Facts Get in Way of Killer’s Case

Arguments before the U.S. 9th Circuit Court of Appeals in Pasadena this afternoon will be heavily laced with language most of us know little about. Terms like “writ of mandamus” or “Rule 60 (b) motions” or “habeas corpus relief.”

But underlying all this legalese is the highest of courtroom dramas. Life’s minutes are ticking away for Thomas Thompson.

At just 60 seconds past Monday midnight, he is scheduled to be put to death by lethal injection at San Quentin state prison. Thompson, 49, would become just the fifth person executed here since California reinstated the death penalty two decades ago.

Thompson, convicted of the 1981 rape and murder of 20-year-old Ginger Fleischli at his Laguna Beach apartment, has spent 15 years on death row while his appeal has dragged through the state and federal courts. His two federal court victories in the last year were dashed at the next level.

One of those rulings favorable to him came from the same 9th Circuit judges who will hear his arguments today. But should Thompson win with that court again, it appears the state will pull out all the stops to make sure the execution goes as scheduled.

“If the 9th rules in Thompson’s favor, or issues a stay of execution, we will ask the U.S. Supreme Court to rule immediately,” said Deputy Atty. Gen. Holly Wilkens. “Even if the execution is stopped as late as Monday night, we would still have 24 hours to get it rescheduled. And the Supreme Court has shown that it can act within a matter of hours.”

The 9th Circuit set aside Thompson’s death penalty a year ago, finding mistakes by his trial attorney. But in April, the U.S. Supreme Court reinstated Thompson’s death verdict and scolded the 9th Circuit for “a grave abuse of discretion.” It also found “ample evidence” that Thompson had raped Fleischli. It’s the rape that qualifies him for execution instead of the standard 25-years-to-life for first-degree murder.

I’ve written in this column previously why I think Thompson is guilty of both the murder and the rape. But that doesn’t mean I cannot appreciate the conscientious attempts by his attorneys to keep him alive. These are lawyers with strong feelings against the death penalty. Their attempts the next five days to prevent his execution will be almost round-the-clock, same as the state’s lawyers who want to see the trial judge’s execution order carried out.

It just doesn’t appear to me that Thompson’s lawyers have much of a hook to hang their case on. A reminder of some of the basic facts:

Thompson claimed he and Fleischli had consensual sex, but then he fell asleep. When he woke up, she was gone. But jurors didn’t believe him.

Her blood was all over the middle of the small studio apartment. When her body was discovered buried nearby, authorities found she had been stabbed to death. How could Thompson have slept through such a vicious attack?

But a second man involved, David Leitch, is now serving a life sentence for second-degree murder in Fleischli’s death. And the crux of today’s argument before the 9th Circuit will be what Leitch stated at his parole board hearing in 1995.

Thompson’s lawyers say Leitch confirms Thompson’s testimony that his sex with Fleischli was consensual. In their court papers, Thompson’s lawyers call Leitch’s version “critical evidence” to help establish Thompson’s innocence of rape.

I’ve read and heard various media accounts of this Thompson argument without ever knowing for sure just what it was Leitch said. Recently a local magazine columnist even wrote that, based on what the defense said about Leitch’s statement, he now believes Thompson is innocent of rape.

This week I got a copy of the actual transcript of that parole board hearing.

Leitch begins by telling the parole board that when he came back to the apartment in the early hours of the morning, he found Fleischli dead and Thompson sitting in a corner. Leitch quotes Thompson saying, “You got to help me get rid of this body.”

Later on in the parole hearing, Leitch mentions that he had also stopped by the apartment a few hours before. And here is the exchange that the Thompson attorneys say is critical:

Leitch: “It was a long corridor and you kind of see ‘em at the end of the corridor. So I just opened up the door and looked in there. And it was like people were having sex, so I left.”

Parole Board: “On the floor?”

Leitch: “On the floor.”

Parole Board: “Just about the place where she was killed, right?”

Leitch: “Right.”

Parole Board: “She wasn’t screaming or . . ?

Leitch: “No.”

That’s it. The whole defense rests on that single exchange of sentences.

But in that same parole hearing, presiding board commissioner Tom Giaquinto asks Leitch why he thinks Thompson killed Fleischli.

Leitch: “The only thing I can come up with is that he raped her and then didn’t want her to tell.”

Leitch’s attorney and his own brother say Leitch has told them his glance was too brief for him to form an opinion that what he saw was consensual sex. And prosecutors relish pointing out that Thompson’s own testimony was that he and Fleischli had sex on a corner bunk, not in the middle of the floor.

I’ve written before about the rape evidence--the cut blouse and bra, duct tape across her mouth, shackle marks on her arms and legs. But if the 9th Circuit finds anything in the Leitch remarks that amounts to credible evidence on Thompson’s behalf, it will kick off a flurry of legal exchanges between here and Washington.

There’s almost a sense of deja vu about Thompson’s current legal dilemma. Robert Alton Harris, convicted of double murder in San Diego County, was in the same position six years ago.

On April 21, 1992, Harris was already strapped into the chair inside San Quentin’s gas chamber when he received word that a 9th Circuit judge had spared his execution, at 4:08 a.m. But it was 5:45 a.m.--less than two hours later--that the U.S. Supreme Court overturned the 9th Circuit and angrily ordered no more stays. Harris was executed before dawn.

Thompson is too well aware of the Harris case. He--and we--will have to wait and see whether he meets a similar fate.

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Jerry Hicks’ column appears Tuesday, Thursday and Saturday. Readers may reach Hicks by calling the Times Orange County Edition at (714) 966-7823 or by fax to (714) 966-7711, or e-mail to jerry.hicks@latimes.com