Court Weighs Condemned Killer’s Plea

SAN FRANCISCO — Three days before condemned killer Thomas M. Thompson is scheduled to walk into California’s death chamber, a panel of federal judges Friday heard arguments on why he deserves a new trial.

The 11 judges of the 9th U. S. Circuit Court of Appeals did not issue a ruling following arguments by Thompson’s attorneys that the 42-year-old inmate was convicted of a 1981 Laguna Beach rape and murder only because his lawyer botched his defense and the prosecutor withheld important evidence.

A federal court clerk said the judges’ decision is expected by Monday. Thompson’s execution is scheduled for Tuesday at 12:01 a.m.

“The prosecution’s job is not to seek a conviction,” Federal Public Defender Quin Denvir, one of Thompson’s attorneys, argued Friday. “It is to seek truth and justice. Here, that wasn’t done. . . . We believe the prosecution crossed the line and [its conduct] bordered on fraud on the court.”

That assertion was hotly contested by Deputy Atty. Gen. Holly D. Wilkins, who told the assembled jurists that Thompson’s attorneys were grasping at straws on the eve of his execution.

Any prosecution missteps during the original trial had no meaningful impact on the trial’s outcome and the resulting death sentence, she said. Instead, she said it was more greatly influenced by the defendant’s own testimony.

“He had a fair trial,” Wilkins said of Thompson, who was not present in court. “He got on the stand and revealed himself for what he is--a rapist-killer.”

Unless a federal court stays his execution, Thompson will be the fifth man to be executed in California since the death penalty was restored. But unlike the four who preceded him to the execution chamber, he alone has protested his innocence every step of the way since his conviction.

His protests have garnered support from a variety of corners, including some members of the clergy, politicians and seven former prosecutors who say his case does not meet the death penalty standard. However, Gov. Pete Wilson on Thursday denied clemency for the condemned killer.

*

Thompson was convicted of raping and then murdering 20-year-old Ginger Fleischli, a Newport Beach woman whose bound body was found in a shallow grave in a grove of trees near El Toro Marine Corps Air Station in Irvine.

Thompson and two friends had bar-hopped with Fleischli on the night of her murder, and he testified that the two of them had consensual sex before he passed out under the influence of alcohol and hashish. He said that she was gone when he awakened the next morning.

Prosecutors say his account is a fabric of flimsy lies; that Thompson raped Fleischli and then killed her to cover up the crime, or perhaps as part of a plot with David Leitch, a co-defendant who had a grudge against the victim and was convicted of helping Thompson dispose of the body.

Leitch’s role is central to the defense’s argument that the condemned man was a victim of an unfair trial.

Leitch, convicted of second-degree murder in the case, said in a parole hearing two years ago that on the night of Fleischli’s death, he saw her having what appeared to be consensual sex with Thompson--information that Leitch’s defense attorney, now a judge, recalls hearing at the time.

But that information, which casts doubt on whether Fleischli was raped, was withheld from Thompson’s attorneys prior to his trial.

If Thompson did not rape Fleischli, the crime would not rise to the level of a capital murder under California law, and Thompson would not be facing the death penalty, Denvir argued Friday.

Denvir also told the panel of judges that Thompson’s original defense attorney, Ronald G. Brower, failed to present any evidence challenging the prosecution’s rape theory, a lapse that Denvir said could be the difference between life and death for his client.

When Wilkins tried to minimize this lapse on Brower’s part, Judge Sidney R. Thomas remarked sternly: “No defense was put on for the rape charge, and he is going to be executed because of that rape charge.”

The actions of attorneys on both sides in the original case require a new trial, Denvir said. “It is an extraordinary remedy and we understand that, but this is an extraordinary case,” he said.

Thompson’s attorneys also argued that prosecutor Michael A. Jacobs failed to tell jurors important information about two jailhouse informants who testified against Thompson. Jurors were never told that one of those witnesses had been described by police as an unreliable witness, while the other was presented as someone who had nothing to gain from testifying, but who was later given special consideration in parole hearings.

Denvir also argued that Jacobs presented different and contradictory theories to the two juries that delivered verdicts against Thompson and Leitch. In the case against Thompson, the Orange County prosecutor pointed to the rape as the sole motive, Denvir said, quoting court transcripts. But in Leitch’s trial, Jacobs said it was the accomplice who engineered the crime, and added that he may have been present when the murder occurred, Denvir said.

*

The judges questioned both Denvir and Wilkins extensively on the seeming contradictions and whether it signaled an effort by Jacobs to present information he knew was not true to garner a conviction in each case.

Wilkins countered that Jacobs only altered his arguments to include information that was uncovered after the first trial, and to tailor his presentation to each defendant. At one point, though, she was cut off by Judge Stephen Reinhardt, who was skeptical of Jacobs’ tactics.

“I’m not talking about theory, I’m talking about facts,” Reinhardt said. “Did he tell one jury that [Thompson] was there alone, but then told another jury both were there?”

Wilkins responded that Jacobs presented the best information he had available in each case.

But Judge Thomas said he was uncomfortable with the way Jacobs presented a different scenario to the Leitch jury. “This would seem to be fundamentally different theory” as to the circumstances of the crime, he said.

“All this discussion has not altered the fact that [Thompson] brutally raped and murdered Ginger Fleischli,” Wilkins said, adding later that “Mr. Thompson had an alibi and he presented it to a jury that did not believe him.”