Supreme Court Will Review Thompson Case

The machinery of the state’s execution process slammed to a halt Monday, just six hours before Thomas M. Thompson’s scheduled death, when the U.S. Supreme Court agreed to review the 1981 Laguna Beach rape and murder case that landed the convict on death row.

A day after the U.S. 9th Circuit Court of Appeals blocked the execution order, the Supreme Court rejected the state attorney general’s request to resume the execution, breathing new life into Thompson’s hope of proving his longtime claim of innocence.

At San Quentin State Prison, officials had followed their execution countdown procedures up until 6 p.m., when word arrived from the high court in Washington.

The news came just before Thompson was to be moved to the death watch cell. “He had already said his fond farewells to friends and family,” Lt. Joy Macfarlane, a prison spokeswoman, said during a quickly assembled news conference announcing the court’s decision. “Some friends have not gotten the word yet.”

The prisoner’s last meal--Alaskan king crab, spareribs and a hot-fudge sundae--was not served, and instead of being walked to the death chamber, he was returned to his cell on death row.

Greg Long, Thompson’s attorney, estimated that it would be spring of 1998 before the Supreme Court takes up the case for oral arguments.

“This is a very good victory,” said a jubilant Long. “The Supreme Court is not going to hurry. We can take some real comfort from that.”

Thompson was convicted of the 1981 rape and murder of Ginger Fleischli in Laguna Beach, but for the past 16 years has steadfastly maintained he is innocent.

Atty. Gen. Dan Lungren seethed over the turn of events, saying the appellate decision was a product of “judicial hyperactivism.”

Lungren called the decision a message to crime victims that “justice delayed is tough luck for you.” The attorney general was equally unsparing in his remarks about the appropriateness of the penalty for Thompson.

“He has lied again and again and again,” Lungren said. “This guy is a rapist and a murderer and a liar and he has received the protection of second-guessing.”

Fleischli’s family could not be reached for comment Monday night, but in recent days had expressed bitterness and anger that the focus of attention had shifted from the victim to the convicted.

“We had no voice in the verdict nor the sentencing of those found responsible for taking her life,” Jack E. Fleischli, her father, said Friday. “It should be obvious that we especially had no voice in the 15-year delay in carrying out this sentence. Any value that our opinions had regarding Ginger’s life were completely lost the day she was murdered.”

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Thompson had been scheduled to be put to death by lethal injection at 12:01 a.m. today, but a last-minute ruling Sunday by a federal appeals court had left that in question. The U.S. Supreme Court then took on the case.

As the high court weighed the inmate’s fate Monday, Lungren’s office had ordered the Department of Corrections to remain on a high state of readiness, anticipating that the justices would allow the execution as scheduled.

At 8 a.m. Monday, Thompson began meeting with visitors. Long said Thompson was visited by his mother, a sister and nieces. Thompson has had “a very active visitors list” in recent weeks as well, Macfarlane said.

Thompson also conferred throughout the day with his attorneys in a second, more private area. Long said Thompson had remained optimistic that he would be spared and granted a new courtroom chance to prove his innocence.

“He was joking with people. He was the usual Tom,” said Long. “His feeling was, why give in to despair. You’ve got to think the glass is half-full.”

Acting just 32 hours before Thompson was scheduled to die, the U.S. 9th Circuit Court of Appeals on Sunday made the dramatic decision to block the execution. The appeals court threw out Thompson’s rape conviction, expressing concerns about the fairness of his 1993 trial and saying he was poorly represented by his original defense attorney, Ronald G. Brower.

Thompson’s murder conviction carried a special-circumstance allegation of rape, which made him subject to a death sentence.

The Supreme Court will now consider two points: whether the appeals court, in agreeing to reconsider Thompson’s appeal, made an improper end run around a new federal death penalty law that generally limits prisoners to a single federal appeal; and whether the appeals court was allowed to revive the case after the normal time for review had expired.

Thompson’s attorneys insist that their client never raped Fleischli and may not have killed her, citing new evidence they contend was withheld by prosecutors at the time of his trial. They argued that the real killer was David Leitch, Fleischli’s sometime lover who had a history of violence and had threatened the 20-year-old woman.

At his trial, Thompson testified that he and Fleischli went to his Laguna Beach apartment after a night of bar-hopping with Leitch and Leitch’s ex-wife, Tracy. He also said that he and Fleischli had consensual sex before he passed out from the effects of alcohol and hashish.

Fleischli bled to death that same night after she was stabbed five times around the ear with what appeared to have been a 4-inch fishing knife.

Two years after Thompson was convicted and sentenced to death, his roommate, Leitch, also was convicted of murder for her slaying, sentenced to 15 years to life, and is now eligible for parole.

Leitch owned a fishing knife that was missing after Fleischli’s slaying. In addition, Leitch’s shoe print was discovered, along with a second shoe print that was never identified, near a shallow grave in an Irvine nursery where Fleischli’s partially buried body was discovered.

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The case has drawn widespread media attention and has reinvigorated the foes of capital punishment in California. In addition, seven prominent former prosecutors--including the author of California’s death penalty statute--weighed in on Thompson’s behalf during the legal battle for his life, arguing that the government’s case lacked the unalterable certainty needed to justify an execution.

Those who prosecuted Thompson called the claims nonsense, saying evidence of his guilt was overwhelming.

They say his alibi--that he slept through a murder--is impossible to believe. They note that Fleischli’s blood soaked through the carpet five feet from where Thompson says he slept in a Laguna Beach studio apartment.

In addition, Fleischli’s wrists bore bruises and Thompson was arrested with handcuffs in his possession. Her bra had been cut in front and pulled down over her arms.

Defense lawyers have countered that the physical evidence of rape wasn’t compelling, that an independent pathologist suggested the bruises weren’t from handcuffs, and that Fleischli appeared to have cleaned herself after sex.

They said the two jailhouse informants who testified against Thompson were proven liars. They also theorized that Fleischli’s blouse and bra probably had been cut open by Leitch, her former boyfriend, suggesting he returned to the apartment as Thompson slumbered and began an argument that led to a killing.

But mostly the defense team battered the performance of Thompson’s trial attorney, attacking Brower’s reluctance to aggressively fight the rape charge.

In 1995, a conservative U.S. district judge appointed by President Reagan threw out the rape conviction and death sentence, concluding that Thompson’s defense had been inadequate. The case against Thompson, he said, gave him “an unsettling feeling.”

But scarcely a year later, a three-judge panel with the U.S. 9th Circuit Court of Appeals reinstituted the death sentence, saying the lawyer’s deficiencies during trial weren’t enough to make a difference against the prosecution’s case. That decision was upheld by the U.S. Supreme Court earlier this year.

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Thompson’s attorneys continued to press their appeals, and on the second go-round the 9th Circuit court did the judicial equivalent of a 180-degree turn Sunday.

In addition to throwing out the rape conviction, the appeals court also criticized the earlier decision by its own three-judge panel, saying it was legally flawed and subsequently mishandled by the court as a whole.

In a 7-4 decision, the 9th Circuit judges said Thompson’s trial lawyer, Brower, 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.

The appellate judges also criticized the prosecution of Thompson, singling out Deputy Dist. Atty. Michael A. Jacobs. They said a serious question remains whether Thompson was deprived of due process rights by the prosecution’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, Leitch.

In Thompson’s trial, he was portrayed by prosecutors as a lone killer motivated to cover up a rape. In Leitch’s trial, the prosecution said Leitch masterminded the crime and may have been present when it happened.

The 9th Circuit court’s ruling was blasted by Gov. Pete Wilson and Atty. Gen. Lungren, who suggested that it was the product of the court’s liberal wing. The 9th Circuit has a reputation as a liberal-leaning panel that often fares poorly before the more conservative high court.

Times staff writers J.R. Moehringer, Dan Morain and David Savage and the Associated Press contributed to this report.

* JUDICIAL TENSIONS

9th Circuit decision could strain relations with high court. A20