Death Row Man’s Attorneys Make 11th-Hour Appeal

Just days before Thomas Thompson’s scheduled execution date, his lawyers pleaded with an appeals court panel Thursday to spare the convicted murderer, saying the state withheld crucial evidence during the trial.

“To send a man to his death based on that kind of evidentiary record is ridiculous,” Gregory Long, one of Thompson’s attorneys, told an 11-judge panel of the 9th U.S. Circuit Court of Appeals.

But Deputy Atty. Gen. Holly Wilkens argued that the appeals panel does not even have jurisdiction over the matter.

“This court should not postpone the execution. This court does not have the authority,” she said, citing the Anti-Terrorism and Effective Death Penalty Act of 1996.

That federal legislation was passed in part to cut down on prolonged appeals by death row inmates.

Wilkens went on to call the efforts of Thompson’s defense team “an exercise of futility” and “a waste of judicial resources.”

Thompson, 43, is scheduled to die by lethal injection at San Quentin on Tuesday. He was convicted of raping and murdering Ginger Fleischli, a 20-year-old Laguna Beach woman, in September 1981. An appeals panel last year halted Thompson’s execution just 32 hours before he was to die, saying that Thompson’s lawyers failed to challenge the rape charge aggressively.

A new execution date was set after the U.S. Supreme Court reversed that decision in an opinion laced with scathing criticism of the 9th Circuit Court.

On Thursday, lawyers for Thompson asked the same appellate panel to consider new evidence that they argued had been suppressed by the prosecution--evidence suggesting that Thompson did not commit rape, a special circumstance that made him eligible for the death penalty.

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That evidence, according to the defense, 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, an ex-boyfriend of Fleischli who had known her since she was 16, could not have “walked in and seen her raped and done nothing,” Long told the court Thursday.

“This evidence was withheld from [Thompson] by the state in violation of his constitutional rights,” Long said. “They clearly knew this was central to their case.”

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 trial that Thompson raped Fleischli, then killed her to cover up the crime.

Wilkens contended Thursday that the new evidence offered by the defense is “wholly lacking.”

“It does not establish consensual sex by any stretch of the imagination,” she said.

The appeals panel now has the choice of letting the execution proceed or halting it. The judges could do the latter by asking either a federal district court or a separate three-judge panel to consider the new evidence. If the 9th Circuit judges take no action, the defense still has the option of appealing to the U.S. Supreme Court with the new evidence, Long said.

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Thompson has steadfastly maintained his innocence, testifying 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.

Fleischli’s body was found wrapped in a blanket and buried near a freeway. An autopsy indicated that she bled to death after being stabbed five times in the head and that her wrists were badly bruised. When Thompson was arrested in Mexico, police found handcuffs in his car.

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