Courtroom Indecision Is Familiar

With a hung jury and without a verdict, the double-murder trial of La Jolla socialite Elisabeth Anne (Betty) Broderick leaves an emptiness that’s hard to describe, one of the jurors in the case said.

“I’m disappointed it ended the way it did,� with two jurors seeking a manslaughter conviction and 10 urging a finding of murder in the killings of Broderick’s ex-husband and his second wife, said juror Michael A. (Mickey) Byrd, a 39-year-old Rancho Bernardo resident. He spoke late Tuesday, hours after a mistrial was declared in the case.

“You end up with this sense of uselessness,� said Byrd, an industrial project manager. “It’s totally frustrating to spend that much time and accomplish nothing. I’m glad it’s over, but it’s not an elation type thing at all. It’s kind of a miserable feeling.�

That feeling is a familiar one in recent years in San Diego. The deadlock in the Broderick case means that it--like five of the city’s most high-interest, high-intensity, high-profile criminal cases over the past five years--has resulted in a jury hung on some or all of the counts.

Such indecision may be signaling the cultural evolution of a city, experts in law, psychology, sociology, public policy and San Diego lore said Wednesday.

San Diego’s growth, no longer built primarily around the relative homogeneity of the Navy, has attracted different people from different cultures who, when picked for jury duty, bring different values to an emotionally intense drama playing out in court, the experts said.

Over time, a succession of split verdicts marks the loss of a single overriding value and the emergence of the community’s varied values, they said.

“We’re seeing juries that reflect the diversity of a San Diego that is very different from the San Diego that the leadership in the community thinks exists--in every way you can think of,� said former Mayor Roger Hedgecock, one of whose two 1985 trials on campaign financing irregularities ended in a hung jury.

“This community now has a diversity in political thinking, moral thinking, language and culture that rivals or exceeds every city on the face of the earth,� said Hedgecock, now a San Diego radio talk-show host who was convicted in a second trial, brought a series of appeals and, just last week, ended his case with a negotiated settlement.

“Therefore, when a situation of law is presented in the strict ritual of a courtroom, I’m sure there are jurors who simply do not relate to the assumptions behind that ritual or to the manner of communicating the facts that they’re supposed to weigh,� he said.

In Hedgecock’s case, a public figure fell from grace. Betty Broderick’s case involved the most basic of human impulses--including rage, jealousy and abandonment--that led to two admitted killings.

She was charged with two counts of first-degree murder in the Nov. 5, 1989, slayings of her ex-husband, Daniel T. Broderick III, and his new wife, Linda Kolkena Broderick.

Daniel Broderick, who was 44, was a prominent medical malpractice attorney and 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 in 1985. During and after a bitter divorce, which ended in 1989, she claimed that he used his legal influence to cheat her out of her fair share of his seven-figure annual income.

At the trial, Broderick admitted that she fired the fatal shots. She said she did not have the intent to kill anyone but herself when she stole into Daniel Broderick’s house in the early-morning hours, then crept into the bedroom where he lay in bed with his new wife. She said she fired only after seeing movement in the bed.

Prosecutors contend Broderick fully intended the killings and executed them after years of rising rage stemming from the divorce.

The trial began with opening statements Oct. 22. The jury got the case last Thursday and, on Tuesday, announced its deadlock, prompting San Diego Superior Court Judge Thomas J. Whelan to declare a mistrial.

Like the Broderick case--and Hedgecock’s--the four other high-profile San Diego cases that have resulted in deadlocks have focused a spotlight on emotionally charged issues that call upon jurors to measure using their own values and experiences, the experts said.

With Sagon Penn it was racial tension. With Craig Peyer it was police wrongdoing. With Nancy Hoover Hunter it was scandalous wealth. With Richard T. Silberman it was drugs.

“The greater the intensity of the core emotional issue of the case, the less likely 12 strangers will be likely to agree on the eventual disposition of it,� said Paul J. Pfingst. He was the prosecutor in one of the two trials of Peyer, a California Highway Patrol officer convicted of killing a 20-year-old college student in 1986 while on duty.

“In (the Broderick) case, as in the others, there were very emotional core issues, and that would influence different people in different ways, depending on their backgrounds,� said Pfingst, who now practices civil law in San Diego.

Hedgecock, Peyer, Penn, Hunter, Silberman and Broderick--each case drew intense media attention. But the same issues that capture the public’s attention tend to create problems for juries, Pfingst said.

The press attention can make a holdout juror or jurors less willing to change, he said. “It’s difficult for jurors not to be conscious of the fact that the front rows of the courtroom are filled with reporters,� who may seem anxious to chronicle the panel’s decision, he said.

Rita Simon, a professor of sociology at American University in Washington and the author of three books on juries, said media attention makes jurors “keenly aware of the fact that they want to do it right.�

Research shows that jurors “talk about that (press attention) very frequently in the jury room,� Simon said. “Everybody’s watching. They know it,� and the publicity makes them “even more concerned to do it right, more concerned that they have performed their role in the most honorable way.�

The system produces a hung jury in roughly one case in six, according to a landmark study done 25 years ago at the University of Chicago, said Simon, who worked on the study.

When a jury hangs, “they hang because there’s a legitimacy to doing so,� publicity and all, Simon said. “Jurors will say, ‘It would be better to hang than to coerce you or you or you into a vote you did not feel was consistent with your principles.’ �

Most juries reach a deadlock when at least two--and usually more--of the jurors resist pressure from the others, said John B. McConahay, a professor of public policy at Duke University who frequently serves as a jury consultant. The Broderick case, for instance, was split 10 to 2.

Typically, one strong person brings along another or a couple of others “who stay under the spell of that person,� McConahay said.

There are exceptions--the Silberman case, for example, where a lone holdout favored acquittal on the central counts--but one juror typically does not have the strength of personality to hold off 11 others, McConahay said.

Psychological studies in conformity show that people will believe other people’s perceptions if conveyed with enough ardor, even when objective evidence shows that the original belief was correct, McConahay said.

Studies show, for instance, that people believe a line on paper is one length because that’s what a convincing person tells them, even if they have actually measured it themselves and found it a different length, he said.

Since a trial “comes down to the credibility of who’s telling you what,� one “strong person in (the jury room) who can take a few others with them, based on what information they believe is credible or non-credible, can end you up with a hung jury,� he said.

“By the way, I think that’s the way the system ought to work,� he said.

A hung jury “is not necessarily a bad thing,� said Robert J. MacCoun, a jury expert and behavioral scientist at RAND Corp. in Santa Monica. “We certainly don’t want to disparage jurors who don’t want to agree with the majority. If they feel they can’t agree, they shouldn’t agree. That’s the system.�

But the system can be frustrating, said Byrd, the juror in the Broderick case. He said he is troubled by the notion “that I, as a juror, failed to bring justice.�

Liz Semel, a San Diego defense attorney and president of the California Attorneys for Criminal Justice, a defense bar group, said that feeling simply shows the system at work. “Sometimes, this is justice,� she said.

“Sometimes this is the conscience of the community saying, ‘This is not a situation that can be easily resolved in a single voice. The truth is in the middle,’ � Semel said.

“In turbulent times, people’s sense of justice is, well, they don’t speak in one voice,� Semel said. “But there’s something even in the hung juries; there was a message that came across in all of those cases, in Penn, in Broderick. A substantial number of people just do not see these cases, anymore, in black and white.�