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

by Bella Stumbo

  When Earley rose, the entire audience rustled audibly, shifting back, settling in for the long haul.

  With his metronome ticking, dramatically, he argued again that it was the accumulation of psychological abuse that had led Betty to snap. He paused, allowing the jury to listen to the tick-tock of his clock for a few seconds. "It goes on and on … the sound is enough to drive you crazy after you hear it over and over again …"

  Betty's crime was committed in the heat of passion—it was not premeditated, he said. By the night of November 5, 1989, she was "so far gone" that she was incapable of premeditating anything. She was reacting only to the pressures. Then, coming as close to feminist oratory as he ever had—in fact, copying Betty's own language—Earley told the jury that Betty Broderick was being held to an age-old, sexist double standard. Any man who had been similarly stripped of his job, his children, his dreams, and his ambitions would probably have reacted even more strongly than Betty had, and sooner. But the legal system would have treated him with far more leniency. What man, for example, would have been jailed for dirty language alone?

  Earley also argued that Dan had never been afraid of Betty, that the drama he made over her loose remarks and threats to kill him was strictly for show to protect his own image, to exonerate himself, just as Betty had always said. Otherwise, asked Earley, rising to his booming best, why was it that Dan Broderick, a multimillionaire, had made such a big show out of hiring security guards for his wedding, but failed to invest a few hundred dollars in an alarm system that would have instantly alerted him to any intruder creeping up his stairs on the morning of November 5?

  Because, thundered Earley, answering himself, "He wanted to announce, ‘World! I have a crazy wife!' And a security system doesn't stand on a corner and wear a badge. The world doesn't see that!"

  In conclusion, he asked the jury for a verdict of voluntary manslaughter. This time, Jack Earley was unequivocal. Betty's crimes had been provoked in a heat of passion, after years of torment. "She was so far gone by then," he said quietly, in a tone of real pity. She deserved compassion, not condemnation. She deserved manslaughter—not a life condemned to prison without possibility of parole.

  The hokey metronome aside, Earley was very good. Later, in the first and last compliment she would ever accord him—and despite her fulminations beforehand—even Betty agreed.

  The jury went out on Thursday afternoon, December 5. Like the first jury, they were not sequestered, and they would also remain out for four days.

  Earley was both morose and melancholy at lunch that first day.

  "I'm gonna lose, huh?" he asked everyone at the table. Nobody answered. Pasas checked out her newly refurbished nails. Dian Black changed the subject. Earley sighed. He needed to go over to the jail to talk to Betty, he said. But he was afraid to. She was going to yell at him, he said, for asking the jury to convict her of anything.

  So he didn't go until the next day. By which time, his mood was better. It was Friday. Once again, the jury hadn't humiliated him by returning with a verdict in two hours.

  Chapter 41

  Whelan’s Bar

  It was midafternoon on Tuesday when the jury returned. Some looked upset, but nobody was crying.

  They found Elisabeth Anne Broderick guilty of two counts of murder in the second degree.

  Wells listened grim-faced, jaw muscles working. Earley bowed his head; Marion Pasas put her arm around Betty.

  But Betty needed no comforting—at least not then. Not publicly. Never in public. Instead, she patted Earley's hand and smiled at the jurors as they were individually polled. She might have just been told that she had lost a class election.

  "When they said 'second,' she turned to me and whispered, 'How many years is that?'" Pasas recalled later.

  In the back of the packed courtroom, Kim cried, and Larry Broderick hissed "Jesus Christ" loud enough to draw attention. Lee was not there. Whelan set sentencing for February 7.

  Two years and two trials later, it was over.

  Wells hid her disappointment well. Even if she hadn't won her first-degree convictions, she hadn't entirely lost either. At least she had crossed the line from manslaughter to murder. This time she didn't appear anywhere near tears.

  "I believe that she did premeditate these murders," she calmly told the swarm of reporters in the corridor. "But jurors are obligated to give a defendant a reasonable doubt, and they did on that issue."

  Best of all, she had at least gotten a verdict. The nightmare of another hung jury had evaporated. Relief set in fast. According to a Tribune reporter, as she strode out of the courthouse afterwards, she raised a clenched fist and, beaming, said, "Thank you, God. Thank you, God."

  But, again, nobody was any happier on verdict day than Jack Earley. He emerged from the courtroom, solemn-faced but with a bounce to his step, a gleam in his eye. He promptly vowed again to appeal the verdict, based on evidence Whelan had excluded, but he also pronounced the second-degree verdict a victory for Betty. It was, in effect, another hung jury—a compromise. What's more, he said, if the defense hadn't been so fettered, he was certain the verdict would have been manslaughter.

  When one reporter snidely asked why Betty had smiled when the verdict was read, in a rare display of impatience with the press, Earley snapped. Part of what this case was all about, he said sharply, was Betty Broderick's infinite capacity to put on a happy face, regardless of her interior misery. "Betty was a social people-pleaser. Even in the worst of circumstances, she will smile. Her kids ask her about prison, and she tells them she will go to a happy little trailer, so they are not worried."

  Twenty minutes later, out of sight of the TV cameras, Earley was, as in the year before, beside himself with delight. He had won. With all her advantages, Wells had once again failed to score her first-degree convictions. "I wanted to tell those cameras, 'I'm thrilled!'." But, it was more than professional satisfaction. Jack Earley also seemed genuinely relieved for Betty. From the beginning, his idea of victory had always been two second-degrees. Now, at least, Betty was saved from life in prison without possibility of parole. Not that the alternative was much better, he added. For a few seconds, sadness softened his matter-of-fact face. At minimum, second-degree murder meant a fifteen-year sentence, per count. In the best of all worlds, Whelan could sentence her to concurrent terms—meaning she would be eligible for parole in nine years. But Earley was under no illusions about Whelan's frame of mind. This judge would not be lenient: Whelan would instead slap Betty with the maximum—consecutive sentences, totaling thirty years. She would not be eligible for parole for nineteen years—or the year 2010. She would then be sixty-three.

  "Poor Betty," he said quietly, glancing away. "Maybe she'll cry her heart out tonight. But she's really out in left field. I don't think she realizes yet what's really going on." That she was facing anywhere from nineteen years to life in prison. A long, long time.

  Then, in the next breath, with a wry smile, Earley's moment of sorrow had flown. "Still, that's more than Dan and Linda got," he said. Criminal defense attorneys are a fascinating, inscrutable breed.

  The Broderick camp convened at Reidy O'Neil's to mourn the verdict over Irish ales, in the melancholy gloom of the plush green room filled with photographs and drawings of Dan Broderick. Bittersweet Irish ballads played softly in the background.

  Larry Broderick's frustration was total as he raged to reporters about "the monster" who had just escaped full justice for killing his brother. "I'm outraged that the jury did not convict this woman of the crimes that she committed," he said bitterly. "What's the matter with a system that allows this woman to threaten these people dozens of times, buy a gun, take shooting lessons, blow them away in their sleep—and that's not murder one in this goddamn country?"

  From Portland, Linda's sister was more benign. The Kolkena family was just glad it was finally over, said Maggie Seats. Whether it was a verdict of first-degree or second-degree didn't really matter that much to them. It wouldn't bring
Linda back.

  Betty had no family members in court that day, but, from Nashville, her brother Frank told reporters that he had hoped for a manslaughter verdict, "but I'm not living in Never Never Land." For the moment, he was more worried about his parents than Betty. Their hopes dashed, the elderly Bisceglias had retreated behind closed doors to grapple with the latest reality to shatter their golden years: Their daughter was now a convicted murderess.

  But the main attraction of the day was the jurors. Five had remained to speak with reporters. Foreman George McAlister did most of the talking.

  It had been a painful emotional experience for them all, he said, and it was clear from the outset that another hung jury was very possible. Several jurors, himself included, had leaned toward first-degree murder, but at least two were in favor of voluntary manslaughter—and one of those had vowed that she would never vote for first-degree murder. She would hang the jury first.

  And so, they had been obliged either to compromise or return no verdict at all. At times, said McAlister, discussions deteriorated into an emotional brawl.

  As with the first jury, the debate had centered on the issues of malice and premeditation—or, Betty's state of mind. "And there was so much aberrant behavior on Betty Broderick's part, not acting as a reasonable person would act. Her perceptions of the world seemed somehow different than what a normal person would perceive …" But since no insanity defense had been raised, McAlister said, jurors simply did the best they could with the legal instructions they were given.

  Several jurors were convinced, based on Betty's testimony, he said, that she wasn't stable enough at that point to premeditate anything. Which ruled out first-degree. That left only second-degree as a viable compromise. McAlister had then gone around the table, he said, and asked everyone if they could live with "murder two." But, up until the last hour, "a couple of people" still wanted to think it over one last time during lunch hour. In the jury's final act before lunch, he said, they had listened one more time to Betty's conversation with Danny in 1987.

  After lunch, he said, "We all held hands," and the holdouts had joined with the rest in agreeing to second-degree murders.

  Other jurors who spoke to the media were shy, vague, and generally imprecise. "People were crying … yelling," said one man, who thought it was first-degree. "It was quite a load for a simple person like me," said a middle-aged machinist, but "[McAlister] was great. Without him, we wouldn't have come to a decision … he got us to agree."

  So in the end, just as Earley and Pasas had feared, one strong juror had shepherded his flock to a definitive vote.

  Ironically, McAlister's main roadblock to consensus was Vivian Smith, the heart-faced grandmother who, like Betty Broderick herself, always had a sunny courtroom smile for everyone. Albert Vargas, the thirty-seven year-old Naval security assistant who had once been charged with burglary, had initially sided with Smith, although without the same passion. In the end, it was Smith alone who threatened to hang the jury until an hour before the final vote.

  But Smith, the oldest member of the jury, was no Walter Polk. She rolled over. If it was Vivian Smith who saved Betty from a first-degree murder conviction, it was also Smith who finally handed Wells her second-degree murders. It was Vivian Smith who spared Kerry Wells another crushing defeat, and denied Jack Earley another overwhelming victory.

  Even her voice sounds remarkably like Betty's. Chipper, bright, suggestive of a woman who lets very little in life get her down. Nor was she later agonizing over her capitulation after the verdict. But her views on the case remained strong.

  "Dan wanted her put away as crazy so he could run around with that little twig tail," she said, disgusted. "He threw her out like a piece of garbage. She didn't deserve that. She put him through school. If he'd have given her the children and the money, it wouldn't have happened. But he was so powerful. Nobody could come up against what he had …"

  Smith also disapproved of Kim's role in the trial. "I know Kim loves her mother. But she should have stayed out of it, like the other daughter did. I think Lee is the smartest one, staying out of the media and all of it … My daughter told me just the other day, 'I could never testify against you, no matter what you did!' I think Kim is going to regret this, the way she hurt her mother. I feel sorry for her."

  As for the attorneys: "Kerry Wells was cold as ice and very calculating. But she is a very smart, articulate woman … she convinced jurors that she knew what she was talking about."

  Earley, by contrast, "was pretty good … but," Smith added delicately, "he rambled. Sometimes you didn't know what he was talking about." On the other hand, she added, determined to be fair, "He was also very limited. We could all see that. And when I found out later what we didn't get to know—that Dan was planning to do her in! And he would've gotten away with it!"

  But what shocked her nearly as much as the hitman scheme itself was the fact that Earley hadn't prepared Betty to say she knew about it so that the evidence could be admitted. "I don't know why Betty didn't just lie about it!" she said, laughing nervously at her own lawless thoughts. Even sweet grandmothers like Vivian Smith obviously get savvy fast, sitting as jurors in first-degree murder trials.

  Smith said she believed every word of Betty's testimony. "And I don't feel she's a menace to society. It's ridiculous. She's so sweet. I think she just temporarily lost it. He flipped her out. He killed her first, her spirit—that's how I feel. I began to see how Dan and Linda had victimized her. It's like teasing an animal until it runs after you."

  But Smith finally decided to abandon her voluntary manslaughter stance because, she said, she could see jurors defecting to first-degree by the hour. "Several thought Betty was lying about the whole thing … So I thought, 'My God, this is getting worse than I expected.' I felt I was doing Betty a favor by going for second." Although jurors are instructed to disregard the penalty phase of the trial, Smith also admitted that she couldn't take her mind off the fact that first-degree meant life without parole. "I wanted to save her from that. I would have just cried my eyes out to see her ever get first-degree!"

  Smith thought the Danny tape had hurt Betty more than any other single piece of evidence in trial—it turned several jurors against her permanently. "It was very, very damaging—I think that if Betty could have just said she was sorry, it would have helped her out," said Smith. "I mean, I know how she felt. If I'd been badgered that way, I'd probably have killed him even sooner—but she needed to show more remorse."

  Toward the end, Smith said she was taking terrible heat in the jury room. "For four days, they yelled their heads off at me. But I just didn't believe Betty went in with malice. I thought she went to get their attention and maybe kill herself … I mean, I've been around the corner a little bit. I know what pain feels like. As a woman, you have to bear a lot of things or you're lost from the beginning. But all those young women on the jury—they were just kids, they didn't have enough life experience to know anything." Then, when Vargas defected to second-degree, she finally stood all alone in that last hour. And so she folded.

  But, to the later dismay of Jack Earley, who initially entertained hopes of a mistrial based on undue pressure on a juror, Smith insisted, firmly, that she wasn't browbeaten into changing her vote. "I don't want to imply that I was badgered—I think I did the best thing for Betty. If I could have been sure there wouldn't have been another trial, I think I would've just stayed [on manslaughter], but …"

  Besides, as Vivian Smith saw it during the weeks after the verdict—and prior to the sentencing—second-degree wasn't really all that bad. "She'll probably get maybe seven years, less three for time served. She should be out in four or five years, don't you think?"

  Vivian Smith had no idea that the maximum sentence Betty Broderick could receive was thirty-two years to life. "No!" she gasped. "Oh God! I just can't believe Judge Whelan would do that! He seems so kind! I thought he was just wonderful … I'm sure he'll be lenient. If I had thought she would get more than a
few years," Smith added, "I would definitely have hung in. But, no—I just don't believe that Judge Whelan will make her serve more than five or six years."

  Betty called that night, laughing happily. "Can you believe the scoop—they never even considered first-degree!"

  She seemed not to grasp that nothing had been won, in terms of the rest of her life. It wasn't real to her, any more than it was to Vivian Smith. She reveled in the courtroom reaction to her conviction. Rosie, the clerk, "almost cried," she said. The bailiffs almost cried. "They all love me." And all the girls in jail cried for her. "They were sobbing! And I was saying, 'Guys, it's gonna be okay.'" Always, always, poor starved Betty clung to affection, wherever she thought she saw it, blinding herself to all else.

  She only laughed at her own courtroom composure, like an actress on stage. "Oh, I knew I would do that all along. Betty Broderick doesn't break down in front of people," she said proudly. Not anymore, at least. Never again.

  Then, as she so often does, she abruptly switched personalities. Within the space of five seconds, she was a different woman. This Betty was introspective, tentative, almost shy. Even her rat-a-tat-tat speech slowed to normal.

  "You know I'm not brave," she said quietly. "But I've got this thing, I grew up with it. We all did in my family—you don't shame yourself by crying in public. You could cry for joy, but never for pain. I remember once when I was just a little kid, about eight years old, this aunt of mine died—Aunt Vi. I really loved Aunt Vi. And after the funeral, my mother had this wake at the house. It was supposed to be a celebration. No tears. No big shows of sadness. I remember crawling into this little closet we had under the kitchen stairs and crying by myself, because you couldn't cry in front of anybody at my mother's party. It would have been too unpleasant. So I guess I'm still that way," she said, with another of her self-conscious, dismissive little laughs. "It's still me and Aunt Vi, hiding under the stairs. . . .