A federal court agreed Tuesday to hear new evidence in the case of convicted murderer Thomas Thompson before, rather than after, his execution date.
The U.S. 9th Circuit Court of Appeals had scheduled the deadline for written arguments for Aug. 6. But Thompson is scheduled to die by lethal injection July 14.
His attorneys had asked the appellate court to halt the execution. While the court didn't act on that request, it rescheduled the deadline for June 30. It will then take the matter under submission and schedule oral arguments if necessary.
Thompson, 43, was convicted of raping and murdering Ginger Fleischli in Laguna Beach in 1981. His first scheduled trip to San Quentin's death chamber was halted a year ago, just 32 hours before he was to be executed.
The court now is being asked to consider new evidence which, according to defense attorney Andrew Love, suggests that Thompson did not rape Fleischli, a "special circumstance" that made Thompson eligible for the death penalty.
The evidence includes statements by Thompson's former roommate, David Leitch, that he saw Thompson and Fleischli having consensual sex on the night of the murder. Leitch, a former boyfriend of the victim, was charged with helping Thompson dispose of the body and was convicted of second-degree murder.
Love said the new hearing date, while better than the old one, still is rushing matters when complex issues must be decided.
"It just puts so much more chaos and pressure into the system that is unnecessary," Love said. "They should be able to decide these issues, which haven't been heard before, and if they rule against Mr. Thompson, then set an execution date. Mr. Thompson isn't going anywhere."
Last August, the appellate court halted Thompson's execution on the grounds that he was denied a fair trial because his lawyer failed to challenge the rape charge aggressively. But the U.S. Supreme Court reversed that decision in April, clearing the path for a new execution date this summer. The justices also were strongly critical of the 9th Circuit for intervening so late in the process.
Orange County Deputy Dist. Atty. Michael A. Jacobs said Tuesday that the appellate court's decision to again consider the case violates the U.S. Supreme Court's order that Thompson be executed.
"Right now, they are ignoring the Supreme Court as well as the federal statutes," Jacobs said. "You have a very unusual situation."
"The Supreme Court's ruling in April never addressed this new evidence," Love said. "This is new evidence that had been withheld by the state."
Matt Ross, spokesman for Atty. Gen. Dan Lungren, said it is time to move the case forward.
"It's been going on for quite some time, and it's about time for the victim's family to have closure and to have this case come to an end," Ross said. "It's just time. Seventeen years is enough."