Last Updated: Wednesday, June 20, 2001, 12:20 p.m.
Judge allows Fitzhugh paternity motive in slaying
Prosecution will be allowed to present theory
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
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
In the same decision, Elia also ruled that the jury will not hear
two witnesses the prosecution tried to admit, Mary Wobley and Peter
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
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.