Last Updated: Friday, June 9, 2000, 5:30 p.m.

Bail set in Fitzhugh case: $10 million

by Jennifer Kavanaugh

Superior Court Judge Charles Hayden told a Palo Alto courtroom today that Kenneth Fitzhugh, charged with the murder of his wife, Kristine, was entitled to post bail but that his pretrial freedom would come at a hefty price: $10 million.

Rejecting the prosecutor's arguments that bail should be denied, Hayden said he couldn't find any legal justification for withholding bail. But Hayden also disregarded the protests of Fitzhugh's attorney, who had asked for a "reasonable" bail in the amount of $375,000.

"I believe he is entitled to bail," Hayden said of Fitzhugh, who has been held at the county jail in San Jose since his arrest on May 19. But Hayden also ordered Fitzhugh to hand over his passport, saying he was afraid that Fitzhugh might run to avoid a murder trial. "I think the flight risk is horrendous."

Fitzhugh's attorneys refused to answer questions after the hearing, and it is not known whether Fitzhugh will attempt to raise the money for bail.

The hearing marked the first time Fitzhugh's lead counsel, noted Palo Alto attorney Tom Nolan, had spoken publicly on behalf of his client. The hearing also provided the first glimpse into the wishes of the Fitzhughs' two grown sons, Justin and John, who attended the hearing and instructed their attorney to ask the court to release their father on bail.

Nolan described Fitzhugh as a model citizen, father and husband, who has given up access to his financial holdings and has no plans to flee the area. Running down a list of Fitzhugh's community-service activities, Nolan said his client had passed a polygraph test declaring his innocence and had done nothing to suggest he would present harm to the community if released.

"There is no one who is more entitled to bail than Mr. Fitzhugh," Nolan said. "He was married 33 years and had no reason to harm his wife, none whatsoever. From day one, he cooperated with police as much as possible. . . He did everything right."

Fitzhugh has been the subject of public attention and intense media scrutiny for the past month, since his wife was found dead May 5 at the bottom of the basement stairs of their Southgate neighborhood home. Initially declaring Kristine's death an accident, the Palo Alto Police Department later determined she had been slain with a blunt object. Police arrested Fitzhugh for the murder after a two-week investigation.

Sitting before a courtroom filled with reporters and police officers, Nolan took the opportunity to blast the media and Palo Alto police, saying both were threatening Fitzhugh's right to a fair trial. Nolan said reporters were out to try Fitzhugh in the media and that the police held Fitzhugh up as a suspect to placate a community frightened by the homicide.

"There's no way in this age that someone is going to get a fair trial in the media," Nolan said.

Hayden, who also presided over Fitzhugh's arraignment last month, again moved the proceedings to a first-floor courtroom, allowing Fitzhugh to avoid television cameras stationed in the hallway.

"I do not want this case to be tried in the press," Hayden said. "I have taken pains to address that all I can."

Deputy District Attorney Michael Fletcher said little during the hearing, asking only that Fitzhugh be denied bail based on the seriousness of the crime described in the prosecution's affidavit. Fletcher, however, did fight Nolan's attempts to get a lower bail more in line with Fitzhugh's assets. Fletcher said the bail should be based on the crime and not on what the defendant can pay.

But Nolan argued his client couldn't be expected to post such a large bond. Offering what he called examples of his client's honor, Nolan said Fitzhugh had relinquished control of his and Kristine's estate to an independent trustee and signed over to their two sons a $48,000 insurance policy on Kristine's life. Nolan said the couple's Escobita Avenue home could sell for about $2 million. By the time the equity was calculated and Kristine's half of the estate was deducted, Fitzhugh would have about $375,000 available to post bail. Nolan said Fitzhugh wouldn't try to use his wife's half of the estate to post bail. He made a reference to other assets, but didn't say what those were.

"He has nowhere to go and no resources to go there, and he has no interest in going there," Nolan said. "He has two sons he wants to care for. These two young men are the victims here."

Fitzhugh is due back in court on June 22, when Hayden will hold a preliminary hearing to determine whether the district attorney has put forth sufficient evidence to bind Fitzhugh over for trial.