Executed — but innocent?

In the nearly 40 years since California revived the death penalty, executioners at San Quentin have put 13 convicted murderers to death. But were they all truly the “worst of the worst” of the state’s killers? Were they all even killers?

There’s a strong argument to be made that at least one of the executed inmates, Thomas Thompson of Laguna Beach, may, in fact, not have been guilty of murder. At the very least, there is strong evidence that the “special circumstance” — rape — that made him eligible for the death penalty didn’t occur. So why was Thompson executed? Prosecutorial chicanery by the Orange County District Attorney’s office, questionable testimony from jailhouse snitches and a defense attorney who failed at some of the basic tasks of trial, including challenging evidence, according to appellate rulings and a post-execution analysis.

Thompson’s 1998 execution points to one of the most compelling of the many reasons to abolish California’s death penalty under November’s Proposition 62. A criminal justice system in which it’s often difficult to establish incontrovertible guilt should not be the vehicle for deciding life or death.

Thompson and his roommate, David Leitch, were both arrested several days after the partially clad body of 20-year-old Ginger Fleischli was found in an Irvine ditch on Sept. 14, 1981. Fleischli, who was Leitch’s former girlfriend, had been stabbed several times in the head. She was last been seen alive two days earlier when she spent an evening bar-hopping and smoking hashish in Laguna Beach with Thompson and Leitch. Thompson and Fleischli wound up back at the Leitch-Thompson apartment, where Thompson (who over time offered different stories) said he passed out after they had consensual sex. Some time later that night, Fleischli was killed on the apartment floor next to where Thompson was sleeping.

Both men were convicted of the murder in separate trials — trials in which the same prosecutor pushed contradictory theories of what happened that night. In pushing the first theory during a preliminary hearing for both men, the prosecutor relied on four jailhouse informants, one of whom testified that Thompson had told them that he and Fleischli had consensual sex and that Thompson then stabbed her to death at Leitch’s behest because Leitch feared Fleischli, aware of his drug habits, could ruin his hopes of reuniting with his ex-wife. In two pre-trial hearings, the court was told that Leitch was the “only person ... who has a motive” to kill Fleischli.

But when the prosecutor put Thompson on trial, he laid out a completely different theory of the crime, arguing that Thompson had raped Fleischli and then killed her to silence her, and that Leitch merely helped dispose of the body. The prosecutor summoned two different jailhouse snitches who testified that Thompson had told them as much (one citing incorrect details that mirrored erroneous news accounts). The rape allegation added the “special circumstance” that made Thompson eligible for the death penalty. Yet Thompson’s lawyer failed to challenge the autopsy report, even though he had an expert who offered a strong rebuttal during a preliminary hearing that a rape had even occurred. The lawyer, according to a later appellate ruling, also failed to fully challenge the two suspect informants.

Two years later, the same prosecutor won Leitch’s conviction using the original theory that Leitch had orchestrated the killing, and using the original snitches — while excluding the witnesses who helped convict Thompson. Leitch had threatened Fleischli in the past, and fibers and a shoe print linked him and his car to the dumping of the body.

So why wasn’t this miscarriage of justice uncovered in the appeals process, and why wasn’t the execution stopped? The 9th Circuit Court of Appeals did, in fact, throw out the conviction and harshly criticized the prosecutor’s use of two conflicting narratives of the same crime. But the U.S. Supreme Court, citing a missed deadline by the 9th Circuit, overruled that decision. Procedure trumped justice.

Was Thompson innocent of murdering Fleischli? We can’t know for sure. But he did not receive a fair trial. Prosecutorial gameplaying and inadequate legal counsel led to a questionable conviction, and to the death sentence. Voters need to end the abominable system that makes such a mockery of justice by voting yes on Proposition 62.