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Kenneth Fitzhugh fights for credibility

by Bill D'Agostino

K Kenneth Fitzhugh struggled this week to convince the jury that he did not brutally murder his wife of 33 years, popular Palo Alto music teacher Kristine Fitzhugh.

Some spectators waited hours for a seat inside Santa Clara County Superior Court Judge Franklin Elia's packed courtroom in Palo Alto.

Fitzhugh waived his constitutional right not to testify in his own case because there was incriminating evidence that he alone could explain, namely how his blood-spattered tennis shoes, a green shirt and a paper towel ended up in his sports utility vehicle on May 5, 2000 -- the day Kristine was killed in their Southgate home.

According to Fitzhugh, a 50-minute hypnosis session in April 2001 unlocked repressed memories he could not recall when questioned by police in the days and months following the murder.

Fitzhugh said hypnosis helped him remember how he put the three items into the vehicle on the afternoon of May 5 after he had unsuccessfully tried to resuscitate his wife, who lay at the bottom of their basement stairs. Fitzhugh told the jury he initially believed she had fallen, although autopsy reports later found seven blunt trauma wounds to the back of her head.

Prosecutors and police believe Fitzhugh placed the body on the bottom of the steps himself to make it look like an accident after killing her in the kitchen. They claim he later gave her mouth-to-mouth resuscitation in order to trick friends and police into believing he had not murdered her.

Defense attorney Thomas Nolan argued that Palo Alto police were indeed tricked -- not by Fitzhugh, but rather by misleading and confusing evidence that led them to believe Fitzhugh committed the crime when in reality the murderer was a stranger who came into the family's home and attacked Kristine in the basement.

David Spiegel, a Stanford professor and hypnosis expert who performed the hypnosis on Fitzhugh, testified on Thursday. Fitzhugh described hypnosis as like watching a movie and becoming a part of the action.

As Deputy District Attorney Michael Fletcher began his cross-examination of Fitzhugh on Wednesday, he immediately attacked the credibility of Fitzhugh's hypnosis-regained memories.

A skeptical Fletcher asked Fitzhugh why it took 11 months to figure out how the three most incriminating pieces of evidence got into his SUV.

Referring to "this hypnosis thing" and waving arms derisively in the air, Fletcher asked why it took hypnosis to remember those incriminating details when Fitzhugh remembered specific details about the rest of the day, including the exact temperature, what sections of the newspaper he and his wife read in the morning, and the route they jogged afterwards.

Fletcher, a Santa Clara County deputy district attorney, threw a wink to his mother sitting in the front row before laying into Fitzhugh's story.

On the stand, Fitzhugh also recounted his romance with Kristine. He said that she first approached him at a San Diego County fair in 1964 while he was playing the pipe organ, a lifelong hobby. She was 16 and he was 20.

"She came up to me and said, 'Why don't you play more Bach,' which I thought was a great opening line," Fitzhugh told the jury with a smile. They were married two years later.

Fitzhugh also testified that prior to his wife's death he never knew or even suspected that their elder son, Justin, was fathered by another man. His testimony directly contradicted Fletcher's theory that Fitzhugh killed his wife to keep her from telling Justin that his biological father was a family friend, Robert Brown.

Fitzhugh said one reason he never suspected that Brown had fathered Justin was that Brown led a "gay lifestyle." According to Fitzhugh, Brown expressed disdain for women, and once hit on Fitzhugh himself.

Fitzhugh told the jury that he rejected him, saying, "I respect your lifestyle but I don't want a part of it."

Despite the refusal, Fitzhugh said that the two men were extremely close, calling Brown "the brother I never had."

Fitzhugh said he first found out that Brown was Justin's biological father after he had been in jail eight months on charges of murdering his wife. He told the jury that he was "devastated" by the news.

"I went back to my cell and was quiet for a long time," Fitzhugh said. Fitzhugh recalled that later he had a talk with Justin in which he told him, "You are still my son and I am still your dad."

Justin himself took the stand earlier in the week, saying that he also never knew or suspected that Brown was his biological father.

The Fitzhugh family broke off with Brown in 1995, when he couldn't control a drug problem despite receiving drug treatment paid for by the Fitzhugh family.

When Brown testified earlier in the trial, he said Kristine Fitzhugh spoke to him just once after he was cut off by the family. He said she called in December 1999 to invite him to Justin's college graduation, where he said she planned to tell Justin that Brown was his biological father.

Kristine was killed two weeks before Justin graduated from the University of the Pacific at Stockton.

Before Justin took the stand, Kenneth Fitzhugh's attorneys called witnesses to discredit Robert Brown's character, especially his credibility.

"As my friend, I knew that he did not always tell the truth," Susan Cielo, Brown's friend and former secretary testified. Brown has a criminal record (including a felony for stealing a car), and is a disbarred attorney.

Also this week, Angelina Whitesell, Justin's fiancÈe who lived in the Fitzhughs' home for several summers and began living there full time in mid-1999, told the jury about an eerily premonitory conversation she had with Kristine in 1998 during which Kristine said that children should be told the truth about their parentage.

Whitesell said she told Kristine, whom she called a "mother-figure," about a cousin of hers who had recently discovered that the man she knew as her father was not, in fact, her biological father. Whitesell said she asked her if she believed the cousin's parents should have been honest with her.

Whitesell said Kristine felt "strongly, close to adamant" that her cousin should have been told the truth about her parents. Whitesell is now a music teacher in the Palo Alto Unified School District, as was Kristine at the time of her death.

Closing arguments in the case are scheduled to begin on Monday.

Additional details of the Fitzhugh trial are posted on the Weekly's community Web site: www.PaloAltoOnline.com.