A Rare Death-Row Case With Guilt Still Being Debated

It has been five years since we Californians began anew the business of executing the murderers among us. The state has dutifully put to death four men, heinous criminals all. Now comes Thomas M. Thompson.

His sentence seems to fit the crime--the rape and brutal murder of a Newport Beach woman not yet 21. But one nagging uncertainty remains as Thompson nears his fate. Unlike the four men who preceded him to California’s death chamber, Thompson claims he is innocent.

Thompson, slated to die by lethal injection Aug. 5, is by no means the first convicted killer to deny guilt on his way to execution. But the peculiarities of his case have sowed doubts in the minds of many.

Citing new evidence they claim was withheld by prosecutors at the time of his trial, Thompson’s attorneys insist their client never raped Ginger Fleischli and might not have killed her.

“This is the first time where a legitimate question of a man’s innocence has come forward,” said Jeff Gillenkirk with the anti-capital punishment group Death Penalty Focus of California. “This is a classic case for clemency.”

His legal appeals virtually exhausted, Thompson’s fate now rests in the hands of Gov. Pete Wilson, who is pondering pleas that the death sentence be nudged down to life in prison without the possibility of parole. The prospects appear slim. Wilson has long been a drum beater for victims rights, not death row inmates.

Those who prosecuted Thompson, now 42, call the claims of innocence nonsense, saying evidence of his guilt remains overwhelming. They say his alibi--that he passed out from a mix of booze and hashish and then slept until morning after having consensual sex with Fleischli--is unbelievable. Fleischli’s blood soaked through the carpet of the studio apartment five feet from where Thompson says he slept.

The controversy has reinvigorated foes of the death penalty, whose voices had been muted in California since the 1992 execution of Robert Alton Harris put the state’s death chamber back in operation. They have mounted an aggressive publicity campaign, enlisting sympathizers ranging from Hollywood stars to former New York Gov. Mario Cuomo and Cardinal Roger M. Mahony, archbishop of Los Angeles.

It has attracted some remarkable supporters. Seven former prosecutors--including the author of California’s death penalty law--have weighed in on Thompson’s behalf, arguing that the government’s case against him lacked the indisputable certainty needed to justify an execution.

Nearly lost in the 11th-hour drama have been Fleischli and her family, who have waited 16 years for her murderer to be punished. They have been left in disbelief, aghast that the tedious process they have so painfully watched is coming to a carnival conclusion.

“It makes me feel bitter,” said Jack Fleischli, an older brother of the victim. He remains convinced of the condemned man’s guilt and the need for the ultimate penalty. “Tom Thompson is a liar and a coward. He deserves to die for what he did.”

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In recent days, Pete Wilson has become intimately familiar with the life and crimes of Thomas Martin Thompson. He holds the powers of clemency and is Thompson’s last hope for life.

A staunch law-and-order Republican, Wilson has seen four men executed on his watch. He has studiously reviewed their crimes and histories, coming away with words of sympathy for the victims and ire for the condemned.

But the case against Thompson is a bit different for the governor, a fact his advisors don’t dispute.

Thompson’s predecessors on death row hardly denied their crimes, pleading for mercy because of a damaging childhood or mental illness. Thompson has turned the strategy upside-down, making a case for clemency based on his goodness, not his weaknesses, on innocence, not guilt.

Unlike those executed in California since 1992, Thompson has no prior criminal record or history of violence. He served honorably in the Army and spent some time in college. He worked for a fire department as a photographer. And he has adjusted well to prison life, with one guard declaring Thompson is the only inmate he would trust with his life.

Defense attorneys suggest the real killer might be the co-defendant in the case, David Leitch, Fleischli’s sometime lover and Thompson’s roommate at the time of the murder.

They cite the “incredible” disparity between the sentences meted out for Thompson and his co-defendant, Leitch, who got 15 years to life and is eligible for parole. They also note that two jurors on the panel that recommended Thompson be put to death have changed their minds and now believe he deserves to live.

Jack Fleischli isn’t impressed with Thompson’s squeaky-clean background, saying he is like a freeway speeder who’s only been caught once. “There are lots of cases where seemingly ordinary people get caught doing violent things,” he said. “What did Timothy McVeigh do before Oklahoma City?”

Wilson is spending the weekend studying more than 3,000 pages of petitions, staff reports, legal briefs and letters. Few legal scholars expect him to spare Thompson’s life. “It really means going out on a limb for any political figure in these times,” Stanford law professor Barbara Babcock said.

Clemency is not a routine thing in America. These days, most governors usher through many executions before they spare a life.

The historical record in California is more mixed. Since 1941, 181 executions have occurred, while governors have granted clemency in 41 cases. Many of the cases occurred at a time when death could be meted out for lesser crimes like kidnapping.

But no less an anti-crime zealot than Ronald Reagan posted a 1-and-1 record during his time in the statehouse, sparing condemned murderer Calvin Thomas from San Quentin’s gas chamber in 1967.

Some death penalty foes see hope because of Wilson’s strong stand against crime. “This is like Nixon going to China,” said Stephen Bright, director of the Southern Center for Human Rights. “Pete Wilson is a governor who, given his law-and-order credentials, could grant clemency in this case.”

As Thompson awaits his fate, some legal experts contend his is not the example Californians had in mind when they voted overwhelmingly two decades ago to reinstitute the death penalty.

“It strikes me that this is not the kind of clear-cut case the public wants an execution for,” said Robert Pugsley, a Southwestern University School of Law professor who supports the death penalty. “They want the Dahmers, the Mansons, the monsters among us.”

That sort of death-row triage, putting the worst cases to the front of the line, is a tough act to carry off. Dane Gillette, the state attorney general’s capital case coordinator, said all cases are pressed hard, but some can be held up by the whims of the legal system, be it a balky appellate judge or the inability to find defense counsel.

“How one case moves to the top of the heap over another,” he said, “is anybody’s guess.”

While prosecutors insist that they’ve got their man and Thompson deserves to die, his attorneys suggest it’s too harsh and final a sentence for such a cloudy case.

“We may be executing a man who is innocent,” protests Quin Denvir, one of Thompson’s lawyers. Noting that the condemned man would remain in prison for life even if granted clemency, he added: “Whatever the governor does, this guy will die in prison. It’s just a question of how.”

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In the dozen years Thompson has been on death row, his appellate lawyers have trundled out myriad arguments for why he shouldn’t be put to death.

They said the physical evidence of rape wasn’t compelling, that Fleischli appeared to have douched or cleaned herself after sex. They said two jailhouse informants who testified that Thompson admitted to them that he had raped Fleischli and then killed her were proven liars.

But mostly, they battered the performance of Thompson’s trial attorney, Ron Brower, attacking his reluctance to aggressively fight the charge of rape, the special circumstance that, combined with the murder conviction, put him on death row.

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

But scarcely a year later, a three-judge panel of the 9th U.S. 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.

Now, attorneys have turned to an unlikely source to save Thompson’s life: David Leitch.

During a parole hearing two years ago, Leitch said he walked in on Thompson and Fleischli having sex on the floor the night of her murder. He left and saw no struggle to indicate Fleischli was being raped. Leitch’s trial attorney, now an Orange County municipal court judge, recalls hearing a similar story from his client.

Thompson’s attorneys argue that prosecutors withheld this possibly exculpatory information from the defense. So far, the new twist has fallen on deaf ears in the courts.

Prosecutors raised profound suspicions about Leitch’s credibility, noting conflicting stories he told at other parole hearings. They insist investigators never heard such a tale before Thompson’s trial. They note that Leitch’s report conflicts with Thompson’s testimony in trial that he made love to Fleischli in bed. And they surmise that if Leitch really did see such a scene, Fleischli might have been gagged, handcuffed or even dead when Thompson was upon her.

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Thompson’s family says the man they know couldn’t have committed murder. He was, they say, the gentle one in the family. When there was a pile of kids with swinging fists, he never joined. He was the drum major in high school, a fairly successful student, the kid who got in trouble just once for cutting class. As an adult, he helped care for a woman friend he had known for years after she developed cancer.

Prosecutors paint a different portrait. Thompson, they say, lives in a pathological fantasy world, and the shadows of doubt he has attempted to cast on the case are nothing less than a con job on the California public. Jacobs, the prosecutor in the case, calls Thompson “a manipulator.”

Psychologists for the defense said Thompson was bright but had a vivid fantasy life. It was the product, they said, of a difficult childhood. His stepfather, a rigid disciplinarian, sometimes humiliated Thompson in front of others. He once put a tennis racket that Thompson broke up on a wall and insisted the boy tell visitors how it happened.

One of the psychologists, Dr. Francis Crinella, called Thompson a “liar of the first magnitude” who made it “a way of life.” For Thompson, fabrication “became an exciting thing.”

Thompson’s family says he did indeed seem to fantasize, but it was benign, meant to impress, not fuel murder.

“We all feel for Ginger Fleischli’s family,” said Nancy Verndt, Thompson’s sister. “We just feel there is too much doubt.”