Protests, Appeals Mark Convict’s Last Hours

SAN QUENTIN —  Thomas Thompson awaited execution late Monday for the 1981 rape and murder of a young Orange County woman, after the U.S. Supreme Court rejected a final desperate appeal.

Thompson, 43, was expected to be put to death by lethal injection at 12:01 this morning in the converted gas chamber at San Quentin prison.

The Supreme Court, which twice in the last year turned back appeals by Thompson, announced at about 7:15 p.m. Monday that it would not step in to block the execution.

Thompson was convicted of raping and killing Ginger Fleischli, 20, in Laguna Beach, but he has argued since his arrest two weeks after the slaying that he did not commit the crimes.

The victim’s older brother, Jack Fleischli, has repeatedly called Thompson a liar.

“I’ll be happy to have justice finally served,” Fleischli said. “The loss of a loved one just won’t go away. Every day that justice isn’t served is another day where you feel physically assaulted.

“This guy living in prison for 17 years, that’s not punishment. He’s escaped punishment up to this point,” he said.

Thompson spent his final hours visiting with family, friends and his attorneys after a sleepless night in a holding cell, said Greg Long, one of Thompson’s appellate lawyers. Long said the convicted killer, his arms shackled to a chain circling his waist, spent more time helping loved ones than being consoled.

Early in the evening Thompson was moved to a special death-watch cell for a final meal of Alaskan king crab legs, spinach salad, pork fried rice, Mandarin-style spare ribs, a chocolate sundae and six-pack of cola.

“They’re killing an innocent man,” said Chris Nagelschmidt, Thompson’s brother-in-law. “We’re frustrated by the whole system. It seems political and procedural, rather than based on reality and truth.”

Nagelschmidt said he and Thompson’s sister, Lisa, talked to the condemned man Sunday afternoon. Thompson, he said, told them he hadn’t been sleeping much lately, but joked: “I guess I’ll have plenty of time to sleep later.”

Nearly 100 opponents of capital punishment protested outside San Quentin in the hours leading up to the scheduled execution. No advocates had appeared by 9 p.m.

Even so, among those who had walked a mile or more past police officers in riot gear, emotions ran high.

“The state is perpetuating a lie, the lie that the execution is going to heal us,” said Aba Gayle Goldman, whose daughter was murdered in 1980 by a man who is now on death row. “Twelve years after Catherine died, I had an epiphany. I learned that killing him doesn’t honor her at all.”

About 20 demonstrators gathered at the entrance of Santa Ana’s Main Place Mall on Monday to denounce what they consider the brutality of the state.

“We want California to join the civilized Western democracies in abandoning this barbaric practice,” said Father John McAndrew, a Catholic priest who helped organize the rally.

Demonstrations elsewhere involved small groups. About a dozen protesters appeared at the Hall of Justice in San Francisco and a similar number showed up at a city library, said Troy Samovia, a California Highway Patrol officer in charge of security outside the prison. Ten to 15 people protested in Oakland, he said.

Sentence Reversed and Reinstated

Thompson’s execution would end a 17-year fight waged in the courts and the media over his fate. On two occasions in recent years his death sentence was reversed, only to be reinstated by a higher court.

Unlike the four men who preceded him into the death chamber since executions resumed in California six years ago, Thompson has stuck steadfastly to claims of innocence.

He doggedly maintained that after an evening of bar-hopping and smoking hashish, he and Fleischli had consensual sex in an oceanfront Laguna Beach apartment, after which he passed out, slept until morning and never saw her again.

Prosecutors, however, said that evidence against Thompson was overwhelming. They say that he killed Fleischli to keep her from reporting the rape and spoiling a wild scheme Thompson had to travel to Southeast Asia to smuggle refugees.

Fleischli’s body was discovered a few days later, partially buried in a shallow grave amid a grove of trees at an Irvine nursery. Her shirt and bra had been cut open, and she was wrapped in a cocoon of duct tape, a sleeping bag, a blanket and rope. She had been stabbed five times in the right ear.

The peculiarities of the case helped sow doubts about Thompson’s guilt, particularly among death penalty opponents. They mounted an aggressive publicity campaign on his behalf, enlisting sympathizers ranging from Hollywood stars to former New York Gov. Mario Cuomo and Cardinal Roger M. Mahony, archbishop of Los Angeles.

Although an Orange County jury took just a few hours to convict Thompson, his attorneys contend that David Leitch, a former boyfriend of Fleischli, was the real murderer.

Physical evidence--a footprint found near Fleischli’s body and cloth fibers found in the trunk of his car--linked Leitch to the crime. Leitch told investigators that Thompson forced him at gunpoint to help dispose of the body.

Thompson had no previous criminal record, but Leitch had a history of violent behavior and had threatened Fleischli a few weeks before the murder. Leitch was tried separately, convicted of second-degree murder and sentenced to 15 years to life in prison. He is now eligible for parole.

During the trial, an investigator said an injury to Fleischli’s wrist appeared to be from the locking mechanism of handcuffs. Thompson was arrested in Mexico with handcuffs in his possession.

But a defense pathologist suggested that the mark on Fleischli’s wrist was not caused by handcuffs. In addition, Thompson’s appellate attorneys argued that the physical evidence of rape was not compelling.

His attorneys also say two jailhouse informants who testified against Thompson were unreliable at best. One was known to trade information for favorable treatment. The other testified that Thompson bragged of stabbing Fleischli in the neck and upper torso, erroneous details that had been reported in a newspaper.

But mostly the defense team in its appeals battered the performance of Thompson’s trial attorney, attacking his reluctance to aggressively fight the charge of rape, the special-circumstance crime that, combined with the murder conviction, put Thompson on death row.

In recent months, Thompson’s backers put a spotlight on testimony from Leitch at a 1995 parole hearing suggesting that he saw Fleischli and Thompson having consensual sex on the night of the murder.

Prosecutors, however, raised profound suspicions about Leitch’s credibility, noting conflicting stories that he told at other parole hearings. They noted that Leitch’s report didn’t fit with Thompson’s testimony that he had sex with Fleischli in bed, not on the floor. And they surmised that if Leitch really had seen such a scene, Fleischli might have been gagged, handcuffed or even dead at the time.

In the same parole hearing, Leitch is quoted as theorizing that Thompson raped Fleischli and then killed her.

Prosecutors Note Abundant Evidence

Prosecutors said that evidence of Thompson’s guilt was overwhelming, and ridiculed his assertion that he slept through Fleischli’s murder. They noted that Fleischli’s blood soaked through the carpet just a few feet from where Thompson says he slept.

Evidence of rape abounded, they said. Fleischli’s wrists and ankles were bruised as if they had been restrained. Her mouth was taped shut with duct tape. Her pants were unbuttoned, her underwear was gone.

Psychologists said Thompson was bright, but had a vivid fantasy life, the product of a difficult childhood shadowed by a disciplinarian stepfather. One of the psychologists called Thompson a “liar of the first magnitude” who made it “a way of life.” For Thompson, fabrication “became an exciting thing.”

Thompson’s family said he was gentle and shied away from conflict. He was a drum major in high school and a fairly successful student, getting in trouble just once for cutting class.

He served honorably in the Army and spent time in college. He was employed for a while by a fire department as a photographer. At the time of the murder, he worked as a boat repairman.

Like many capital punishment cases, Thompson’s pinballed through the state and federal court system.

In 1995, a conservative U.S. district judge appointed by President Ronald Reagan threw out the rape conviction and death penalty, concluding that Thompson’s lawyer had indeed been inadequate. The case against Thompson, he said, gave him “an unsettling feeling.”

But scarcely a year later a three-judge panel of the U.S. 9th Circuit Court of Appeals reinstated the death sentence, saying that the lawyer’s deficiencies during the trial were not enough to make a difference against the prosecution’s case.

It looked as though Thompson would be executed in August. But just 32 hours before he was to die, a special 11-judge panel of the 9th Circuit rushed in to block the execution, citing a procedural foul-up and saying that grave doubts existed about Thompson’s guilt.

But in April the U.S. Supreme Court reversed the 9th Circuit, stating that evidence against Thompson was too overwhelming to deny the state its right to an execution.

In a last-gasp effort to save their client, Thompson’s attorneys again returned to the appellate court in hopes that Leitch’s statements about seeing consensual sex would sway the justices. But late Saturday, another 11-judge panel of the court announced it would not stand in the way of Thompson’s execution.

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Times staff writers David Haldane and Geoff Boucher contributed to this story.

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To get an audio report from a Times staff writer assigned to witness the execution, go to The Times’ Web site: http://arstechnica.netblogpro.com/execution