Judge Fitzgerald: ‘Had to Go With My Conscience’

Up until the moment he declared that Sheryl Lynn Massip was insane when she ran over her infant son, Robert R. Fitzgerald wasn’t sure how he would rule in the troubling case.

Before making up his mind in court Friday, the Superior Court judge looked to both lawyers for guidance: Was there any legal authority for him to find Massip insane after a jury had, in painstaking deliberations, found just the opposite?

“The court absolutely cannot do that,” prosecutor Tom Borris adamantly told the judge. Grudgingly, defense attorney Milton C. Grimes also confessed that he could find no precedent for Fitzgerald to take such a drastic course of action.

Fitzgerald went ahead and did it anyway.

A 12-year veteran on the bench, Fitzgerald is an independent thinker, rarely afraid to stand on a controversial position.

His decision in the Massip case, a radical and unprecedented one that is certain to be appealed, solidifies the image of a man unafraid to march to a different beat.

But at the same time, the Massip decision might seem to fly in the face of his reputation in Orange County legal circles as the toughest judge in town.

After all, this is a man who loves John Wayne and the Marines, who has been known to invoke harsher sentences than even prosecutors have sought, and who remarked after one of his five death-penalty sentences was upheld: “There is a God.”

Fitzgerald isn’t worried about tarnishing his tough-guy reputation with his Massip decision. He expects appeals. He can foresee some backlash from the legal community. But, he said with a laugh, “I don’t think many people are going to be calling Judge Fitzgerald a lily-livered liberal.”

In an interview after the ruling, the judge described his decision as “the right thing to do. . . . I struggled with what to do, but in the end I followed my conscience.”

The evidence, he said, was clear: Massip, a 24-year-old former Anaheim housewife, was “bonkers” when she ran over her colicky 6-week-old son with the family Volvo on April 29, 1987.

“I just had to go with my conscience and my feelings about right and wrong,” said Fitzgerald, 53. “I believe a trial judge’s main responsibility has to be to serve justice and I just didn’t see any alternative here but to find that Sheryl Massip was insane.”

Fitzgerald said that the weight of the psychiatric testimony from expert witnesses and Sheryl’s own “bizarre conduct” in the killing made a finding of insanity overwhelming.

Only a disturbed and insane person, Fitzgerald said, would have first tried to throw a child into the path of a slow-moving vehicle in a pathetically futile attempt at murder.

Only an insane person, he said, would have chosen such “a grotesque means” of finishing the job--running over the child herself--rather than seeking a far less suspicious tactic.

And only an insane person, he said, would finally have concocted a completely unbelievable kidnaping story to try to cover her tracks.

And even two of the prosecution’s main witnesses helped make that point, Fitzgerald said.

He pointed to testimony from Dr. Kaushal Sharma, a well-respected USC psychiatrist. Sharma was the only medical expert to testify that Massip was sane at the time of the killing, but even he acknowledged that he struggled for two sleepless nights over that decision and might well have reached a different conclusion if he had used another method of analysis.

And Fitzgerald said of Alfredo Massip, who offered the most damning testimony of the trial against his ex-wife’s character: “I had great concern that he was lying to us.”

And so, Fitzgerald said he was convinced Sheryl Massip was crazy.

Still, realizing the legal import of what he felt inclined to do, Fitzgerald said he wrestled with his decision until the very end.

He even brought into the courtroom Friday two scripts of separate endings to the tragic story--one upholding the murder verdict and giving her probation, the other clearing her altogether by reason of insanity.

But once he entered the courtroom, Fitzgerald never looked at his prepared notes, he said. The judge went by his legal instincts, he said, and his conscience. And he delivered his final decision to a stunned courtroom.

The Massip decision may prove one of the judge’s most controversial, but it is only the lastest in a long list of Fitzgerald stories that have reached the point of lore in Orange County courts.

When one convicted killer told Fitzgerald at his sentencing that he hoped to meet up with the judge on the street someday, Fitzgerald shot back: “I’ll be waiting for you.”

Earlier this year, when Fitzgerald learned that the state Supreme Court had upheld his death sentence for murderer Thomas Thompson, Fitzgerald remarked: “There is a God.”

In 1983, Fitzgerald sentenced to death 26-year-old John Visciotti, who killed two men after robbing them of $60. Fitzgerald delivered his sentence with this closing salvo: “It is my greatest hope, sir, that you will actually be executed, and if it would happen soon, I would enjoy that.”

“He has a reputation as a tough judge, and a lot of defense attorneys are afraid of him,” said Deputy Dist. Atty. Thomas M. Goethals, who prosecuted Visciotti and several other cases before Fitzgerald.

“But he certainly is not a rubber stamp for the prosecution. . . . We are obviously very disappointed in what he did today. But Judge Fitzgerald is a freewheeling judge who does what he thinks is right in every case,” Goethals said.

And Fitzgerald’s decision in the Massip case is not the first time that he has infuriated the district attorney’s office.

In 1986, he freed on probation Joeri DeBeer, an 18-year-old Dutch youth convicted of killing his guardian--who had molested him for years--after jurors pleaded for leniency.

The prosecutor in that case, Deputy Dist. Atty. Melvin L. Jensen, said that DeBeer should at least be confined in a California Youth Authority facility for a 90-day diagnostic study. Jensen said at the time that Fitzgerald’s decision to set DeBeer free sent out a message of “use a gun and go to college.” In another interview, Jensen said that Fitzgerald is “a stand-up guy. . . . I don’t always agree with him, but I think he tries to be fair.”