Death Case Gives Lawyer New View of Life

Greg Long was just another button-down Los Angeles corporate lawyer, a devoted family man with an airy 48th-floor office, workaholic hours and political tastes leaning to the right.

Then he met Thomas Thompson, death row inmate.

Nearly a decade ago, Long took on Thompson’s defense on a pro bono basis. Juggling regular duties as a high-priced civil litigator, Long has since devoted thousands of hours to Thompson’s case, toiling for free to block the scheduled execution early Tuesday of the convicted Orange County murderer and rapist.

The 9th Circuit Court of Appeals late Saturday refused to halt Thompson’s execution. The decision--made by the same court that blocked Thompson’s execution last year just 32 hours before it was scheduled to occur--dashes what was considered Thompson’s best chance of avoiding death.

If working with Thompson hasn’t changed Long the lawyer, it has certainly reshaped Long the man.

Toting the case home in his briefcase and in his thoughts most nights, Long has come away convinced both that Thompson is innocent and that America’s criminal justice system is badly flawed. His dip into the shark tank of death penalty law also has Long, a bespectacled Republican and bearish former college football lineman, questioning the need for capital punishment.

Don’t get him wrong: Long is hardly a true believer, an abolitionist ready to end all executions. But the Thompson case, Long says, “has forced me to confront the death penalty on a more personal level.”

“I can no longer think of everyone on death row just as those people up there who deserve to be killed--because now I know Tom Thompson,” he said.

Long’s experience is not unique in America’s legal community. In recent years, more than 70% of the nation’s big law firms, many of them of a conservative bent, have expanded their traditional workload to handle capital punishment cases at the urging of the bench and legal bar.

The lawyers deployed get a very intimate view of America’s death penalty process.

“Many don’t fit the profile of the wild-eyed abolitionist,” said Esther Lardent, president of the Pro Bono Institute, which links large firms to criminal cases. “They’re not people fundamentally opposed on moral grounds. But what they see is how badly the system works, how inequitable it is, how full of mistakes.”

The changes in these volunteer attorneys can be fundamental. Some supporters of capital punishment turn into fire-breathing foes. A few that go in as death penalty opponents see their resolve melt as they face the inescapable guilt of their clients.

But almost all come away shuddering over a system that they say does a poor job at the trial court level, yielding verdicts that lack the certainty needed for the most final of all punishments.

Legal experts say such experiences, shared with colleagues, helped spark the American Bar Assn.’s call last year for a moratorium on the death penalty.

“I remain of the view the death penalty does serve a purpose. Put Hitler in my sights, I’d pull the trigger and get a good night’s sleep,” said Scott Atlas, an attorney with a large Houston firm who has done pro bono death penalty cases. “But I had no idea how one-sided the process is. It leaves one in doubt about the ultimate verdict of guilt.”

Inequities of the System

For Long, 49, his personal metamorphosis began with a speech by Morris Dees, head of the Alabama-based Southern Poverty Law Center, decrying the lack of adequate representation in death penalty cases.

Inspired by the talk, Long jumped at a chance to represent Thompson, who has proclaimed his innocence since being arrested for the 1981 rape and murder of 20-year-old Ginger Fleischli in Laguna Beach. Fleischli’s bloodied and bound corpse, five knife wounds in one ear, was found sloppily buried in a grove of trees near a freeway.

The attorney grew bewildered as he burrowed into the trial transcript. The record, Long said, baldly exposed defense flaws during Thompson’s 1983 trial.

“It was abysmal,” Long said. “He did not get a fair trial. He did not get adequate representation.”

Though prosecutors label Thompson a habitual liar and con man, Long accepts his client’s alibi--that after a night of bar hopping and smoking hashish, Thompson had consensual sex with Fleischli, then slept through her murder a few feet away in his cramped studio apartment.

“I spent a lot of time wondering,” Long said. “I finally came to the conclusion that it is a believable story. Anyone who has been to college and drank too many beers knows [passing out] can happen. It doesn’t make it right or smart, but it can happen.”

His allegiance to Thompson’s story has prosecutors shaking their heads. Law officers see only lame excuses, lies and a mountain of circumstantial evidence pointing to Thompson, whom they consider a “stone-cold sociopath.”

“If he sincerely doubts Thompson’s guilt, then I would have to attribute it to his lack of familiarity with solving crimes and convicting criminals,” said Holly D. Wilkens, the deputy state attorney general who has jousted with Long on the case since 1989.

“I think he’s an aggressive attorney, I think he’s tenacious,” Wilkens said. “And I think he’s wrong.”

Charting a Life Course

Long knew the law was for him as early as junior high. His father was an Air Force officer, and the family shuttled to posts throughout the country. Between their wide-ranging dinner table discussions and a parental penchant for visiting historical sites--the Alamo, the U.S. Capitol, the Supreme Court--Long gained an appreciation for open-minded debate.

After Claremont McKenna College and Harvard Law School, he entered the world of trial litigation, handling all types of civil cases, from attorney malpractice to the legal rubble of air crashes. Never did he have an interest in criminal law.

As for the death penalty, he shared the view of most Americans: The condemned deserve their punishment, they deserve to die.

That changed for Long when the condemned took on a face.

His first meeting with Thompson came in San Quentin’s visitors room. Amid the bright murals painted by prisoners, a dozen or so death row inmates mingled with family, friends, babies in diapers, clergy.

“For all the world you’d think you are at a church social,” Long said. “Everyone is polite, courteous. It’s almost Kafkaesque.”

Since then, he has visited Thompson every six weeks. They talk of his case, foreign affairs, sports. Thompson, who has a knack for impersonation, invariably gets his attorney laughing with his version of “Star Trek’s” Captain Kirk or Long’s co-counsel, Quin Denvir, the federal defender who also represents convicted Unabomber Theodore Kaczynski.

Thompson may be a convicted murderer, but Long sees a man who has maintained his faith in God and in the courts. “He’s still absolutely certain that the system is going to work,” Long said, “that he’s finally going to get a fair trial.”

For Long, it always gets back to the trial. He says Thompson’s court-appointed trial attorney made only a token effort to challenge the charge of rape, which--combined with murder--made Thompson subject to execution. Long says the attorney also failed to aggressively attack the forensic evidence and didn’t establish that drugs and alcohol might have allowed Thompson to sleep through the murder. The biggest misstep, he said, was allowing Thompson to take the stand, a debacle by all accounts.

Those arguments by Long have had a measure of success. They have prevailed before one federal district judge and the 9th Circuit Court of Appeals, but have been rejected by the U.S. Supreme Court. Thompson is down to his final round of appeals before the scheduled execution at 12:01 a.m. Tuesday.

Long argues that the real killer may be David Leitch, Thompson’s roommate and Fleischli’s off-and-on lover. Leitch, whose shoe print was found near Fleischli’s body, was convicted in a separate trial of second-degree murder for participating in the crime. He is now eligible for parole.

Leitch has a history of violent behavior, Long said, and allegedly had threatened Fleischli a few weeks before the murder.

Thompson’s trial attorney, Ronald Brower of Santa Ana, did not return a call for comment, but prosecutors say he is being unfairly smeared by Thompson’s appeals team. Wilkens said the assault on Brower is among the most mean-spirited she has ever seen.

She also suggested that Long and his allies are trying to hold prosecutors to an impossible standard. “They want us to explain every moment of that night,” Wilkens said. “That’s not possible. We don’t have videotapes of homicides. They’re proven on circumstantial evidence. There are unanswered questions in every case.”

Wilkens noted that Thompson initially told police he didn’t have sex with Fleischli, then altered the story for trial. It is, she said, a Thompson trait. At San Quentin, Wilkens said, Thompson convinced one guard he was a Vietnam veteran, which he is not.

“He’s very adept at conning people,” Wilkens said. “He may have conned Greg Long, but he didn’t con that jury.”

A Mountain of Unbilled Hours

Long’s zeal to save Thompson shows in the time he has worked on the case. The attorney conservatively estimates that he has put in more than 3,000 hours. Last year alone, he logged 800 hours on Thompson, nearly a third of the attorney’s typical work year.

That’s only part of it. During the nine years Long has been on the case, at least 20 other associate attorneys, paralegals and clerks from his firm--Sheppard Mullin Richter & Hampton--have aided the cause.

The firm’s commitment to the defense is exactly what judges and bar leaders had hoped to get from the big firms in handling the proliferating death penalty cases. Sheppard Mullin probably could have collected more than $1 million in fees if Thompson’s appeals had been a paying case. Long alone typically charges $310 an hour.

“I think the firm deserves big praise for this,” said Bill Arzbaecher, a former associate in the firm who worked on the case. “It’s a big commitment.”

There have been some grumbles inside the firm’s Arco Center office in downtown Los Angeles.

A few Sheppard Mullin partners, Long said, are not exactly thrilled to have the firm linked to the defense of a death row convict.

Lardent of the Pro Bono Institute said such reactions aren’t unusual in the swank suites of corporate law firms. The fallout can be daunting.

“They get bad publicity,” Lardent said. “Some even get death threats.”

Atlas, the Houston lawyer, said the experience has tested his resolve as a death penalty supporter. He defended an illegal immigrant convicted of killing a Houston police officer and got the man off in 1993. A federal judge declared that his client was clearly innocent.

“What I found so troubling was discovering on my visits to death row that everyone was poor,” Atlas said. “People like O.J. Simpson who can afford quality counsel don’t get the death penalty.”

Efforts by Congress to speed federal appeals have also made it increasingly difficult to undo errors cemented at the original trial. Atlas and others advocate increasing the participation of high-powered private firms on a pro bono basis in the early stages of a case.

“We have to start building more quality into the trial,” said Ken Frazier, an attorney for the drug giant Merck & Co., who volunteers his time for capital cases. “Irrespective of how any of us feel about the death penalty, we should want these cases handled so we have confidence in the outcome. That isn’t the case now.”

Sometimes, the experience of a capital case can undermine even abolitionist beliefs. Howard Schrader, a junior partner at a small New York firm, got involved in a Florida death row defense as an associate fresh out of law school.

“Going in, I was instinctively opposed to the death penalty as something that seemed barbaric,” Schrader said. But his strong leanings shifted as Schrader was buffeted by the disturbing realities of the case.

“Having gone through that experience, I’m now deeply ambivalent about capital punishment,” he said. “But whatever heinous things a death row inmate may have done, they remain scared and desperate human beings dependent on you for their lives. No matter what they’ve done, you develop a commitment to them.”

Raising the Stakes

Long has handled lots of big civil cases. He once won a $40-million award for the victims of an airline crash. He also lost what he calls the biggest U.S. patent case ever, only to see it yo-yo through the appeals process as various courts reversed one another.

The Thompson case is a far weightier matter. “My other cases are just about money,” Long said. “This is about a man’s life.”

Those may seem the words of a true believer, but Long is anything but that. His feelings about capital punishment seesaw somewhere in the middle.

He sympathizes with the families of victims, understands the need for vengeance. If a child of his was murdered, Long said, “I might be able to pull the trigger” to execute the killer.

But the utter finality of a punishment produced by a process he now considers flawed troubles Long.

“What happens when we discover, as we have 60 or 70 times in the United States, that you’ve got the wrong person?” Long said. “Is it tolerable to have a system that we acknowledge is, on occasion, going to kill innocent people?”