Last Updated: Friday, June 23, 2000, 2:20 p.m.

Fitzhugh attorneys challenge evidence collection

by Jennifer Kavanaugh

With defense attorneys sharply questioning how Palo Alto police had handled evidence, the preliminary hearing into whether Kenneth Fitzhugh should be tried for the murder of his wife, music teacher Kristine Fitzhugh, opened today.

Kenneth Fitzhugh's attorney, Thomas Nolan, vigorously cross-examined Detective Jean Bready about the methods she and her colleagues used to collect evidence at the Escobita Avenue crime scene, particularly some bloodied items found in Kenneth Fitzhugh's Suburban SUV.

The prosecution is pointing to three items found in Fitzhugh's car--a blood-stained paper towel, a pair of running shoes and a medium-sized men's polo shirt--as major pieces of physical evidence linking Fitzhugh to the crime.

Through the questioning, Nolan established that an officer had moved the blood-stained running shoes without first photographing them; a detective had put the paper towel and running shoes in evidence bags without recording the time and date; and investigators had failed to notice the green polo shirt, reportedly stuffed under the driver's seat, until after the Suburban had been taken to the county crime lab.

Nolan questioned police after Deputy District Attorney Michael Fletcher began presenting evidence before Judge Charles Hayden, who will decide if Fitzhugh should be bound over for trial. The hearing, which recessed at noon today, is expected to resume on Monday.

After the hearing, Nolan did not answer reporters who asked if he planned to argue that evidence was somehow compromised in the investigation. Fletcher, however, told reporters that he felt the hearing today went well and that there are no problems with either the evidence or how it was collected.

"The Palo Alto Police Department did an excellent job," Fletcher said. "I don't expect any legitimate problems with any of that."

In criminal cases, courts pay close attention to both the collection and chain of custody of evidence--whether police and prosecutors can account for each item of evidence and whether it was in the custody of the appropriate people at all times. If the proper chain of custody is not established, defense attorneys may argue that the evidence was tainted or corrupted.

Bready testified that she and her partner, Detective Sandra Brown, decided to stop the search of the Suburban and seal off the car as soon as they saw the shoes and paper towel. The shirt was discovered in the county crime lab by a technician doing the search.

Nolan also challenged how Bready interviewed a Peet's Coffee & Tea employee, who was supposedly the last person to see Kristine in public. Nolan asked why Bready didn't get a receipt of the coffee and muffin Kristine purchased at the shop to establish the time, but Bready said the receipts weren't itemized and that there was no way to prove that a particular receipt was for Kristine's purchase.

A second member of the police force, Agent Cornelius Maloney, testified today about blood stains he observed in the Fitzhughs' kitchen, where police say Kristine was beaten to death with a blunt object.

Maloney's testimony is expected to continue Monday.