New Evidence Given to Stay Execution

Hoping to block California’s next scheduled execution, defense attorneys handling a 16-year-old murder case unveiled new evidence Thursday they say suggests Thomas Martin Thompson is innocent of rape and possibly even the killing that put him on death row.

Thompson’s attorneys filed a petition with the state Supreme Court asking that his Aug. 5 execution be delayed and calling for a new hearing into the 1981 murder of Ginger Fleischli in Orange County.

They contend in court papers that a second defendant in the case, David Leitch, says he walked in on Thompson and Fleischli having what appeared to be consensual sex in the Laguna Beach apartment where she was murdered.

Leitch, who was convicted of second-degree murder in the case, quietly made that revelation during a routine January 1995 parole hearing. But defense attorneys say they only recently discovered the new information while reviewing a transcript of the parole hearing.

Thompson’s attorneys also presented declarations saying the defense lawyer for Leitch and a sheriff’s investigator recall hearing a similar story after the murder, though it never surfaced during Thompson’s 1983 trial. A jury found Thompson guilty after eight hours of deliberation.

Details about the rape are crucial because it was that accusation that added a “special circumstance” to his murder conviction, thereby landing him on death row.

The filing also charges that prosecutors failed to reveal the exculpatory evidence to Thompson or his attorney, violating his rights to due process and a fair trial.

“Had this information been disclosed earlier, it is reasonably probable that the result . . . would have been different, in that [Thompson] would have been acquitted, granted a new trial” or seen his conviction overturned on appeal, defense attorneys said in their court papers.

Prosecutors said that Thompson’s lawyers are simply putting a new spin on old facts and that they fully expect the courts to shoot down the last-ditch legal maneuver.

“They don’t seem to grasp how compelling the evidence was against him,” said Holly Wilkens, the deputy attorney general supervising the case against Thompson. “They’ve made these new claims, and they’re a new twist, but it doesn’t change anything.”

According to the court papers, Leitch has said on several occasions that he saw Thompson and Fleischli engaged in consensual intercourse the night she died.

He made the statement at least once during a discussion with an Orange County sheriff’s deputy investigating the case, the court papers said, and later told his trial attorney, Ronald P. Kreber, now a judge in Orange County Municipal Court. Leitch repeated the statement again, under oath, at his parole hearing in 1995.

Despite the “critical nature of this evidence in undermining the prosecution’s theory that Thompson had raped Fleischli and killed her to conceal the rape,” it was never disclosed to Thompson’s attorneys, the filing says.

Thompson’s attorneys also make a second new claim--that a juror at his trial failed to disclose background information that might have led to her being excused from the panel. According to Thompson’s attorneys, the juror failed to reveal that she had been sexually abused by her father, a fact that was relevant because Thompson was charged with a sex crime.

Her failure to disclose her background “deprived [Thompson] of a fair trial by an impartial jury,” his attorneys contend.

In addition to their new claims, Thompson’s attorneys revived old challenges to his conviction and sentence. Among these are their assertions that there was no solid medical evidence of rape and that two jailhouse informants who said Thompson admitted raping and killing Fleischli had a history of telling lies in exchange for favorable treatment by authorities.

According to the court papers filed Thursday, Leitch said he went out drinking with a friend on Balboa Island the night Fleischli died. When the bar they were patronizing closed, he returned to a Newport Beach apartment where he and Thompson were staying and, from the entry hall, saw Thompson and Fleischli engaging in consensual sex on the floor.

“There was nothing to indicate that Thompson was raping Fleischli,” the court documents say, noting that she was not screaming. So Leitch left the apartment, went to the beach and returned sometime later, the court documents say.

Thompson’s attorneys contend that such statements are reliable because Leitch would have no reason to lie about this circumstance of the crime. “This fact is not self-serving and does nothing to exonerate Leitch,” the documents say.

The attorneys also argue that Leitch’s statements provide “substantial corroboration” of Thompson’s version of events--that he had consensual intercourse with Fleischli and then fell asleep.

Thompson’s lawyers say that Leitch’s statement proves there was no rape and thus no motive for murder.

Wilkens said there are numerous problems with the new story.

“They’re trying to give credibility to this man’s crime partner,” Wilkens complained. “The man was convicted of second-degree murder. He’s told a variety of stories. Why would anyone believe him?”

She said that Leitch’s version puts Thompson and Fleischli in the middle of the room, contradicting Thompson’s account during trial, when he said they were having intercourse on a bunk at the edge of the studio apartment.

Moreover, Leitch “may have seen two people having intercourse, but how does he know it was consensual?” Wilkens also said that all the evidence points to rape. Fleischli’s body was found in a shallow grave, her bra and top cut open.