Thompson Plea to Halt His Execution Rejected

The U.S. 9th Circuit Court of Appeals late Saturday refused to halt the execution of convicted rapist and murderer Thomas M. Thompson, who is scheduled to be put to death by lethal injection at 12:01 a.m. Tuesday at San Quentin State Prison.

The decision--made by the same court that halted Thompson’s execution last year just 32 hours before it was scheduled to occur--dashes what was considered the former boat repairman’s best chance of avoiding death.

His attorneys are now left only with the option of appealing to the U.S. Supreme Court. Last August, the high court issued a scathing opinion reversing the 9th Circuit’s original decision to stop the execution.

Thompson would become just the fifth person executed here since the state reinstated the death penalty two decades ago.

Thompson, 43, was convicted of raping and killing 20-year-old Ginger Fleischli, of Laguna Beach, in September 1981 but has steadfastly maintained his innocence. His attorneys claimed that the state withheld crucial evidence during the trial and pleaded with the appeals court panel this week to spare his life.

On Thursday, Thompson’s attorneys asked the appellate panel to consider new evidence that they claim had been suppressed by the prosecution. They argued that the evidence suggests that Thompson did not commit rape, a special circumstance that made him eligible for the death penalty.

Defense attorneys said the evidence consists of statements by Thompson’s former roommate, David Leitch, that he saw Thompson and Fleischli having consensual sex on the night of the murder.

Leitch was Fleischli’s ex-boyfriend and had known her since she was 16. Thompson’s lawyers argued that because of his long history with the victim, Leitch would not have stood by and done nothing if he saw that Fleischli was being raped.

But the court majority said in its opinion that “even assuming [Leitch] made the statements and they were true, whether they would have any likelihood of establishing that Thompson was actually innocent of the rape in light of the overwhelming evidence is not clear.”

The justices also pointed out that Leitch had told some people that he believed the sex was consensual but on several other occasions said he believed Thompson raped her.

“The credibility of his various stories is in serious doubt, the nature of his observations is questionable, and conflict with Thompson’s statements about where he had consensual sex with Fleischi seriously diminish any impact that Leitch’s statements could have,” the court majority wrote.

But Judge Procter Hug Jr., in a dissenting opinion, criticized the majority for depriving Thompson of “the one fair opportunity he would have had to prove what actually happened.”

“Despite the history of repeated constitutional violations that must seriously shake any rational observer’s faith in the outcome of this case . . . the majority concludes that it must allow Thompson’s execution to go forward without permitting him the opportunity to have a hearing on this critical new evidence,” Hug wrote.

Under state law, Thompson could not have been sentenced to death for the murder alone without the rape conviction as a special circumstance. Prosecutors had argued during his trial that Thompson raped Fleischli then killed her to cover up the crime.

Thompson has long maintained his innocence and testified during his trial that, after a night of bar hopping, he had consensual sex with Fleischli at the Laguna Beach apartment where he was staying. He testified that he passed out and awoke to find Fleischli gone.

The young woman’s body was discovered wrapped in a blanket and buried near a freeway. Autopsy results showed that she bled to death after being stabbed five times in the head. Her wrists were also badly bruised. At the time of his arrest in Mexico, handcuffs were found inside of Thompson’s car.

Leitch was convicted of second-degree murder for helping Thompson dispose of the body. He was sentenced to 15 years to life in prison and is now eligible for parole.

Deputy Atty. Gen. Holly Wilkins had argued Thursday that the appeals panel did not have jurisdiction over the matter and should not postpone the execution. Wilkins cited the Anti-Terrorism and effective Death Penalty Act of 1996 which was passed in part to cut down on prolonged appeals by death row inmates.

Wilkins had called the efforts by Thompson’s lawyers “an exercise of futility” and “a waste of judicial resources.”