High Court Leery of Bid to Spare Killer

Four months after the U.S. 9th Circuit Court of Appeals blocked California’s planned execution of a Laguna Beach murderer, the Supreme Court questioned Tuesday whether the appellate judges intervened belatedly and without proper legal authority.

Was it merely “sloppiness and carelessness” that caused the appeals court to intervene just one day before the execution? wondered Justice Ruth Bader Ginsburg.

Was the delay due to sheer “ineptitude . . . by two judges who hadn’t read their e-mail?” asked Justice Anthony M. Kennedy.

Or instead, was it a deliberate bid by the liberal San Francisco-based court to make an end-run around the limits on death penalty appeals set by the Republican Congress and the conservative-dominated high court, as other justices suggested.

“The whole thing was quite unseemly,” said an obviously irritated Justice Antonin Scalia.

The high court will rule by June on the fate of Thomas Thompson, 42. He had been scheduled to die Aug. 5 for the 1981 rape and murder of 20-year-old Ginger Fleischli of Newport Beach.

If the justices, uncharacteristically, uphold the 9th Circuit decision, Thompson’s life will be spared, although he will remain in prison. If the court concludes that the appellate court overstepped its bounds, Thompson will probably face a new execution date within a month or two after the justices deliver their decision. He would be the fifth California inmate to be executed since voters restored capital punishment 20 years ago.

In those two decades, the U.S. Supreme Court and the 9th Circuit have repeatedly clashed over the death penalty. In 1992, the state carried out its first execution since the 1960s with the electrocution of Robert Alton Harris, but only after the high court reversed four stays handed down by the 9th Circuit on the eve of the execution.

The California Supreme Court upheld Thompson’s conviction and his death sentence in 1988.

According to trial testimony, Thompson and Fleischli had bar-hopped with friends in Laguna before the pair returned to his apartment Sept. 11, 1981. A few days later, her body was found in a shallow grave near Interstate 5 wrapped in a blanket from the apartment. She had been stabbed five times, and her wrists were badly bruised. Thompson was later arrested in Mexico. A pair of handcuffs were found in his car.

While the state high court signed off on his death sentence nearly a decade ago, Thompson has stayed alive through appeals in federal court.

In 1995, a U.S. district judge, in a decision that removed Thompson from death row, voided his death sentence by ruling that there was insufficient proof that he had raped Fleischli. The judge also said Thompson had been poorly served by his trial attorney in defending him against the rape charge, which was the special circumstance that made him eligible for execution.

But a three-judge panel of the 9th Circuit reversed that decision in 1996. In March of this year, a request by Thompson’s lawyer for a rehearing by that court was denied.

In April, Thompson’s lawyer filed a final appeal to the U.S. Supreme Court, but it was rejected in June. With the inmate’s federal appeals complete, Orange County Judge Robert Fitzgerald set Thompson’s execution date.

However, in a highly unusual move, the 9th Circuit convened an 11-judge panel to meet Aug. 1. Two days later, less than 36 hours before the execution, the appeals court announced that it was revoking its own final ruling from March and voiding Thompson’s death sentence.

The 7-4 opinion did not conclude that he was wrongly convicted of Fleischli’s murder. Rather, it said his lawyer had not done enough at his 1983 trial to persuade the jury that she had not been raped before her death. Thompson had maintained that the two had consensual sex before her murder.

The 9th Circuit majority said that had his lawyer persuaded the jury that no rape occurred, Thompson would have received a long prison term, not a death sentence.

On Tuesday, the Supreme Court was not interested in retrying Thompson; the facts of his case went unmentioned. Instead, the hourlong argument focused on the peculiar procedural aspects of the case.

“It is a rather messy story,” said Los Angeles attorney Gregory A. Long, who represented Thompson.

In August, the 9th Circuit Court explained that two judges had wanted to vote in March to reconsider the final ruling rejecting Thompson’s claims but that they failed to respond before the deadline for reconsiderations had expired.

With 18 judges scattered across the nine states of the Western region, the 9th Circuit justices try to keep track with their computers of the thousands of cases moving through the system. If a majority of them signal an interest in reconsidering a ruling by a three-judge panel, they can call for convening an 11-member panel.

“Due to this procedural misunderstanding within our court,” the 11-member panel did not convene when it should have in Thompson’s case, wrote Judge Betty B. Fletcher of Seattle. In this “exceptional circumstance,” the appeals court is empowered to revoke its own final order and reopen a case, she wrote.

Urging that this decision be reversed, California Deputy Atty. Gen. Holly D. Wilkins told the justices Tuesday that Thompson’s lawyer “simply wants to re-litigate the same claims based on the same facts.” Thompson’s appeals have been in federal court for nearly a decade and should be ended, she said. The state deserves “finality,” she said.

Disagreeing, Long called the reopening of Thompson’s case a “once-in-a-decade circumstance,” not the beginning of a new means of avoiding limits on death penalty appeals. “There was only 53 days of delay” from the final order until the 9th Circuit intervened, he added.

“53 days! It was 53 days after seven years,” said Kennedy, who, clearly irked, also said: “In this case, the court of appeals waited until this court acted, waited until the state had mobilized its moral will to carry out the execution, waited until after there was very careful clemency review by the governor . . . and then, because two judges hadn’t read their e-mail, said that should stop the process.”

In late July, Gov. Pete Wilson said he devoted two days to reviewing Thompson’s case and speaking to lawyers on both sides.

In his written decision rejecting clemency, Wilson said Thompson had maintained his innocence through “an inherently incredible and contradictory alibi.”

After having sex with Fleischli, Thompson says, he fell asleep. Lying a few feet away, she was stabbed five times and her body wrapped in a sleeping bag, towel and duct tape. The body then was removed and most of the blood cleaned from the floor. Thompson says that when he awoke, she was gone, and that he knew nothing of her death.

The high court will meet later this week to vote on the case of Calderon vs. Thompson, 97-215. (Arthur Calderon is warden at San Quentin.)