Appeals Court Halts Thompson Execution

Acting to prevent what it called “a manifest injustice,” the 9th U.S. Circuit Court of Appeals reversed itself Sunday and halted the scheduled execution of Thomas M. Thompson for the 1981 rape and stabbing death of a young woman in Laguna Beach.

The 42-year-old former boat repairman had been scheduled to be put to death by lethal injection just after midnight tonight at San Quentin State Prison.

But in an unusual 65-page ruling that followed three days of deliberations, the appeals court said “a grave question exists whether he is innocent of the death-qualifying offense, the alleged rape.”

The decision was appealed to the U.S. Supreme Court on Sunday evening, according to a spokesman for California Atty. Gen. Dan Lungren. In a statement, Lungren said he hopes the high court will act quickly so the execution can go forward as scheduled early Tuesday.

“The people of California--most importantly the victim’s family--should not have to wait any longer for justice to be served,” he said.

In its decision, the full 9th Circuit court called the circumstances surrounding Thompson’s trial, conviction and heretofore unsuccessful appeals “extraordinary.” It said its own three-judge panel should not have reinstated Thompson’s death sentence in September.

In Sunday’s 7-4 decision, the judges wrote: “The panel appears to have made fundamental errors of law that if not corrected would lead to a miscarriage of justice.”

They also wrote that “the consequence of our failure to act would be the execution of a person as to whom a grave question exists” about guilt in the alleged rape--the conviction that made Thompson subject to the death penalty--”and whose conviction on the first-degree murder charge may be fundamentally flawed.”

The flaw, the judges wrote, may be that Thompson’s trial lawyer failed to challenge the veracity of a “notoriously unreliable” jailhouse informant. Two informants testified at Thompson’s trial that he had confessed to them while he was in custody.

Ronald G. Brower, Thompson’s lawyer at the time, could not be reached Sunday for comment.

The appellate judges Sunday also criticized the prosecution in the rape-murder, saying that “a serious question exists as to whether Thompson was deprived of due process . . . by the prosecutor’s presentation of flagrantly inconsistent theories, facts and arguments to the two juries that separately heard Thompson’s case, and that of his co-defendant, David Leitch.”

*

The case presented by Orange County Deputy Dist. Atty. Mike Jacobs “may well have resulted in Thompson’s receiving a fundamentally unfair trial,” the judges wrote. “These tactics, including the use of the two highly dubious jailhouse informants, appear to compound the constitutional violations that flow from the defense counsel’s ineffective performance.”

The appeals court made clear that its decision was not based on “any new evidence offered by Thompson.” Rather, “we act now because we have concluded that the interests of justice require us to afford Thompson [a review by the entire appeals panel] that we should have initiated immediately.”

Thompson has steadfastly denied raping and killing Ginger Fleischli, 20, who bled to death after she was stabbed in the ear and head several times with a 4-inch fishing knife. Thompson testified that he was passed out from a night of heavy drinking and hashish smoking at the time of the murder.

During the appeals process, his lawyers argued that the woman’s ex-boyfriend, David Leitch, had seen Thompson and Fleischli having consensual sex, an observation that Leitch shared with his attorneys but one that had been concealed from Thompson’s defense team for 15 years. Leitch owned a fishing knife that was missing after the slaying.

Leitch was convicted in 1985 of second-degree murder in a separate trial; he is serving a sentence of 15 years to life.

Andrew Love, one of Thompson’s attorneys, said his client may still face execution if the high court reverses the appellate judges’ decision, as the state has requested.

“There is no reason for this rush to the U.S. Supreme Court,” Love said, “because if the U.S. Supreme Court thinks some of the case is wrong, they can reset an execution date.”

In the past year, the Supreme Court reviewed 29 cases from the 9th Circuit, which covers nine Western states. It reversed 28 of them. In nearly two-thirds of those, the reversal was unanimous.

Last year, a three-judge 9th Circuit appeals panel reinstated Thompson’s death sentence after it had been reversed by U.S. District Judge Richard A. Gadbois Jr., who had agreed that Thompson had been poorly represented by his trial lawyer.

Thompson then filed an appeal with the U.S. Supreme Court, which declined to hear it. Thompson’s lawyers next returned to the 9th Circuit and pointed out that the full appeals court had not reviewed the three-judge panel’s ruling, a procedure that he was entitled to. The court agreed and this weekend conducted the review, leading to Sunday’s decision.

The court said Sunday of its new thinking: “We affirm the part of [Gadbois’] order granting Thompson’s writ with respect to the rape conviction and rape special circumstance charge and vacating his death sentence.

“Because of the exceptional circumstances surrounding our handling of the appeal . . . and because we are convinced that the panel committed fundamental errors of law that would result in manifest injustice, we now . . . reverse the panel’s decision.”

Thompson would be the fifth inmate executed in California since 1992, and arguably the most controversial. Donald A. Heller, the Sacramento attorney who wrote the death-penalty initiative overwhelmingly approved by voters in 1978, has said: “This case leaves me with a very unsettling feeling in the pit of my stomach.”

Gov. Pete Wilson blasted Sunday’s ruling, saying the judges “have gone out on a procedural limb and blocked at the eleventh hour the execution of a convicted murderer.” He added, “I call upon the U.S. Supreme Court to reverse this . . . effort by a liberal clique of the 9th Circuit.”

Wilson rejected Thompson’s plea for clemency, saying that the bruises on Fleischli’s arms, clearly observable in photographs, had persuaded him of Thompson’s guilt.

Among the four dissenters in the appeals court’s Sunday ruling was Andrew J. Kleinfeld, an appeals judge in Fairbanks, Alaska. “I do not think the majority’s attack on defense counsel is fair. Thompson was sentenced to death because he raped and murdered Ginger Fleischli, not because he had a bad lawyer.”

*

Lungren spokesman Robert Stutzman said his office argued that the 9th Circuit had already ruled on this matter and the U.S. Supreme Court has already refused to hear the appeal.

At a hearing Friday, Stutzman said the state “had the odd occurrence of the 9th Circuit meeting at the eleventh hour and deciding to reverse itself.”

The 9th Circuit has a reputation as a liberal-leaning panel that often fares poorly before the more conservative high court, but this year’s reversal rate was the highest in at least a decade.

The 9th Circuit is by far the largest of the 12 regional appeals courts in the federal system. Its 19 active judges, usually sitting in panels of three, hear appeals from federal trial courts in California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

Thompson, after learning of the decision, was “optimistic but cautious about it,” his attorney said.

“It’s been quite a roller coaster for him. First, he had a reversal and then that was taken away from him, and then we had another reversal and now, we’re hoping that it will stick.”

Times staff writer David Reyes contributed to this report.