The Only ‘Evidence’ Here Is That of Chicanery

When I read that the U.S. 9th Circuit Court of Appeals has granted another hearing to condemned killer Thomas M. Thompson--based on “new” evidence--I was skeptical.

Quite a coincidence, isn’t it, that new evidence pops up after 14 years of appeals, and just a few short weeks before the Laguna Beach man’s July 14 scheduled execution?

My skepticism was replaced by a smile, however, when I learned the details of this “evidence.” Someone is jerking us around big time.

Not that you can blame Thompson’s lawyers. Their job is to keep their client alive as long as possible. But this one’s going to bring a new wave of criticism about our judicial system. And some of those complaining the loudest may be members of our own U.S. Supreme Court.

Thompson, now 43, was sentenced to death in 1984 for the rape and murder of 20-year-old Ginger Fleischli three years earlier. She had been stabbed five times and her body found in a shallow grave. Blood evidence showed the killing occurred in the Laguna Beach apartment Thompson had just begun sharing with his friend David Leitch. Leitch was convicted of second-degree murder for his role and is serving a life sentence.

This latest effort by Thompson’s lawyers would not get him off the hook for the murder, but attacks the rape allegation that qualified Thompson for death row.

At his trial, Thompson said he fell asleep after he and Fleischli (an ex-girlfriend of Leitch’s) had consensual sex. Jurors didn’t buy his version that the sex was consensual or that he could have slept through the brutal murder taking place just a few feet away.

The 9th Circuit last year kicked out Thompson’s death sentence, based on defense trial errors. But it was reinstated by the U.S. Supreme Court in April.

Now comes this new evidence: Leitch had told a police officer and then a parole board that when he returned to the apartment in the early hours of the morning, he saw Thompson and Fleischli engaged in consensual sex. Just like Thompson said.

I say it’s hogwash.

First off, who in his or her right mind would believe anything that Leitch had to say? He’s a convicted killer who lied to the police from the beginning about his involvement in this case.

Leitch already has given police three previous versions of events: He didn’t know anything about the murder at all; Fleischli was dead when he entered the apartment; Thompson threatened to harm Leitch if he didn’t help destroy evidence. What would make any new information from Leitch believable now? Leitch also has a huge motive for lying on Thompson’s behalf. If you’re trying to get a parole board to set you free from a murder sentence, wouldn’t you want to minimize the brutality of the crime?

Now here’s a really nutty oxymoron: Thompson’s lawyers want it both ways. They contend Thompson is innocent because the real killer is Leitch. They also say Leitch is lying about the murder but telling the truth when he says he saw consensual sex. Talk about impeaching your own witness.

For the sake of argument, what if Leitch saw Thompson and Fleischli engaged in sex and she wasn’t necessarily fighting him off? Does that mean consensual sex?

It’s almost an insult to rape victims to so casually dismiss Fleischli’s actions in this situation. In every single rape trial I’ve ever covered in which the rapist had a knife, none of the victims fought off her attacker. In each instance, she lay limp without struggling. And here’s why: The rape is only the victim’s second concern. Her greatest fear, what has her absolutely petrified, is that she is going to be killed. It takes the fight out of her, as it might any of us.

But here’s the most compelling reason this “new” evidence is farcical: Leitch’s own lawyer, and his own brother, have both told me and others it’s not true.

Leitch has told both of them that he never said he saw consensual sex. What Leitch did say, according to the two of them, is that he returned to the apartment, briefly opened the door and saw two people having sex, and quickly shut the door. Leitch said he assumed the sex was consensual, but actually never saw enough in his quick glance to know if it really was.

I’m more swayed by the evidence that Fleischli was raped, beginning with marks found on her wrists consistent with handcuffs. (Thompson, by the way, had handcuffs in his possession when he was arrested in Mexico later.) Then there are the marks on her ankles, indicating they’d been restrained too. Fleischli’s blouse and the front of her bra had both been cut open with a knife. Her chest was exposed. There was duct tape around her mouth. Her pants were unbuttoned, her underwear gone.

To me--and certainly to Thompson’s jury--these things together become powerful evidence that this young woman had been raped before her death. And Thompson’s own testimony puts him right there.

A 9th Circuit panel will hear the case July 9. Should the appellate court give any credence to this bizarre argument that Leitch is now a credible witness on behalf of his old buddy, it will be interesting to see the U.S. Supreme Court’s response.

On April 29, writing for the 5-4 majority, Supreme Court Justice Anthony M. Kennedy accused the 9th Circuit of “a grave abuse of discretion” by throwing out Thompson’s death sentence at such a late date. In the Robert Harris case, you may recall, the 9th Circuit stopped his execution four times, and all four times, the U.S. Supreme Court reinstated it, finally ordering the 9th Circuit not to interfere again.

I don’t see the high court getting too excited about Leitch’s self-serving statements to a parole board. The most foretelling line of the U.S. Supreme Court’s April written decision on Thompson comes on Page 18: “At trial, the prosecution presented ample evidence to show Thompson committed the rape.”

Thompson’s lawyers have bought their client more time. But if they want to get him off death row, they’d better find somebody a little more credible than David Leitch to do it.

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.