State Justices Refuse to Postpone Inmate’s Execution

Knocking down a possible obstacle to California’s next scheduled execution, the state Supreme Court on Wednesday rejected claims that Thomas Martin Thompson is innocent of rape and possibly even the murder that landed him on death row.

The court voted 6 to 1, with Justice Stanley Mosk the lone dissenting vote, to deny a request to delay Thompson’s Aug. 5 execution and hold a hearing into the 1981 murder in Orange County of Ginger Fleischli.

The decision pushes Thompson ever closer to a date with death, but his attorneys said they will press their last-ditch appeal in the federal courts, and expressed hope that Gov. Pete Wilson might grant clemency.

“I’m disappointed that it was given such short shrift,” said Quin Denvir, the attorney representing Thompson. “When you look at the strength of these arguments and the pending execution date, you’d think they would have heard it.”

Thompson and his attorneys could face a barrier to a federal appeal in a new law that restricts state prisoners to a single such appeal, with narrow exceptions.

In Thompson’s first federal appeal, his death sentence was overturned by a federal judge, but reinstated last year by the U.S. 9th Circuit Court of Appeals.

Prosecutors said Wednesday’s Supreme Court ruling demonstrates once again that Thompson is guilty and deserves to die for his crimes.

“His attorneys are trying to create doubts where there are none,” said Holly Wilkens, the supervising deputy state attorney general who has fought Thompson’s appeals. “They’re turning to the court of public opinion because the courts have consistently turned them down.”

During his trial, Thompson testified that after an evening of bar-hopping with Fleischli, he had consensual sex with her, then passed out and slept until morning. But two jail inmates quoted him as saying he raped her, then killed her to keep her quiet.

Defense attorneys argued in legal papers filed with the Supreme Court that a second defendant in the case, David Leitch, walked in on Thompson and Fleischli having what appeared to be consensual sex in the Laguna Beach apartment the night she was murdered.

It was Thompson’s conviction on a charge of rape that added a “special circumstance” to his conviction for murder and put him on death row. His lawyers contend that Leitch’s statement proves there was no rape, and thus, no motive for murder. Prosecutors argued at Thompson’s 1983 trial that he murdered the woman to cover up the rape.

In their latest appeal to the state Supreme Court, Thompson’s attorneys also presented declarations saying the defense lawyer for Leitch and a sheriff’s investigator recall hearing a similar story before Thompson was put on trial.

They also argued that prosecutors were aware of Leitch’s statements to this effect but didn’t reveal the evidence as required by law.

Leitch, who was convicted of second-degree murder in the case, made his first public statements casting doubt on the rape during a January 1995 parole hearing.

Prosecutors countered in written arguments to the Supreme Court that Leitch never voiced a word to investigators about seeing the couple engaged in sex before Fleischli was stabbed to death.

Leitch told his own attorney about seeing the couple together in the apartment, but only after Thompson’s trial concluded, prosecutors said. The investigator who remembered hearing a story about Thompson and Fleischli having consensual sex did not hear it from Leitch, but in a conversation with a deputy district attorney about claims made by a jailhouse informant, prosecutors said.

Prosecutors also raised serious questions about the credibility of Leitch, who told investigators two different stories about what occurred the night of the murder. They argued that his testimony would have been discounted by the jury that found Thompson guilty.

In addition, they said Leitch’s story probably would not have been admissible in court because it was hearsay evidence. And his eyewitness account, even if true, was fleeting at best and unreliable, they said.

“Such a brief observation hardly rises to the level of evidence demonstrating whether or not the victim consented to sexual intercourse with Thompson and falls far short of permitting such opinion testimony in evidence,” prosecutors said in court papers.

“Even if true, the most recent scenario from Leitch involves an observation readily subject to misinterpretation on his part.”

Prosecutors also argued 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.

Leitch said during the 1995 parole hearing that Fleischli was not screaming when he came upon the pair, but prosecutors argue that her mouth might have been covered with duct tape.

They also said that all the evidence points to rape. Fleischli’s body was found a few days after her disappearance in a shallow grave in a grove of trees at an Irvine nursery. Her bra and top were cut open. Her head was wound in duct tape and her body was wrapped up by a sleeping bag, blanket and rope.