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

by Bella Stumbo

  It was the only evidence in nearly two years since the killings that she was tiring, or changing, in even the smallest ways.

  Chapter 40

  Trial Two: Hitmen, Hotel Rooms,

  and Other Ugly Things

  The second Broderick trial was, in most ways, a repeat of the first. Most of the same witnesses returned, and the essential trial themes were unchanged—was this an evil, hate-filled narcissist, or an emotionally abused housewife driven to kill?

  But there were a few significant differences—nearly all of them to Jack Earley's disadvantage.

  First, Kerry Wells was in better command of both her own emotions and the facts this time around. Now she knew the chronology and minutiae of the Broderick divorce inside out. Never again would Betty be able to make a fool of her over what fine occurred when, which incident involved dogs versus puppies.

  And no more one-woman show. This time, Wells brought a partner to court, deputy district attorney Paul Burakoff. Thirty-something and prematurely gray, Burakoff was there strictly as window dressing, to convey to the jury—just as Larry Broderick had urged—that the State of California placed top priority on putting this dangerous killer away for life.

  In a third major difference, adding up to more bad news for Earley, Judge Thomas Whelan was clearly determined from the outset that this trial would be more strictly focused than the first on the killings than on the domestic disputes that led to them. In a pretrial hearing, Whelan warned that he might exclude certain "expert" defense testimony as irrelevant. "What was relevant last time may be irrelevant this time, and what was irrelevant last time may be relevant this time."

  Thus, this time, he ruled out any discussion of either Betty's abortions or Dan's drunk driving arrests, and he refused to admit into evidence Betty's Marriage Encounter letters, which had only recently been located. Dan's letters, however, were admitted again—over Wells's same objections.

  Whelan also once again denied Earley's request that he should be allowed to argue that Betty was a battered woman who had killed in self-defense. "I'm asking the court to find new definitions for self-defense," Earley said. No, said Whelan. It was up to the legislature to change the laws, not him—and no existing law permitted a self-defense argument when the victims had been shot in their bed.

  In another major difference, Betty Broderick now commanded such interest, coast-to-coast, that her second trial was televised live, all day, every day, by Courtroom Television, a relatively new national network, which divided its airtime between Betty and the rape trial of William Kennedy Smith. It was just one more ironic touch to this tale that Betty Broderick—who had spent years comparing the Broderick clan to the "drunken Irish, sexist Kennedys, who'll kill you if you cross them, just like Marilyn Monroe"—was now sharing their celebrated company before a potential six million viewers in forty-four states.

  This saturation coverage was a mixed blessing for the defense. On the plus side, due to the exposure, Jack Earley received a few sensational new tips from strangers who had tuned in. Three of them were people who said they had heard Dan Broderick discuss ways either to kill his wife or drive her crazy through legal harassment years earlier. A fourth was a local hotel manager who said Linda once told him that she had been sending Betty anonymous fat and wrinkle ads. Someone else also tipped Earley that he might find it worthwhile to subpoena Linda Kolkena's Delta employment record.

  On the downside, a few of the La Jolla ladies who had willingly testified for Betty in the first trial now backed out, after hearing with their own ears some of Betty's messages to her children—especially, her thirty-minute conversation with Danny.

  But, perhaps worst of all for Earley, all this new publicity also sparked a new flood of fan mail to Betty, which in turn only rendered her more aggressively unrepentant—and less docile—than ever before. At the most critical hour, all the media exposure that Earley himself had so actively promoted was exploding in his face. His client had become almost impossible to work with. Now, instead of merely nodding sweetly to his requests, she was flatly telling him what she would and would not do, what he could and could not say. She was a star. She was going to walk. Her public said so.

  And it only got worse. Before the trial was over, Betty would be sitting in the courtroom, oblivious to testimony, as she wrote angry letters of reproach to the producers of Courtroom TV, whose commentary was negative. In an equally bizarre, matching footnote, the program's reporters said that Larry Broderick, watching the trial from Denver this time, was calling their bosses in New York almost nightly to provide his own criticism of their commentary, which he found too favorable to "the murderess."

  Just in time for trial, too, the People magazine interview was published. In the last paragraph, Betty once again exonerated herself, but with more bald sanctimony than usual. "I have regrets, not remorse. I regret my husband had no character, that my children lost their mother, home, and stability. I didn't do the legal bullying. I wasn't the one who had the affair. I won't accept the blame for what happened." Wells later read the passage to the jury.

  Jury selection was the same grueling three-week process as before—the only difference being that the defense found the pool even more unfavorable than last year's. More minorities, more heavily blue-collar. Almost no educated, white, middle-aged divorcees for Kerry Wells to bounce.

  Worse yet, the new, aggressive Betty was interfering this time. In one skirmish, for example, Earley wanted to accept a jury panel that included an elderly man Pasas was convinced was "our second Walter Polk." But Betty refused because she didn't like one particular woman—a forty-year old divorced mother of two—who had also been seated.

  "She said, 'I will not go to court with this jury. I hate this jury,'" said Pasas. And so, against their better judgment, Earley and Pasas had let her force them into getting rid of the woman—which gave Wells an opportunity to get rid of the man.

  When jury selection was over, the sworn panel included seven men and five women, aged twenty to fifty-nine. Three were Hispanic, two were black, one was Italian born. Two were college students, two had graduated from college, two were retired Navy men, and four were currently employed by the U.S. Navy in capacities ranging from mechanic to supply officer. The panel also included a city surveyor, a pharmacy technician, and a sheet metal worker. Several of the jurors had either been divorced themselves or experienced divorces in their families, as well as alcoholism among friends and relatives. One juror had been acquitted on a burglary charge years before—thanks, he said, "to a good lawyer." He liked lawyers—a lot. Earley worried about him.

  None expressed strong views on profanity, but a few were avid gun collectors. The two youngest jurors, both women, aged twenty and twenty-one, were students: one in pre-nursing, the other in theater arts.

  All in all, it was a blue-jeans jury of lively personalities whose lives had not been picture-perfect. There were no prim preschool teachers like Eloise Duffield here—and, certainly, there were no courtly gentlemen in suits and ties, like Walter Polk, who had been married for forty years or more. Wells, a wiser woman now, had seen to that. In fact, in this jury selection, she was even keener on getting rid of elderly men than aggressively independent women.

  But, in the end, only two of the jurors would really count. One was George McAlister, forty-one, a Seventh Day Adventist with a master's degree in library administration, then working as a medical center librarian. The father of two children, married to a speech pathologist, McAlister was easily the most articulate of all the jurors in voir dire. And he became jury foreman. "Oh God," muttered Pasas, when she learned of his selection. "If he's for us, we're in great shape. If he's not, we're sunk, because his personality is strong enough that he's going to take the others with him—and no way is he going to let them out of that room this time without a verdict." She was right, too.

  The other was Vivian Lou Smith, fifty-nine. A Protestant Republican and a widow with several grandchildren, she was a high school graduate, recently
retired after twenty-five years as a switchboard operator for Lockheed. She lived in a condominium thirty miles north of San Diego, and was obviously something of a free spirit. Trim, dark-haired, and attractive, she sometimes came to court dressed like a proper grandmother, but other days showed up in skintight jeans. Smith smiled constantly at everybody—reporters, court-watchers, the defense team, the prosecution, and Betty. "She's driving me nuts," muttered Earley one day. "She smiles at me, and I think, 'Great, I've got her.' Then I turn around and she's smiling at Kerry, too. Goddamn."

  On her questionnaire, Smith said she liked walks on the beach, belonged to her neighborhood Crime Watch, visited her children often, and "hated unpleasant things." For that remark alone, Pasas wanted to bounce her off the panel, but then decided that maybe Smith was passive enough that she might not hurt the verdict either way. As it, turned out, Smith was the closest the defense would come to a victory.

  "We have the worst jury in the world," Earley later moaned into the phone to a fellow attorney, berating himself for letting Betty interfere with his own better judgment. "Nobody on that jury is going to relate to her when she starts talking about Danny's 'cherished spot' at Bishops, and her $16,000 a month. They're going to laugh!" Oh well, he finished, gathering himself. "What the hell—it's her trial."

  Like nearly everyone else in the country, Betty spent the weekend before her trial watching the Senate hearings on Anita Hill's charges that U.S. Supreme Court nominee Clarence Thomas had sexually harassed her.

  Unlike most, Betty related the historic event to herself. She believed Anita Hill, of course, she said over the phone, because she knew Clarence Thomas. "He's just like Dan Broderick, with his attitude that 'I won't descend into this, it's beneath me’.” She also related to Anita Hill, whose female critics "all called her a woman scorned, just like they try to say about me."

  In other national news, the case of Milwaukee serial killer and cannibal Jeffrey Dahmer was also on her mind. His bail had been set at some impossible figure—but, still, bail had been set.

  "I should've eaten them," she said with a manic giggle. "Then maybe they would've given me bail, too."

  Opening arguments were pretty much the same as before, although both Wells and Earley had sharpened their rhetoric. Wells referred now to Betty as "the executioner," Earley spoke of Dan as "a gladiator."

  Wells didn't focus any more on Linda than she had the year before. It was still, to her, a Betty and Dan story—and it was obvious from her opening remarks that she had decided to dive even deeper into the divorce trenches than before, rather than back off. She intended to expose every single lie Betty had ever told, large or small.

  She spoke at length, again, of Betty's privileges, her narcissism, and her deceptiveness. "There's a lot more to this woman," she said, than meets the eye. Betty Broderick "wanted nothing less than to keep on being Mrs. Daniel T. Broderick III." Wells played some tapes and, in her own moment of theater, strode about the courtroom, at one point holding Betty's gun in a two-handed grip.

  Earley was both more articulate and aggressive than he had been the year before. He spoke more specifically of Betty as a physically and emotionally battered woman. He stated flatly that she had been driven crazy by the time she drove over to Dan's house that night. The woman jurors saw sitting before them now, he said, was not the same woman she once was, either physically or mentally.

  This year, too, Earley was far more specific about events in the bedroom that night. He stated unequivocally that the victims had been awake, that Betty had been panicked into shooting when Dan had lunged for the phone to call the police. This time there was no question left, either, that Linda had shouted "Call the police."

  As for gimmicks, this year Earley opted for a family portrait, covered by Saran Wrap, which he dramatically shattered at one point in his argument, as he discussed how Dan had shattered the family itself with his philandering and lies. Later on, in his closing, he set up a metronome, which ticked loudly as he listed the escalating pressures that drove Betty to kill. ("I wish he would drop that drip drip drip shit," Betty later remarked.)

  Wells's witnesses were more relaxed and more aggressive the second time around. The touching nervousness that accompanies most first-time witnesses to the stand in a murder trial was gone. Helen Pickard, for example, had lost weight, grown her hair out, and was dressed with stylish flair. She was also so much more self-possessed that, at times, she became almost antagonistic toward Earley.

  For his own part, in what was perhaps his single worst verbal blunder of the entire trial, Jack Earley managed, during his cross-exam of Brian Forbes, to make it sound that it was he, Earley, and not Larry Broderick who had referred to the jurors as "lower-middle-class, less-than-average intelligence jurors." He didn't even notice his gaffe until it was pointed out to him later. "Oh, shit," was all he said.

  That this was going to be a down and dirty trial was clear from the first day. Already, for example, Earley was trying to keep Kim Broderick out of the courtroom on grounds that she was influencing the jury by sitting in the back row and crying sporadically all day. He failed.

  Among Wells's first witnesses was Dan Jaffe, who repeated his earlier testimony about the house sale and his advice to Betty. Earley barely challenged him. Instead, he used his cross-examination only to worm in the news that Dan's former attorney, Thomas Ashworth, now presiding judge of the San Diego domestic court, had not only just been arrested on his second drunk driving charge, but had also recently settled a lawsuit out of court for an alleged $1 million.

  Wells yelped an objection, too late. The jury heard.

  It only got more squalid. Once, for example, when Wells called housekeeper Robin Tu'ua back to the stand, Tu'ua, looking directly at a Hispanic juror seated nearest her, managed to blurt out that Betty had once told her she "was lower than a Mexican." Like Wells, Earley yelped, too late. The jury heard.

  For his part, Earley managed to blame Kim, on national television, for introducing her sister, Lee, to drugs in the first place. He also suggested that Dan himself may have had a drug problem, beyond alcohol.

  Wells, meantime, just kept punching the tape player, flooding the room with more and more nasty Betty tapes.

  In another truly macabre twist of Trial Two, on the opening day of the defense case, Jack Earley actually set up the death bed in the courtroom, within five feet of the jury box—complete with the actual sheets and coverlets upon which Dan and Linda Broderick had last lain. The white sheets were no longer red with blood, of course. Now the large stains had turned a muddy brown: the droplets of blood spray looked more like mold or insect droppings.

  It was astounding, watching Earley and an assistant rearranging the sheets just as they had been when the bodies were found. Then two life-sized mannequins were laid amid the sheets, pink, faceless things representing Dan and Linda.

  For the next hour, Earley marched a forensics expert around the bed. His object was to establish that Dan and Linda had been awake and in motion, based on the various distributions of blood pools and blood spray. The grisly testimony of the expert was too complex to follow—and hardly worth the shock value of showing those sheets to twelve jurors.

  Not least, Earley's tactic, which he obviously hadn't discussed with his client in advance, devastated Betty for the better part of the morning. The minute the bailiffs led her into the courtroom, before the jury arrived, she burst into hysterical sobs and had to be taken back to the holding tank. Trial was delayed for fifteen minutes until she had at least partially collected herself. She returned to court with swollen, streaming eyes, unable to look at anyone.

  Not until recess was it fully clear why she had broken down so badly.

  It wasn't the sight of the sheets, said Betty's sister-in-law Maggie—they were mostly out of her view anyway. It was the lovely, delicate blue-and white needlepoint coverlet at the foot of the bed that had so pierced her. It was a coverlet Betty had bought in Pennsylvania, in Amish country, during the earliest day
s of their marriage, said Maggie. Dan was still in school, and they really couldn't afford it. But Betty had thought it so beautiful that she had bought it for their bed anyway.

  Apart from the Broderick children, none suffered more from these killings than the aging parents of Dan, Linda, and Betty. Shortly after her son's death, Dan's mother had a stroke, followed by a fall that left her with a broken shoulder, arm, and pelvis. Linda's parents, both already in fragile health, fought with shock and anguish. "Our nonappearance at the trials was not a matter of disinterest," Dan's father wrote to Judge Whelan prior to sentencing, "but rather due to health problems." Atop his wife's critical physical problems, he said, "We both suffer mental depression from which there seems no surcease … We are in our seventies, and this crime has shattered any hopes we had for peace and contentment through our declining years."

  Betty's parents were equally devastated. Not until her second trial did Frank and Marita Bisceglia collect themselves enough to come to San Diego to sit through a week of testimony. They were a touching sight as they arrived each morning at 8:30 to take their place on the narrow wooden bench outside Whelan's courtroom, where they waited for trial to begin. They walked slowly, these two upstanding old people who had led such exemplary lives, clinging to each other and usually holding hands. She was taller, a large-boned woman, in her late seventies, dressed now for comfort, not style, in baggy clothes and soft suede flats or tennis shoes; he was smaller, neatly dressed each day in a camel-hair jacket and tie, his blue eyes alert to the audience around him. She avoided eye contact with strangers. The shame was still very great for Marita Bisceglia.