But Some of His Verdicts Reflect Leniency : A Tough Judge--on and off the Bench

Most weekdays at noon, a stocky man with graying hair and arm tattoos can be seen battling men 20 years younger in a quick game of basketball at the Santa Ana YMCA. If he is tough on the basketball court, some Orange County lawyers say, you should see him in his own court.

Superior Court Judge Robert R. Fitzgerald, who loves John Wayne, the Marines, and the Los Angeles Lakers, has no match when it comes to his reputation as the toughest judge in Orange County, or at least the most outspoken, observers say.

How tough is he?

I’ll Be Waiting’

When killer Ivan Von Staich said last month at his sentencing that he hoped to meet Fitzgerald on the street someday, the judge answered: “I’ll be waiting for you.”

Fitzgerald told another killer, John Visciotti, 26, after sentencing him to death: “It is my greatest hope, sir, that you will actually be executed, and if it would happen soon, I would enjoy that.”

He berated the district attorney’s office for not seeking the death penalty against 21-year-old Brian L. Hefner, Visciotti’s partner. When the jury sentenced Hefner to life without parole for attempted murder and robbery, Fitzgerald added 11 years--to decrease any chance, he said, that Hefner might someday be free.

Fitzgerald has publicly criticized at least two juries that returned verdicts of second-degree murder instead of first degree. In one of them, the Von Staich case, he called the defendant “that animal.”

He is one of the few judges to take a public stand against the state’s chief justice, Rose Elizabeth Bird, who is facing a reconfirmation vote this November. Her critics contend that she is too liberal and generally opposed to the death penalty. He is also one of the few in Orange County to publicly criticize the 4th District Court of Appeal’s four Santa Ana justices, all of whom are Fitzgerald’s former Superior Court colleagues.

Yet Fitzgerald has gained the most widespread publicity in the past weeks for two cases in which he infuriated the district attorney’s office.

In one of them, Fitzgerald let Joeri DeBeer, convicted of involuntary manslaughter, walk out the courtroom on probation after the jurors pleaded for leniency. They said DeBeer, an 18-year-old from the Netherlands, deserved a second chance because the man he killed had sexually abused him for four years.

In the other case, a nonjury trial, Fitzgerald acquitted Michael Garritson, 32, of Fullerton of charges that he killed a baby. Jurors at Garritson’s first trial had voted 11 to 1 to convict him of murder.

A veteran lawyer from the public defender’s office said of the judge: “I believe the old boy has mellowed. Fitzgerald would never have made those same two decisions a year ago.”

Based on ‘Law and the Facts’

Fitzgerald disagrees.

“You make your decision based on the law and the facts in front of you,” he said in an interview in his chambers. “Some of these defendants are animals, and I’m not afraid to give them what they deserve. But I’m also not afraid to side with a defendant when that’s the best way justice can be served.”

Fitzgerald, 51, who has been on the Superior Court bench for six years, is not a judge who blends in with the plastic paneling. His supporters staunchly defend him, but some of his critics can’t discuss him without raising their voices.

Many attorneys in the county say they like him but shudder at some of the things he says from the bench.

One review that Fitzgerald probably would not mind comes from William M. Monroe, a top Santa Ana criminal defense attorney.

“Judge Fitzgerald has that Marine Corps attitude--tough but fair,” Monroe said. “He lets you put on your lawsuit,” meaning he doesn’t interfere with the defense lawyer’s game plan. “Then, if your client is found guilty, he sends him away for a thousand years.”

‘Always Polite’

One defense lawyer who praises Fitzgerald is Charles Margines, who represented Linda Garritson, acquitted of being an accessory to murder at the same time that Fitzgerald freed her husband.

“Fitzgerald is always polite, very considerate to jurors, and knows the law,” Margines said. “He is tough, but he is also willing to listen. I would never hesitate to have him assigned to one of my cases.”

But others are far less generous.

More than a dozen defense attorneys and six prosecutors interviewed had much to say about Judge Fitzgerald, but only if their names were not used. All of them will likely be in his courtroom in the future.

“The man’s ego gets in the way of his decisions,” said one defense attorney. Another, who claims he avoids Fitzgerald’s courtroom if at all possible, said, “He is too impulsive.” Many defense lawyers complain that Fitzgerald is pro-prosecution and holds grudges against attorneys he doesn’t like, which can affect their cases.

Fitzgerald has critics in the district attorney’s office, too, many of whom argue that he is pro-defense.

One prosecutor who generally praises Fitzgerald complains that the judge too often keeps score.

“It’s like: ‘OK, I let you guys win on these two points, so I’ve got to let the defense have a couple.’ ”

But Melvin L. Jensen, who prosecuted DeBeer, calls Fitzgerald “a stand-up guy.” He said: “I don’t always agree with him, but I think he tries to be fair.”

Hipshooter, Some Claim

One complaint from both sides is that Fitzgerald “shoots from the hip,” both in his comments and sometimes in his decisions.

For example, three years ago in an attempted murder case, Fitzgerald ordered his bailiff to turn off the courtroom lights. Fitzgerald wanted to give jurors a better idea of the lighting at the time the crime occurred. Defense lawyers were so furious that Fitzgerald had to declare a mistrial because of his own actions.

Mike Dow, a former prosecutor now in private practice, recalled a case in which the weapon was a sawed-off shotgun.

“Judge Fitzgerald said from the bench there was only one purpose for a sawed-off shotgun, and that’s to kill people,” Dow said, his eyes rolling. “I could just see the appellate court coming down on my case over that.”

Fitzgerald, however, only smiles at the criticisms.

“The private defense bar saw me as Attila the Hun over my comments in the Visciotti case,” he said. “They all were papering me for a while (filing affidavits requesting a different judge). But I think that’s died down now.”

Admits His Mistake

He admits that he made a mistake when he ordered the courtroom lights turned off. But the mistake, he said, was in not telling the lawyers ahead of time what he was about to do.

But Fitzgerald says criticism won’t deter him. “We weren’t put on the bench to be namby-pambys,” he said. “Judges are public figures. We are in an environment where the public is entitled to know where we stand.”

Fitzgerald, who served four years in the Marine Corps before going to law school, began his law career in the Orange County district attorney’s office. He was in private practice briefly after that, then was a prosecutor for three years in Los Angeles County.

He was elected to the North Municipal Court bench in 1976. It was there that he gained his reputation for toughness.

In his most celebrated case, Fitzgerald sentenced two social workers to six months in jail for demonstrating at a military arms exposition at the Anaheim Convention Center, a sentence that many considered unusually harsh.

Fitzgerald said he would let them out after 30 days if they signed a letter promising not to do it again. They refused. He finally let them out after two months, telling them that he had finally met someone “more stubborn than I am.”

Fitzgerald was elected to the Superior Court bench in 1980. His campaign signs, “Reelect Fitzgerald,” created a stir. Fitzgerald said he wanted voters to know “that I am an elected judge, not a Jerry Brown appointment.”

On Death Penalty Panel

Fitzgerald is now on a criminal panel that receives most of the death penalty cases. So far, he has sentenced four men to Death Row, calling all four “very deserving fellows.” “I don’t see a damn thing wrong with executing people,” Fitzgerald declared.

He sometimes criticizes the state Supreme Court as “ridiculous.” He said the Hefner verdict and sentence were overturned because the court ruled a year later that jurors must be told that “intent to kill” is necessary in finding special circumstances that would lead to life without parole.

Fitzgerald points to testimony during the trial in which Hefner exhorted Visciotti, “Kill him, kill him, kill him!”

“You don’t think that meant he wanted Visciotti to kill him? The jurors had to be instructed on that? Come on,” Fitzgerald said.

Fitzgerald doesn’t agree with his critics that he is not fair to lawyers in the courtroom. But he relishes his image as tough, like the man whose picture hangs in his chambers.

“I see John Wayne as a rugged kind of settler, the kind of guy who is courageous, tough, who doesn’t back down. I don’t see anything wrong with being known like that.”