U.S. Judges Weigh Imminent Execution

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 U. S. 9th Circuit Court of Appeals did not issue a ruling after arguments by Thompson’s attorneys that he was convicted of a 1981 Laguna Beach rape and murder only because his lawyer botched his defense and the prosecutor withheld important evidence.

“The prosecution’s job is not to seek a conviction,” federal Public Defender Quin Denvir, one of Thompson’s attorneys, argued during Friday’s hearing. “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.”

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

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

“He had a fair trial,” she said. “He got on the stand and revealed himself for what he is--a rapist-killer.”

A clerk of the appeals court said Friday that a decision was anticipated by Monday.

Unless he receives a stay, Thompson, 42, will be the fifth man to be executed in California since the death penalty was restored. He is set to die at 12:01 a.m. Tuesday.

But unlike the four who preceded him to the execution chamber, Thompson has maintained his innocence every step of the way.

His protests have garnered support from some clergy, politicians and seven former prosecutors who say his case does not meet the death penalty standard.

Thompson was convicted of raping and murdering Ginger Fleischli, 20, a Newport Beach woman whose bound body was found in a shallow grave near El Toro Marine Corps Air Station in Orange County. Thompson and two friends had bar-hopped with Fleischli the night of her murder, and Thompson testified that he and Fleischli had consensual sex before he passed out under the influence of alcohol and hashish. He said 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 they say 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 during 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 before 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.

He 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.

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.

Denvir also argued that Jacobs presented different and contradictory theories to the two juries that delivered verdicts against Thompson and Leitch.