O.C. Man on Death Row: Justice Awry?

How could it be? Is it possible Thomas Martin Thompson doesn’t deserve to die?

The convicted murderer and rapist is slated this summer to become the fifth man executed in California since the state resumed capital punishment in 1992. Today, a judge in Orange County will formally set his date with death for sometime in the next 30 to 60 days.

It will come none too soon for the family of Ginger Fleischli, the 20-year-old woman Thompson was convicted of killing in a Laguna Beach apartment in 1981. They have no doubt that Thompson, now 42, should die.

The jury that in 1983 returned a verdict against him after just eight hours of deliberations had no doubts, nor did the prosecutors who have unrelentingly pushed for his execution.

“We feel there is no doubt we have the right individual, that he is guilty of those crimes,” said Matt Ross, a spokesman for state Atty. Gen. Dan Lungren.

But there are some who contend the government’s case against Thompson is an example of justice gone awry.

Unlike the four men who have preceded him into San Quentin’s death chamber, Thompson has steadfastly maintained his innocence. Unlike those previous four, he has no prior history of arrest or violence. And unlike the others, he was not convicted of a crime involving multiple victims.

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Thompson’s appeals have been exhausted all the way up to the U.S. Supreme Court. Although his attorneys are investigating other legal avenues, Thompson’s last hope will rest with getting clemency from Gov. Pete Wilson.

His defense team says there remains substantial doubt that Thompson is the killer.

“I think this is a gut check for everyone, whether you are for or against the death penalty,” said Quin Denvir, the federal defender who represents Thompson. “Despite all the efforts of the criminal justice system, we may be executing a man who might have committed no crime at all.”

Thompson’s defenders contend the evidence points to David Leitch. He had known Fleischli for years, had an on-and-off romantic link to her, had a motive to kill, had previously threatened her and was tied to the crime by a substantial amount of physical evidence.

Leitch, whose shoe print was discovered near Fleischli’s partially buried body in a grove of trees at an Irvine nursery, was convicted in 1985 of second-degree murder in a separate trial in the Fleischli case and is serving a sentence of 15 years to life.

Through the years of appeals, Thompson’s lawyers have argued that he was denied a fair trial because his defense attorney failed to wage an aggressive fight against the rape charge. That additional “special circumstance” crime allowed prosecutors to seek the death penalty.

U.S. District Judge Richard A. Gadbois Jr. of Los Angeles agreed that Thompson had been poorly served. Gadbois, a Ronald Reagan appointee, studied the case for five years--reviewing more than 7,000 pages of legal documents--before overturning the rape conviction in 1995.

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While confident that both Thompson and Leitch had a role in Fleischli’s death, Gadbois said the prospect of an execution resulting from such a clouded case left him with “an unsettling feeling.”

A federal appeals court overturned Gadbois’ ruling, and earlier this month, the U.S. Supreme Court upheld the appellate decision without comment.

But Thompson has won other unusual backers. Seven former prosecutors, among them the draftsman of California’s death penalty statute, have argued in a “friend of the court” brief that Thompson does not deserve to die.

They suggest prosecutors offered inconsistent versions of the same crime in the trials of Thompson and Leitch. Thompson was portrayed as a lone killer in his trial, but prosecutors switched stories and described Leitch as the instigator in the second trial.

“We generally believe in the imposition of the death penalty in an appropriate case,” the former prosecutors said in their legal brief. But they added that “this is a case where it appears that our adversarial system has not produced a fair and reliable result.”

The slaying stemmed from friendships both old and new.

Fleischli and Leitch had known each other for years, and had a brief romantic relationship before he got married in 1978. When the marriage failed in 1981, Leitch and Fleischli got back together at the Ocean Front apartment where she ultimately was killed.

After a few months, Fleischli moved out. It was three weeks before her murder. About that same time, Thompson began staying at the apartment.

Leitch had just met Thompson, and they were crafting a quixotic plan to get a boat and transport refugees out of war-torn Southeast Asia in exchange for gold. A longtime friend of Leitch’s later testified that Thompson vowed to kill anyone who got in the way of the plan.

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On the night of the killing, Thompson and Leitch met with Fleischli and some other friends at a Newport Beach pizza parlor. What followed was an evening of drinking beer, whiskey and rum, topped off with smoking hashish, as they barhopped in Laguna Beach.

Fleischli and Thompson ended up alone at the apartment. Prosecutors said during his trial that Thompson raped Fleischli, then killed her to cover up a crime that could have ruined his plans to smuggle refugees.

Thompson told a different story during the trial. He admitted to having sex with Fleischli, but said it was consensual and that he then passed out and slept until morning, oblivious to whatever occurred in the apartment.

Fleischli was stabbed five times around the right ear with a single-edge knife. Four of the wounds were superficial, but one cut her carotid artery. She bled to death. Leitch owned a single-blade fishing knife that was missing after the murder.

Fibers found on the body at the grove were similar to the apartment’s carpet. Matching fibers were also found in the trunk of Leitch’s car.

During the trial, the prosecution put two jailhouse informants on the stand who said Thompson confessed to raping and murdering Fleischli.

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In the appeals that followed, Thompson’s lawyers argued that his defense attorney failed during the trial to challenge the credibility of the two key jailhouse informants, who had reputations for trading information for favorable treatment.

One of them, Edward Fink, was known to the Orange County district attorney’s office as a heroin user and an “unreliable operator,” according to court papers, and the other one had been called a pathological liar by his father and brother.

Leitch’s ex-wife, Tracy, also provided damning testimony against Thompson that was later called into question.

She testified that Fleischli asked her on the night of the murder whether Thompson would kill her. It was important evidence, prosecutors argued, because Fleischli never would have consented to sex with Thompson because she feared him.

But when she was later recalled as a witness, the ex-wife admitted that Fleischli had said something quite different. She testified that Fleischli actually had asked whether Leitch “would have Tom kill me.”

Thompson’s attorneys also argue that Leitch had a motive to get rid of Fleischli--she was interfering with his efforts to reunite with the ex-wife, who was on the verge of receiving a sizable personal injury award.

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Moreover, Leitch had threatened Fleischli previously. Ten days before the killing, a Laguna Beach police officer helped Fleischli move her clothes out of the apartment, and she told him that Leitch had threatened to kill her.

Thompson’s attorneys also argue that there was no compelling physical evidence to suggest that a rape occurred.

The Orange County coroner testified that Fleischli had no anatomical evidence of rape but had suffered bruises on her wrists and legs just before her death. A sheriff’s investigator said one wrist bruise appeared to have been caused by handcuffs.

When Thompson was arrested, he had handcuffs in his possession, and the prosecution pointed the coincidence out to the jury.

A defense pathologist who could have helped Thompson’s case was never called on at the trial.

Thompson’s attorney, Ron Brower of Orange County, argued during a subsequent appeal hearing on the case before Gadbois that his strategy was to focus on getting his client off on the main charge of murder.

The pathologist, testifying in the appeal hearing, offered testimony that might have helped Thompson escape the rape conviction.

He said that the handcuffs would not have left the marks that were found and that most of the other injuries had occurred well before Fleischli’s death.