Last Updated: Wednesday, June 20, 2001, 12:20 p.m.

Judge allows Fitzhugh paternity motive in slaying
Prosecution will be allowed to present theory behind death

by Bill D'Agostino

Santa Clara County Superior Court Judge Franklin Elia ruled today that a jury will be allowed to hear evidence concerning Kenneth Fitzhugh's possible motive for murdering his wife Kristine Fitzhugh last year.

In a motion filed last week, defense attorney Michael Fletcher wrote that he is planning to argue that Fitzhugh killed his wife because she revealed to him that she was about to tell her oldest son Justin that Fitzhugh was not his father.

Fletcher wrote in motion filed last week that family friend Robert Brown "had a long-term, intimate relationship with the victim" in the 1970s, around the time Justin Fitzhugh was conceived. He also noted that a DNA test has established that Brown, who will be a witness in the case, is Justin Fitzhugh's father.

Brown, according to the district attorney, is planning to testify that in January 2000, Kristine told him told over the phone that she was planning to disclose to her son who his real father was once he graduated from college.

Kristine Fitzhugh, a 53-year-old teacher, was murdered in her home on May 5, 2000, approximately two weeks before Justin graduated from the University of the Pacific in Stockton.

In the motion, Fletcher also wrote that Kristine Fitzhugh "often took her son to visit Mr. Brown on 'Father's Day' and birthdays."

In response, defense attorney Tom Nolan gave no rebuttal against Brown's alleged paternity, but instead tried to discredit Brown's character, saying that he is a disbarred attorney who has had problems with drugs.

In the same decision, Elia also ruled that the jury will not hear two witnesses the prosecution tried to admit, Mary Wobley and Peter Depue.

Wobley had planned to testify that she saw Kenneth Fitzhugh slap Kristine Fitzhugh nine months before the murder.

In a motion filed June 12, Nolan argued that Wobley was an unreliable witness who was biased by media reports surrounding the identity of the man she witnessed.

"Wobley saw a large photograph of a mug shot of Mr. Fitzhugh on the front page of the San Jose Mercury," Nolan wrote. "From this photograph she alleges that this is the person that she saw nine months earlier."

Depue was an inmate at the same prison where Fitzhugh is being held. In an interview with Palo Alto Police lead Detective Mike Denson, Depue stated that Fitzhugh told him in jail that "they're not going to catch me for it."

In the ruling, Elia wrote that "the problematic character of this evidence and the consumption of court time and resources to present it outweigh the probative value of the proposed testimony."

Jury selection is expected to begin on Monday at the Palo Alto courthouse on Grant Street.