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High Court Assails Delay in California Execution

TIMES STAFF WRITER

The Supreme Court on Wednesday cleared the way for the state of California to execute Orange County murderer Thomas Thompson, strongly rebuking the U.S. 9th Circuit Court of Appeals for intervening two days before he was scheduled to die last August.

Justice Anthony M. Kennedy, reading his opinion from the bench, said that the people of the state had made “the moral judgment” Thompson should be put to death for the 1981 rape and murder of a 20-year-old Laguna Beach woman.

The last-minute intervention by federal judges, after 13 years of unsuccessful appeals, was “a grave abuse of discretion,” Kennedy said for a 5-4 majority.

“At some point, the state must be allowed to exercise its sovereign power to punish offenders,” said Kennedy, a Sacramento native and former 9th Circuit judge who was elevated to the high court by President Reagan.

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The decision means that the 43-year-old Army veteran could be executed within two or three months, barring intervention by another lower court.

Gregory A. Long of Los Angeles, Thompson’s lawyer, said he was “obviously disappointed” in the ruling but that he had not given up hope Thompson’s life can be spared.

“I still believe that we were right, that he was denied a fair trial,” Long said.

Gov. Pete Wilson said the court’s ruling “vindicated my decision last summer to deny clemency. His defense of innocence was completely baseless.” State Atty. Gen. Dan Lungren, who took the case to the high court, said he was pleased with the ruling.

The outcome Wednesday, as well as the sharp tone of Kennedy’s opinion, illustrates the stark divide between the conservative high court and the liberal 9th Circuit, especially on matters of death-penalty appeals.

As of April 1, 3,387 inmates were on state death rows across the nation, more than 500 of them in California. Many of them have managed to avoid execution through lengthy appeals in the federal courts.

The conservative high court has expressed irritation repeatedly at the willingness of federal judges to stand in the way of state executions.

By contrast, the 9th Circuit’s judges insist that they have a special duty to examine closely all aspects of a death penalty case, both because capital punishment is politically popular and because it is so final.

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The dispute flared six years ago in the hours before the state put to death San Diego murderer Robert Alton Harris. The 9th Circuit issued four separate orders blocking the execution, all of which were quickly reversed by the Supreme Court.

That all-night vigil has not been forgotten at the Supreme Court. The court’s conservative majority has moved quickly to hear the state’s appeals of 9th Circuit rulings.

For more than a decade after an Orange County jury found Thompson guilty of murder and sentenced him to death, he filed a series of unsuccessful appeals in state and federal courts. The California Supreme Court reviewed his case four times and rejected his appeals.

A three-judge panel of the 9th Circuit also reviewed and rejected his appeals, and the U.S. Supreme Court denied a final appeal last summer.

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In late July, Wilson convened a special clemency hearing to review the case. The evidence of Thompson’s guilt was overwhelming, the governor said, and it would be “a travesty of justice” to overturn his death sentence.

Nonetheless, on Aug. 3, an 11-judge panel of the 9th Circuit voted to reopen the case and to throw out the death sentence. Thompson was denied a fair trial, the appeals court said, because his lawyer failed to challenge the rape charge strongly.

Under California law, without the rape conviction as a “special circumstance” in the case, Thompson could not have been sentenced to death for the murder alone.

Thompson had maintained that he had had consensual sex with the murder victim, Ginger Fleischli, after they returned to the apartment where he was living on Sept. 11, 1981.

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She was never seen alive again. When her body was found buried near a freeway, it was wrapped in a blanket from the apartment. She had been stabbed five times in the head, and her wrists were badly bruised. When Thompson was arrested in Mexico, police found handcuffs in his car.

In his latest version of events, Thompson claimed that he was sound asleep a few feet away when Fleischli was murdered and her body carried away.

The appeals court did not dispute Thompson’s involvement in the murder. But Judge Betty Fletcher of Seattle, writing for the 9th Circuit majority, said that Thompson’s trial lawyer should have used an expert’s testimony to show that the body did not have “the vaginal tearing or bruising” typical of a rape. The appeals court overturned his death sentence.

On Wednesday, the Supreme Court dismissed this explanation as lame.

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“The state of California had invoked its entire legal and moral authority in support of executing its judgment,” Kennedy said. After the case had been properly reviewed and the appeals denied, “the state’s interests in finality are compelling. . . . Only with real finality can the victims of crime move forward knowing the moral judgment will be carried out,” he concluded.

Absent “a strong showing of actual innocence” by the defendant, the appeals court has no authority to reopen a case, Kennedy said.

Like Wilson, Kennedy rejected Thompson’s alibis as “fantastic” and incredible. His opinion in the case (Calderon vs. Thompson, 97-215) was joined by Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia and Clarence Thomas.

In a mildly worded dissent, Justice David H. Souter conceded that the appeals court’s belated action was awkward procedurally and “unfortunate . . . in its timing.” Still, he said, the high court should have stayed out of the case and deferred to the lower court.

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“Surely it is reasonable to resort to an en banc correction [referring to the 11-member panel] that may be necessary to avoid a constitutional error standing between a life sentence and an execution,” Souter said. He was joined in dissent by Justices John Paul Stevens, Ruth Bader Ginsburg and Steven G. Breyer.

Jack Fleischli, the victim’s brother and a business attorney, called the decision “such a relief. Finally, justice will be done.” He also said that the 9th Circuit judges “should have more integrity than to let personal bias shade their decisions.”

Lisa Nagelschmidt, Thompson’s sister, said that the family was stunned by the news. Thompson’s mother, she said, has been in the hospital for weeks battling leukemia and was deeply saddened by the high court’s decision.

“You can always hope for a miracle, and we hoped this would be it,” Nagelschmidt said. “In our eyes, the state of California will be executing an innocent man. It just seems strange to me that Tom’s case could be overturned twice and now they’re just programming it through on fast forward.”

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Long, who represented Thompson in his later appeals, said that he had “several options” left, including asking a federal judge to reexamine the case.

“We are still optimistic. I’m not in a mood to concede anything yet,” Long said.

The lawyer does have one possible suspect in mind for the murder. David Leitch, a former boyfriend of the victim and a friend of Thompson’s, was convicted of second-degree murder in the case and Thompson’s lawyers have raised the suggestion that he may be the true killer.

Times staff writer Geoff Boucher from Orange County contributed to this story.

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