The Fitzhugh case


Kenneth and Kristine Fitzhugh


Fitzhugh takes the stand

Published Wednesday, July 25, 2001

BY JUNE BELL
DAILY NEWS CORRESPONDENT

Murder defendant Kenneth Fitzhugh told jurors -- and a packed courtroom -- that he didn't know until he was behind bars that his older son was fathered by his former best friend, a man he knew was gay.

"I was in disbelief and I was devastated at the same time," Fitzhugh said of the DNA test results. "... I really didn't know what to think. I went back to my cell and I was quiet for a long time trying to think of anything that made sense."

In an even voice, Fitzhugh explained that he never suspected that his wife, Kristine, had been romantically involved with their best friend, Robert Brown, more than two decades ago.

But after another DNA test confirmed the results of the first test, Fitzhugh said he realized that Justin, 23, owed his size and intellect to his biological father, a brilliant businessman and attorney "before drugs got him," Fitzhugh said.

About 100 people massed outside the Palo Alto courtroom yesterday hoping to be admitted to hear Fitzhugh testify in his own defense. It was the largest crowd since the trial began July 2. About a third of the prospective spectators were admitted to the small courtroom, which was crowded with reporters, sketch artists and both Fitzhugh sons, Justin and John, 21.

Fitzhugh, who has sat silently between his attorneys for three weeks, took the stand at 2:45 p.m. He testified for 75 minutes. Facing the jury, he calmly described his career as a self-employed real estate consultant, how he met his wife and his actions on the morning of May 5, 2000, the day that Kristine Fitzhugh was murdered in their $2 million Palo Alto home. He returns to the stand today to testify about what he saw when he entered the house that afternoon.

Fitzhugh, 57, faces a life sentence if convicted of killing his wife, a Palo Alto traveling music teacher. Santa Clara County Deputy District Attorney Michael Fletcher has said Fitzhugh wanted her dead so she would never tell Justin about his biological father.

Experts called by the prosecution have testified that her death was staged to look like an accident. Kristine Fitzhugh was bludgeoned repeatedly and strangled in the kitchen, they said. Nearly all of the blood there was cleaned up and her body was arranged on the basement stairs to make it appear that she'd died in a fall.



Intruder theory

Defense attorney Thomas Nolan has said that Kristine Fitzhugh was killed in the basement by an intruder who was never arrested. Police quickly decided his client committed the crime and ignored evidence that suggested otherwise, he said, including the fact that Fitzhugh would have no reason to want his wife of 33 years dead.

Fitzhugh told the jury yesterday that after the murder, he discovered that a hatchet was among the items missing from the home.

Before Fitzhugh began his testimony, Justice Franklin D. Elia asked him if understood that he had the right not to take the stand. By testifying, he could become a witness against himself in cross-examination, the judge said.

Fitzhugh said he understood.

"You wish to do that? So be it," Elia said.

Fitzhugh faced the jury and directed all his testimony in their direction. His white hair was neatly combed, and he wore a navy suit and tie. Behind him was an enlarged rough sketch of his basement, a stick figure on the stairs representing his wife's body.

Fitzhugh told the jury he was an only child who grew up in the small town of Del Mar. His childhood was "fairly normal." He earned an electrical engineering degree from Cal Poly in San Luis Obispo and an MBA from Stanford in 1966. He always had "a substantial interest in music," played piano and was president of his college band, he said.

He met Kristine in 1964 at the San Diego County Fair. She was 16, a freshman at California Lutheran College, and he was 20, finishing up college. Kristine and her father approached him as he was playing the pipe organ. She asked, "Why don't you play more Bach?"

"Which I thought was a great opening line," Fitzhugh said, smiling.

Both music lovers, they married two years later at the La Jolla Lutheran Church. Twelve years later, Justin was born, he said.

While in San Diego, the couple became friendly with Brown, who was "probably the brother I never had and the brother Kristine never had," Fitzhugh said. Both were only children.

He had no reason to imagine that his wife was romantically involved with Brown, though.

"The primary reason I never suspected an affair was because Bob led a gay lifestyle," Fitzhugh said, and regularly expressed disdain for women. "He always had a live-in lover. Bob was not effeminate, but his live-in lover was effeminate."

Brown once made a pass at Fitzhugh, who said he rebuffed the advance by telling him, "I accept your lifestyle but don't want to be a part of it."

Though Brown had given Kristine Fitzhugh a diamond ring that she regularly wore on her left ring finger, that didn't arouse suspicions in her husband. Brown had also given him "a fabulous gift" one Christmas -- a large expensive antique reed organ.

Fitzhugh said an attorney with Nolan's law firm paid him a visit last fall while he was in the Santa Clara County jail awaiting trial to tell him that the prosecution wanted a DNA test to see if Justin Fitzhugh was Brown's son.

"My immediate reaction -- I had two immediate reactions -- was, what is Brown up to now? And second, Justin is scared to death of needles -- the poor guy having to give blood." He smiled wryly.

When his older son visited him in jail, Fitzhugh said he encouraged him to be tested. The idea that Justin Fitzhugh was anyone else's son "hadn't even occurred to me." But even if it somehow were true, he assured the young man, "you are still my son."

The results, which he received early this year, confirmed that Brown was Justin's biological father. Fitzhugh told his son that it meant only that Justin had "a predisposition to drug abuse, which you have so far escaped."

Brown has testified that he had a drug addiction and that the Fitzhughs spent thousands of dollars to obtain treatment for him. He had also denied that he was gay, insisting he is bisexual.

Nolan on Monday called two character witnesses who testified that Brown regularly lied, and the defense attorney contends that Brown lied about receiving a phone call from Kristine Fitzhugh in late 1999 or early 2000.

Brown, a disbarred attorney and convicted felon who lives in Placerville, had said that his former lover called him to invite him to Justin Fitzhugh's graduation from the University of the Pacific in Stockton. She also said that after his mid-May graduation, she'd tell her older son that Brown was his father, Brown said.

Fitzhugh recounted his activities on the day of his wife's death. His testimony varied little from the statements he'd given to police on that day.



Helped neighbors

He testified that he and his wife arose at 6 a.m., read the newspapers and took their two dogs, Boots and Reina, for a run before showering. Kristine Fitzhugh left to teach a class around 10 a.m. He helped the neighbors with a printer problem before heading to the San Bruno area around 11 a.m. to examine a piece of property for a potential client.

After their run, he said yesterday, he took off his tennis shoes and put them by the front door. He did not say why he did that, and Nolan did not ask him to explain.

The shoes were found in his Suburban flecked with his wife's blood. Questioned by police on the day of the murder, he said the blood could have come from a hand injury his wife received while gardening. He said he did not know how the shoes came to rest on the floor of the driver's seat.

Nolan is hoping to introduce evidence obtained while Fitzhugh was hypnotized, which the defense attorney said helped his client recall how the shoes wound up in the car.

Fitzhugh testified that he was concerned when he received a 1:15 p.m. call from a school secretary asking why his wife wasn't in class.

"Well, the first thing I thought of was a traffic accident," he said. "I was immediately alarmed. Kristine is punctual. She is efficient."

He said he was on his way back to Palo Alto when he used his cell phone to call their home and her cell phone. Fletcher has contended that Fitzhugh did not make the calls because they do not appear on cell phone records. Fitzhugh did not explain at what point he'd hung up or whether he left messages, saying only, "I remember I called and I didn't talk to her in either case."

He did address a question raised early on by Palo Alto police investigating the homicide: Why, if he was so concerned about his wife, didn't he go directly home? Fitzhugh first stopped at the home of friends to keep a 1:30 p.m. appointment.

He explained yesterday that as he was heading home, he realized that a major accident was unlikely because his wife was driving only in the neighborhood. He figured she had "finally made a mistake and gone to the wrong school" to teach. He calmed down and picked up Carolyn Piraino and Gaelyn Mason.

Fitzhugh asked if they'd mind stopping at the house, and they made the two-minute drive to Escobita Avenue.

His level of concern jumped as the house came into view: "It changed a great deal when I saw Kristine's car in the driveway. It went to full alert when I saw the door open," he said, concluding his testimony for the day.

He returns to the witness stand at 9 a.m. today.