Last Updated: Friday, July 13, 2001, 6:30 a.m.

Prosecution could rest as early as Tuesday
Defendant expected to take stand in his own defense

by Bill D'Agostino

The judge presiding over the murder trial against Kenneth Fitzhugh told the jury yesterday that the prosecution may be finished presenting its case as early as Tuesday.

Fitzhugh is accused of killing his wife, Kristine Fitzhugh in their Southgate home last year.

The trial is recessed all day Friday.

If the judge's prognostication turns out to be true, it would mean the trial is moving well ahead of schedule. During pretrial motions, Fletcher expected to present his case in 4 to 5 weeks.

Justin Fitzhugh, Kristine Fitzhugh's son, has not testified yet, but is expected to before the prosecution rests.

After Deputy District Attorney Michael Fletcher concludes his presenting of witnesses and evidence, Kenneth Fitzhugh's attorney, Thomas Nolan, will get to present his own witnesses to counter the findings presented against his client.

The testimony of Kristine Fitzhugh's former lover, Robert Brown, who took the stand on Wednesday, ended early Thursday morning.

Brown testified that Kristine called him six months before her death alerting him that she planned to tell her son, Justin, that Brown was his biological father. This is key to Fletcher's theory that the motive for why Kenneth Fitzhugh, a former Boy Scout leader with no history of domestic violence, might have brutally murdered his wife.

Fletcher argued in opening statements that Kenneth Fitzhugh bludgeoned and strangled his wife in the family's home because he didn't want her to reveal to Justin that he was not the boy's genetic progenitor. According to Fletcher, Kenneth Fitzhugh then dragged his wife's body into the basement to stage her death as a fall, and cleaned up the blood evidence of his deed from the kitchen floor.

But Nolan believes that Brown, a disbarred attorney with a history of drug abuse and criminal activity, is an unreliable witness.

Nolan argued that an intruder killed Kristine, but police missed evidence leading to that conclusion because they were blinded by their belief that Kenneth Fitzhugh committed the crime.

Nolan questioned Brown about whether police had tried to bias him against Kenneth Fitzhugh by telling him facts of their investigation.

Brown said that they hadn't, but upon further questions by Nolan, he did admit that police mentioned "in passing" that investigators were exploring the possibility of "strange behavior" in the Fitzhugh home, including evidence of extramarital affairs, as well as gay and lesbian activity.

Referring to Kristine, Brown described his lover as a "very prestigious woman and she led a very upstanding life . . . she was very well respected by the community and by me."

The next witness to take the stand after Brown was Cynthia Hall, a Santa Clara County criminologist who analyzed blood-swab evidence taken from the Fitzhugh home by Palo Alto police.

Testimony by the professional and self-assured Hall was a marked difference from the backtracking and wobbly testimony made by Brown.

In lengthy testimony and cross-examination, Hall said that DNA tests revealed that much of the blood evidence taken from the kitchen, basement, and bathroom was most likely blood from Kristine Fitzhugh.

Hall also noted that a few of swabs taken from the kitchen contained a mixture of Kristine Fitzhugh's DNA and the DNA of another man, not Kenneth Fitzhugh.

However, that evidence, because DNA is so easy to discover, could have been from any number of people who were inside the Fitzhugh home.

Kenneth Fitzhugh's DNA was only found in the downstairs bathroom, where witnesses had seen him clean himself off after attempting to give his wife CPR.

After Hall, Santa Clara County criminologist David Chun took the stand. Chun used a chemical known as luminol to reveal spots that were possibly blood inside the Fitzhugh home.

He testified that police investigators often use luminol "as a last resort" to find evidence of a crime scene that has been cleaned.

Accompanied by Palo Alto police, Chun sprayed the chemical in rooms of the Fitzhugh's homes, turned off all lights and looked for glows that revealed possible evidence of blood.

The chemical revealed one large 4-by-4-foot glowing spot on the kitchen floor, as well as spots on kitchen chairs, and the steps going down to the basement.

Luminol as an investigative tool has its flaws, however. Chun noted that it will reveal other chemicals, such as bleach and vegetable extracts, as well. He did say that other chemicals will not glow as long or as brightly as blood.

Nolan questioned Chun about why only certain parts of the house had been sprayed for luminol, especially wondering why no part of the basement floor, where Kristine's body had been found, had been sprayed.

Nolan has accused the police of willfully neglecting to look for evidence that would show that anybody other than Kenneth Fitzhugh committed the crime.

One of the remaining witnesses for Fletcher will be Dr. John Thornton, one of the leading luminaries in the crime scene use of luminol, who will dissect the usefulness of the chemical as well as the evidence gotten by Palo Alto Police.

Nolan will get to call his own luminol expert to counter Thornton sometime in the weeks to follow as he presents his case.

A list of other potential witnesses for the defense have emerged during proceedings and court documents. They include: experts to discuss cell-phone technology; the director of forensic services for the San Francisco Police Department to dispute blood evidence; a pathologist to give an alternative explanation for the manner of Kristine's death; Kenneth Fitzhugh's psychiatrist; as well as the defendant, Kenneth Fitzhugh.

During pretrial proceedings, Nolan said that he expected to call his client to the stand.