Prosecutor Still Drawing Flak as Execution Nears

For 15 years, condemned killer Thomas M. Thompson and his accomplice have given ever-changing accounts of the 1981 slaying of Ginger Fleischli. But on the eve of Thompson’s execution, it’s the prosecutor’s conflicting versions of the crime that have some legal experts deeply troubled.

Deputy Dist. Atty. Michael A. Jacobs won convictions in separate trials against Thompson in 1983 and his accomplice, David Leitch, two years later. What still worries these legal experts is that he told juries contradictory stories about what happened.

Such prosecutorial tactics have been used in other trials and, likewise, have been criticized. A similar case in Torrance is on appeal, but the stakes are lower: Neither defendant was sentenced to die.

The tactics may not be illegal, but they are far from “morally correct,” said Thomas Havlena, a deputy public defender and former chair of the Orange County Bar Assn.’s ethics committee.

“To the extent that the criminal justice system is supposed to be a search for the truth, the practice certainly subverts that search,” Havlena said. “It’s pretty hard for prosecutors to be true to themselves when they’re talking out of both sides of their mouth. And it’s hard for them to be true to the system.”

Indeed, Jacobs was the target last year of a bruising attack by federal judges and has faced continued second-guessing by legal experts for telling two stories: first, that Thompson acted alone in killing Fleischli and, later, that Leitch plotted the murder and participated in it.

Jacobs says he did nothing wrong. “In each case, I presented the evidence we had, and there’s nothing wrong with that,” he said.

Some experts find such tactics dicey.

“I wouldn’t specifically condemn a prosecutor for offering two different versions spun out of the evidence at two different trials, unless the differences rose to a level so outrageous that the defendant did not have a fair trial,” said George Fisher, a former prosecutor who teaches ethics at Stanford University Law School.

Last summer, the U.S. 9th Circuit Court of Appeals slammed the brakes on Thompson’s execution by citing legal problems with the case, including the veteran prosecutor’s “flagrantly inconsistent theories, facts and arguments,” which raised “serious questions” about due process.

But the U.S. Supreme Court disagreed in a 5-4 opinion in April, setting up Thompson’s date with death early Tuesday morning.

The debate centers on a murder in a Laguna Beach apartment that defies clear-cut answers for some observers. There is evidence pointing to two men, Thompson and Leitch, and there is controversy surrounding motive and whether the victim was raped of that the sex was consensual. In addition, Thompson has insisted from the start that he slept through the killing and has argued that Leitch was the killer.

Jacobs told the first jury that Thompson acted alone when he stabbed the 20-year-old Fleischli with the motive of covering up a rape. Jacobs also told jurors that “there is no evidence we have putting [Leitch] in the apartment that night.”

But then Jacobs told the second jury that Leitch actually had “the only motive,” which was to eliminate Fleischli for blocking his plan to reunite with his ex-wife. Leitch, he said, even provided the murder weapon.

The prosecutor also told the second jury that “both men were together inside that apartment” the night of the crime. Leitch was convicted of second-degree murder and sentenced to 15 years to life. He is now eligible for parole.

The accounts given to each jury differ on other points, enough to prompt the 9th Circuit to say Jacobs “manipulated evidence and witnesses” in both trials. In the second trial, he “essentially ridiculed” the theory he used to win a conviction and death sentence against Thompson in the first trial, the court said.

“It comes down to the prosecutor saying whatever it takes to win, when they should have a higher duty to seek justice,” says Andy Love, one of Thompson’s attorneys. He called Jacobs’ conflicting arguments “incredibly egregious.”

But Jacobs maintains that there were “no inconsistencies” and that the appellate jurists put together the “most warped opinion” he had ever seen by ignoring the nuances of the cases as they unfolded.

“Each defendant had separate reasons for wanting to kill her, but that doesn’t mean the cases contradict each other,” said Jacobs, who plans to attend the execution.

The first trial, especially Thompson’s testimony, led to new information that “naturally” changed the prosecutor’s tactics in the second trial, he said.

“The opinion is all double-talk,” Jacobs said of the appellate court’s decision.

Judge Robert R. Fitzgerald, who presided over both trials, declined to comment directly on any argument presented in the cases, but he said he would have stepped in had Jacobs crossed any ethical boundary.

Fitzgerald said the practice by prosecutors of presenting different information to different juries “is not unlawful and it is not unethical.”

A similar scenario played out in a Torrance courtroom following the 1995 shooting death of a local drug dealer. In two separate trials, a prosecutor argued that different men fired the single shot that killed Willie Yen as he drove his car through Entradero Park.

One defendant, John Patrick Winkelman, said he was not in the park at the time of the shooting. The other accused man, Stephen Edmond Davis, said he only witnessed the crime and intimated that Winkelman fired the fatal shot. Ballistics tests were inconclusive.

The prosecutor, Deputy Los Angeles County Dist. Atty. Todd Rubenstein, told one jury, “It’s unrefuted that John Winkelman is the actual killer.” The next day, he told the second panel that it was “quite clear” that Davis pulled the trigger.

Both defendants were convicted, and subsequently they were sentenced by Los Angeles County Superior Court Judge Francis J. Hourigan to life in prison without chance of parole.

The Torrance convictions drew criticism from legal experts and veterans of the criminal justice system.

Former Los Angeles County Dist. Atty. Ira Reiner labeled as “sophistry” any attempt to justify the verdicts and added: “This is certainly not what lawyers should do. And this is certainly not what a prosecutor should do.”

The convictions are on appeal.

Havlena said Thompson’s case is especially troublesome because of the high stakes involved.

“Here’s a guy on death row. Society really should demand a great deal of precision in [the] fact-finding process in a case that’s going to cost a man his life,” he said.

Former prosecutor Fisher, who has reviewed such cases with his Stanford students, said the crux of the ethical issue in a two-trial, two-theory scenario is as much about timing as it is about the private thoughts that run through the mind of the prosecutor.

“If a prosecutor walks into the trial of two cases planning in advance to present inconsistent theories . . . then the prosecutor has probably violated an ethical norm of fidelity to evidence that threatens the truth,” he said.

Deputy Atty. Gen. Holly Wilkens, who is handling the appeals for the state, dismissed the matter as a nonissue conjured up by defense attorneys desperate to keep Thompson from having to walk into the state’s death chamber.

“The problem with Thompson’s lawyers is that they’re looking for the needle in the haystack. But there’s no needle and they’ve got lots of hay.”