Hung Jury: Broderick Case Ends in Mistrial

By Alan Abrahamson

Nov. 21, 1990 12 AM PT

Times Staff Writer

SAN DIEGO — With two jurors seeking a manslaughter conviction and 10 pressing for murder, the trial of La Jolla socialite Elisabeth Anne (Betty) Broderick, accused of killing her ex-husband and his new wife, ended abruptly Tuesday with a hung jury and no verdict.

San Diego Superior Court Judge Thomas J. Whelan declared a mistrial when the panel reported Tuesday afternoon, after four days of deliberations, that it could not decide between murder and manslaughter. The deadlock means that the case resulted--like five other high-profile San Diego trials in recent years--in indecision.

Betty Broderick smiled briefly as the judge declared the mistrial.

In court, jurors did not disclose the details of the deadlock. But one juror who asked not to be identified said Tuesday night that two of the people on the panel were seeking a manslaughter conviction, while 10 others pressed for murder.

The voting started off at 7 to 5 in favor of murder, said juror Michael A. (Mickey) Byrd, 39, of Rancho Bernardo, an industrial project manager.

By Monday, the count had reached 10 to 2, he said, and the panel stuck there. The sticking point, Byrd said, was over the issue of “malice,” or whether Betty Broderick had the premeditated intent to kill.

By Tuesday, said Byrd, who supported a murder conviction, “all agreed that we had reached a point of no return, basically.”

The prosecutor in the case, Deputy Dist. Atty. Kerry Wells, said she was “very disappointed” and that Betty Broderick is likely to go to trial again in the Nov. 5, 1989, killings of her ex-husband, Daniel T. Broderick III, and his second wife, Linda Kolkena Broderick.

A new trial date is to be set next Tuesday. San Diego County Dist. Atty. Edwin Miller said Tuesday night that he and Wells will decide in the next few days whether to go forward with a second trial.

Betty Broderick’s daughter, Kim Broderick, 20, a sophomore at the University of Arizona who testified against her mother at the trial, said she was “frustrated and mad.” She added: “I just wanted this to be behind us.”

Defense attorney Jack Earley said the hung jury was “not a real surprise” and added that he plans now to ask that Betty Broderick be freed on bail. He also said he is amenable to plea bargaining.

In the meantime, Earley said, “This has been a vindication that Betty Broderick is not what she has been pictured to be.”

Saying Betty Broderick had been successful at the trial in persuading at least some jurors that she had been a victim, too, and contending that she was guilty at most of manslaughter, Earley said it was “obvious” that jurors “saw some of the things she saw and felt some of the things she felt.”

Betty Broderick declined to comment, saying: “I’m still in custody. I’m not supposed to talk.”

Betty Broderick, 43, was charged with two counts of first-degree murder in the shooting deaths of her ex-husband and his second wife. She has been held without bail at the Las Colinas Jail in Santee since she surrendered to police only hours after the killings.

Daniel Broderick, who was 44, was a prominent medical malpractice attorney and a former president of the San Diego County Bar Assn. Linda Kolkena Broderick, who was 28, was his office assistant.

After 16 years of marriage, Daniel and Betty Broderick separated. During and after a bitter divorce, Betty Broderick accused him of using his legal influence to cheat her out of her fair share of his seven-figure annual income.

Betty Broderick admits firing the shots that killed her ex-husband and his second wife.

Testifying in her own defense, she contended at the trial that she did not have the premeditation the law requires for first-degree murder because she intended only to confront him and to kill herself last Nov. 5, when she stole into his house before dawn.

Prosecutor Wells contends that Betty Broderick fully intended the killings and executed her ex-husband and his new wife after years of rising rage that stemmed from the divorce.

Jurors had five options in the case--first- and second-degree murder, voluntary and involuntary manslaughter, and not guilty on any charges.

First-degree murder means the murder was premeditated--or considered beforehand--while second-degree lacks that deliberation.

Voluntary manslaughter means a killing was committed after a sudden provocation. Involuntary manslaughter describes a killing that occurs while doing something else without due caution.

After passing a note saying that the jury was “unable to reach a unanimous decision,” foreman Lucinda L. Swann, 26, of San Diego, a county air pollution inspector, told Whelan in court Tuesday that the panel could not decide whether the case was about murder or manslaughter.

Whelan sent the panel back for more talks but, 29 minutes later, the jury returned, saying that it was unable to break the deadlock and that further talks were unlikely to help.

Swann said that the panel took “three or four” votes but, after conferring with others on the jury, said the others “seem to feel it was more than half a dozen.”

Whelan then declared a mistrial, telling the panel it was “a shame that you can’t have a final resolution, but that’s the way things sometimes end up.”

In interviews later Tuesday, jurors declined to explain whether the 10 who favored murder believed it was first- or second-degree. Similarly, jurors did not say whether the two urging a lesser charge sought voluntary or involuntary manslaughter.

Wells said the outcome was “hugely frustrating.”

“Well, obviously there were a lot of emotional issues in this case, a lot of opinions going both ways,” she said. “Finding 12 people who were going to agree was going to be difficult.”

Wells also said she did not know what she would do differently in a second trial because she wanted to talk to jurors to find out what worked and what didn’t the first time around. She said she would rethink tactical decisions she made, like not asking Betty Broderick on cross-examination about the act of the killings.

“Obviously I’ll be open to thinking about lots of different things,” she said.

Earley said a second trial would be burdensome.

With no income and limited assets, Betty Broderick might not be able to afford a second trial, Earley said. Still, he said, “I will be there. She wants me as her attorney and I like her as a client.”

Tactically, he said, the difficulty for the defense the second time around is that prosecutors know the strengths and weaknesses of the defense case. “It’s just distressing to know you’re at square one again,” he said.

In recent years, five other high-profile San Diego criminal trials have resulted in a hung jury on some or all charges--among them the cases against Roger Hedgecock, Sagon Penn, Craig Peyer and Richard T. Silberman. In the case of Nancy Hoover Hunter, the jury was hung on the vast majority of charges.

Like their cases, Earley said, the frustration is in realizing that a lengthy trial has not yet yielded closure in Betty Broderick’s case.

“It seems like it’s been going on forever,” he said.

Times staff writer Michael Granberry contributed to this story.