hours, laughing, that you never forget."

  When the jurors had not returned by Friday night, Earley was euphoric. "Heh, heh," he chortled, in his little makeshift office. "Now it's Kerry who's gonna throw up and snap at her kids all weekend, not me."

  Betty's spirits were eerily high that weekend. Dian Black had gone to Colinas to visit on Saturday, wearing a T-shirt that read "Free the La Jolla Narcissist."

  "I loved it," said Betty, giggling excitedly over the phone. She was talking almost too fast to understand. "I thought it was soooo funny!"

  That weekend her two daughters also came to see her. Kim repeated her view that her mother deserved punishment, but Betty was too thrilled that she even came to visit to care.

  But by Sunday, some of the gay, giddy edge was diluted by the reality that tomorrow was Monday. Those twelve strangers, after a weekend break, would be back to their deliberations. Now an edge of nervous irritability underlay her chirpy, cheerful tone.

  "I hope that jury doesn't come back at all Monday, Tuesday, or Wednesday, and then we've got a hung jury," she said. "Or, if they come back, of course, I hope they come back with the only logical thing to do. Send me home. I've had enough of this bullshit!"

  The jury did not return on Monday. By now, excitement in the courthouse corridor was reaching a new pitch. Clearly, there was dissension in the jury room. The day passed with reporters taking bets on whether it would be a verdict of first or second degree. Only Marion Pasas thought otherwise. "Maybe it's just wishful thinking," she said, "but my bet is that they're undecided, that we're going to get a hung jury."

  On Tuesday, day four, the jurors returned.

  This was not one of those fabled juries, where people come back crying in distress, or looking frazzled. This jury hadn't been out long enough to be tired. Instead, they mostly looked annoyed and embarrassed as they filed into the jury box.

  They were unable to reach a unanimous decision, Swann told Whelan.

  He quizzed her. Was she sure? How many times had they voted?

  She stuttered nervously. She couldn't remember whether they had voted three or four times. One of the other jurors prompted her. Well, maybe they had voted half a dozen times, Swann amended.

  But nobody really seemed to know for sure. The only thing they did know was that, no matter how long they stayed in that room, they weren't ever going to agree on whether Betty Broderick had committed murder or manslaughter or some combination of both.

  And the reason was Walter Polk, the quiet, proper little man in his impeccable brown suits and ties—the juror both sides had counted on to go their way. Polk had also taken Terilyn Berg, the forty-four-year-old housewife, along with him. In the final vote, it was ten for murder, two for manslaughter. But, according to jurors later, they might as well have returned the first day, because Polk was implacable from the first hour that he would never vote for murder, no matter how long they deliberated. He later told reporters that he thought Dan had been so ruthless and relentless in his treatment of Betty that his only real question was, "What took her so long?"

  * * *

  Whelan declared a mistrial and dismissed the jury.

  Betty, dressed for the last day of trial in the same royal blue suit she had worn the first day, smiled uncertainly. What did it mean? she whispered to Pasas.

  Pandemonium ensued. Earley, first looking shocked, then delighted, waited in the courtroom—"out of etiquette"—until Wells finished with the mob of reporters in the corridor. He had won by default.

  Wells seemed on the verge of tears. She was, she told reporters, "obviously very disappointed ... I thought the evidence supported a verdict ... I see the issue as her sneaking into people's homes and shooting them in their sleep. I call that murder ... it [the loss] is horrible."

  When she finished, Earley came out and, buoyed by his victory, announced to the world, for the first time, what he thought the correct result should have been: "The proper verdict would have been voluntary manslaughter." Even involuntary manslaughter, carrying a sentence of two to four years, would not have been unreasonable, he added.

  He said he would continue to represent Betty: "I will be there. She wants me as her attorney, and I like her as a client." He promised to argue for bail for Betty prior to the second trial—but added that he would also be amenable to a plea bargain, if his client was.

  In addition, if all twelve jurors would agree that they had ruled out first-degree murder, then Earley said he would argue that it shouldn't even be an option in the second trial, on grounds of double jeopardy. The threat of a life sentence without parole could be eliminated entirely.

  Jack Earley had never in his wildest dreams expected to get a hung jury. Privately, he was a man in shock. Once the elevator doors closed behind him, he sagged against the wall, laughing helplessly, giddily. "Oh, my God. This means I've got to deal with Betty for another whole year!"

  But, within the hour, as he sat in a bar next to his office, celebrating his victory with a Scotch and water, reality was sinking in fast. Why should he stay on this case? At the moment, he was on top, a winner. Plus, Betty was now indigent and could no longer pay his $260 per hour fees. Why should he accept the county's cheaper rates to do it all over again? Besides, the next time around, he was gloomily convinced, he was sure to lose, because the prosecutor now knew his entire defense. Next time, Betty very well might get two first-degrees. "It would've probably been better for Betty if she had gotten two seconds this time," he said. Still, Jack Earley had rarely been happier. "Poor Kerry," he chortled. The fact remained: he had at least won Round One.

  * * *

  That night, the Broderick case was the talk of the town. In bars everywhere, debate raged—mostly along gender lines.

  "The legal system is top-heavy with males," a female secretary told a Union reporter at Dobson's, one of Dan's favorite haunts. "I think this is a good day for women."

  "This is every man's biggest fear," complained a male executive in the same bar, "that your ex-wife can shoot you and get away with it!"

  But the most poignantly bitter comment of all came from Union cartoonist Steve Kelley, Linda's onetime boyfriend. In his published drawing the next day, he showed two tombstones run down by a Suburban van with a license plate reading, not "LODEMUP" but "JURY."

  Jurors tracked down by reporters described the chaos in the deliberation room. They couldn't even agree as to what the original vote had been. Some said it started out with seven voting for murder, five for manslaughter. Others said it was eight to three with one abstention.

  Either way, although ten eventually agreed on murder, they never got far enough in their deliberations to determine whether it was first or second degree—and for one victim, or both. The main debate, said juror Charles Henderson, the auto mechanics teacher, centered around whether Betty had killed with malice or because she had been suddenly provoked. But, he said, only a couple of jurors thought she was capable of first degree premeditation. "The majority of us felt that there was no real premeditation …" At the same time, he added, "I don't think anybody really and truly thought she was going over there to kill herself …" On the other hand, "I felt she was provoked … Dan was in a position where he could pull all the strings and she felt powerless …"

  Several other jurors said that Earley's strategy of putting Dan Broderick on trial had worked. "That was clearly a defense tactic, and it had its effect. I think that's partly why we hung up," said juror Michael Byrd.

  Others said they were put off
by the prosecution's witnesses—such as Melvin Goldzband and Ruth Roth. Both "experts" went too far overboard, said one juror, in declaring that, despite all their years of experience, the Broderick case was the worst they had ever seen. Their credibility, he said, "went to zero."

  But, in the final analysis, it was only Walter Polk who really mattered.

  In Polk's view, killing was out of character for Betty—but Dan's behavior was excessively cruel. Polk thought that "any normal person with normal intelligence and normal personality, after a lengthy period of time of mental abuse, would be driven to shoot somebody, kill somebody, or do some harm to them. It happens every day … every human has a breaking point … with humans or any animal, you push them to that point and they're going to bite back."

  Linda barely came up in deliberations, he said. In Polk's view, Linda wasn't even the target. "She was just in the wrong place at the wrong time …" Earley "presented a brilliant defense", Polk thought, "and Kerry Wells presented a fantastic prosecution—but she failed when she took Betty to the bedroom door and dropped it." Polk also thought it regrettable that Earley couldn't argue self-defense on grounds that Betty was a battered woman. The laws should be changed to better protect abused women, in his opinion.

  However ironically, Betty Broderick had been saved, at least in the first round, not by a woman but by a gentleman from the old school.

  A week later, Earley lost in a bid to have Betty freed on $250,000 bail. Larry Broderick had flown in from Denver to testify that Betty was "an evil monster in a harmless-looking package." He was convinced, he told Whelan, that if she should be released on bail, she would show up in Colorado in an attempt to see her sons. At which point, "I fear, we fear, and the court should probably assume, that there will be bloodshed." Whose blood he didn't say.

  Earley called Broderick's performance "grandstanding" and untrue. There was not a shred of evidence, he argued, that Betty Broderick had ever threatened to kill Larry Broderick, much less her boys. She was, Earley said, no longer a danger to anyone and should therefore be released on bail.

  Whelan disagreed. Bail was denied.

  Betty would spend the next year in Las Colinas.

  Earley's hopes of having first-degree murder eliminated in the next trial on grounds of double jeopardy were also dashed when only nine of the jurors agreed to sign affidavits saying that they had discounted first-degree murder in their deliberations.

  Finally, amid much speculation that Kerry Wells might be removed from the case for failing to win a conviction, she was reassigned to prosecute Betty a second time.

  "It ain't over 'til it's over," she later told reporters, beaming in happy relief, "and Betty Broderick isn't getting rid of me till it's over."

  Chapter 39

  1991

  Betty sailed through her second year in jail with uncanny good cheer, doing exactly what she had done the year before: talking on the phone to friends and reporters and responding to her sympathy mail, which had only increased after the hung jury.

  Although she complained periodically about boredom and "no fresh food, no decent water, no exercise, lack of cosmetics, and ugly jail clothes," she really didn't seem to mind. Her tone was consistently upbeat, alert, and optimistic.

  Nothing about her suggested despair at her situation or remorse for her deeds. If anything, she only grew more articulate in her anger, more confident of her position. Outwardly, at least, instead of weakening, she grew stronger, harder, tougher. "Of course I'm better," she said gaily one day, "because I've had a chance in here to think, to heal. I provide my own therapy, because at last I've got peace. No stress." Las Colinas had been "like a vacation." Although it "wasn't Michelin five-star," she cracked to one reporter, "the price is right."

  She was, in sum, institutionalizing completely. Her roommate for many months was a woman later convicted of first-degree murder for pushing a young girl off a cliff to collect insurance. The two of them got along fine, said Betty, "except she cheats at cards." She read books and newspapers and watched TV. World news interested her only moderately. When the United States invaded Iraq in January, she was puzzled. "If we can get close enough to photograph [Saddam Hussein], why can't we just assassinate him?" she asked.

  And her zany sense of humor was untouched. On April Fool's Day, she called several friends and told them, "I've escaped. I'm at the 7-Eleven. Come and get me." She called to invite a reporter to lunch. "Pick me up at the back fence. Bring wire cutters." She even called Gail Forbes, "just to hear the shock in her voice," she said, giggling. And she mailed out several copies of a Gary Larson cartoon, showing a grumpy-looking housewife standing at a window, calling her dog. But the doggie door was nailed shut. "Here, Fifi … Faster, Fifi," the woman was urging as the dog raced up the sidewalk. Betty had marked out "Fifi" and written in "Betty."

  She worked her press connections faithfully all year. Two of her favorites were Cynthia Queen of the La Jolla Light and John Gaines at the Union. But she would soon outgrow local reporters, because, throughout 1991, she was getting bigger and better press all the time. In March, the Ladies Home Journal printed its story, a sympathetic piece entitled "Hell Hath No Fury," which was widely reprinted abroad. For the first time, Betty Broderick began receiving international fan mail from "Ireland, England, France—even the Philippines and weird little places like that."

  And it had only begun. By autumn, Mirabella magazine printed an even more sympathetic piece with a cover headline taken from Walter Polk's one-liner, "In Hot Blood: Why Did Betty Broderick Wait So Long to Kill Her Husband?"

  Earley, nearly as eager to cooperate with the media as Betty, was a happy man. All that soured his spirits was the TV movie underway. Nobody ever called him or Betty for their views. Instead, consultants included Larry Broderick and Sharon Blanchet.

  Only Betty's weight clearly reflected the continuing fury, the tangle of untreated emotions inside. Although she had lost a few pounds before her first trial, during the long months between trials she put it all back on, and her skin broke out. "It's all the junk food they serve us, plus the inactivity. I'd kill for a walk on the beach." Even now, Betty hasn't learned to exorcise such casual threats to kill from her conversation. "Old habits die hard," she once said, chortling at the double entendre.

  Dan's friends, meantime, continued to pay tribute to his memory. The American Ireland Fund began a drive to collect money for a library in his name in the Broderick ancestral village of Listowel, Ireland. The San Diego County Bar Association established a Daniel T. Broderick III Memorial Fund—reportedly collecting around $50,000—to refurbish a meeting room in Broderick's name at the bar headquarters building downtown. An oil painting of him, plus a long plaque listing names of donors, were part of the planned decor. The fund created a minor controversy in the legal community. One tax attorney wrote to the bar association magazine complaining that, in his view, the money would be better spent assisting all who suffer from domestic violence." Meanwhile, the Trial Lawyers Association established an annual Daniel T. Broderick III Award for "professional integrity."

  * * *

  Then, in April, Earley abruptly offered Kerry Wells a surprising plea bargain—he publicly agreed to accept a twenty-year sentence on charges ranging from manslaughter and kidnapping to burglary and assault. The kidnapping apparently referred to Betty's failure to return Rhett on schedule during the summer of 1989, the burglary to her theft of the wedding list and Linda's T-shirt.

  The offer was seemingly no more than pure, perverse hyperbole on Earley's part, aimed strictly at evoking public sympathy. See—he was a reasonable man with a reasonable client, both trying to save everyone further emotional pain and the taxpayers the cost of another long trial. But it was so obviously untenable that he hadn't even consulted Betty about it in advance. All Wells could tell reporters, sounding more bewildered than indignant, was that Earley's offer had been rejected since it "didn't appropriately describe the crimes that were committed."

  Betty read about it in
the next day's newspaper, and her response was predictable. "Is Jack fucking crazy? He thinks I'm going to plea-bargain to kidnapping my own kids? And twenty years? Get real! I should be doing community service, just like Ollie North."

  Otherwise, Earley took the year off from Betty, spending his time defending other less celebrated killers instead. Betty had not yet been granted the right to call her sons, much less see them—but that was no longer Earley's concern. Until Betty had run out of money after the first trial, another lawyer from his office had been handling the custody aspects of the case, which seemed never to move either forward or backward. But now that attorney had withdrawn, so—just as she had in her divorce trial—Betty was once again representing herself against Dan's attorney friends in pro per. Or, alone.

  Kerry Wells, however, got no break from Betty during the year between trials. After the first trial, she was deluged with unsolicited advice from Broderick family and friends about how to better prosecute Betty Broderick the second time around. Most notably, in June, she received a remarkably presumptuous letter from Dan's brother Larry, laying out a thirteen-point program for improving her performance. These opinions, Broderick wrote, were the consensus of both the Broderick family and also several of Dan's attorney friends, including Dave Monahan, Ken Coveny, Ed Chapin, and Brian Forbes. All had studied Betty's testimony in transcripts provided by Monahan, conferred by telephone, and critiqued Kerry's case. The suggestions contained in his letter, Broderick said, were based on "what I believe would have the most positive impact on a jury of lower-middle-class, less-than-average-intelligence jurors." Among his points of advice: