Court Asked to Hear New Evidence in Death Row Case

With time running out for death row inmate Thomas Thompson, attorneys for the Orange County murderer asked a federal appeals court Wednesday to consider new evidence they say demonstrates his innocence.

Thompson, who faces execution this summer, was convicted of the 1981 rape and murder of 20-year-old Ginger Fleischli in Laguna Beach.

But defense attorneys say the U.S. 9th Circuit Court of Appeals should review evidence they contend shows Thompson did not rape Fleischli. Thompson claims he had consensual sex with Fleischli the night she was killed.

The rape was a “special circumstance” under death penalty law that, combined with murder, made Thompson eligible for capital punishment.

The 9th Circuit halted Thompson’s execution last year on 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 last month on a 5-4 vote, clearing the path for a new execution date this summer.

The new evidence stems from statements made by Thompson’s former roommate, David Leitch, who was convicted of second-degree murder in the case and is now in prison. During a parole hearing, Leitch said he walked into the apartment he shared with Thompson and saw his roommate having sex with Fleischli.

Thompson’s attorneys argue the statements cast doubt on the rape conviction and hope to get the court to order Leitch to testify anew about what he saw the night of the murder.

“I really think even people in favor of the death penalty should be concerned that the state is seeking to execute someone despite these doubts about the case,” said Andrew Love, one of Thompson’s lawyers.

But prosecutors said there are no doubts about Thompson’s guilt.

“We think the 9th Circuit would be reticent to meddle in this case again, particularly with a motion that’s obviously a desperate attempt by defense lawyers to delay the execution,” said Rob Stutzman, a spokesman for Atty. Gen. Dan Lungren.