Thomas M. Thompson (California) Case Summary  Case Chart

Allegation

On July 14, 1998, the State of California, with the acquiescence of the federal government, executed Thomas Thompson by lethal injection. The state and federal governments not only failed to ensure Thompson’s right to a fair and impartial trial, they intentionally disregarded a federal court ruling that Thompson’s trial was unconstitutional. The unfair and unconstitutional trial resulted in Thompson’s execution.

Crime

On September 11, 1981 Ginger Fleischli was stabbed five times in the head and killed in Orange County, California. Fleischli had spent the evening with her former lover, David Leitch, Leitch’s new roommate, Thomas Thompson, and Leitch’s ex-wife. Fleischli went home with Thompson to an apartment Thompson shared with David Leitch, and had consensual sex with him. The next day, her body was found in a shallow grave. Both Leitch and Thompson were arrested and charged with Fleischli’s murder, and Thompson was charged with rape. Thompson and Leitch were tried separately and convicted; Thompson was convicted of both murder and rape.

Salient Issues

• Both the Federal District Court and the State Appeals Court threw out the rape conviction, which was the special circumstances that made Thompson eligible for the death penalty.
• Both the Federal District Court and the State Appeals Court held that it was probable that Thompson would not have been convicted of rape or sentenced to death if his attorney had been competent.
• Seven former prosecutors, including an author of California’s death penalty law, filed a brief on Thompson’s behalf in the U.S. Supreme Court, citing the prosecution’s manipulation of witnesses and facts in Thompson’s trial and expressing doubt about Thompson’s conviction.
• Evidence that Leitch, the other man convicted of the murder, witnessed Thompson and the victim engaging in consensual sex the night of the murder was revealed to state investigators and Leitch’s trial counsel prior to Thompson’s trial, and was reiterated by Leitch under oath at his parole hearing in 1995. This evidence, which was inconsistent with the prosecution’s theory that Thompson had raped and then murdered the victim to cover up the rape, was suppressed by prosecutors and only discovered by a defense investigator in 1997.
• An eleven-judge panel of the Federal Appeals Court found that the prosecutor manipulated evidence and witnesses in Thompson’s trial and later, at Leitch’s trial, presented evidence that discredited its own previous case against Thompson. It ruled Thompson’s death sentence erroneous and his trial unconstitutional.
• The U.S. Supreme Court reversed the judgment of the Appeals Court, ruling that the court, in a series of errors, took too long to reach the decision to vacate Thompson’s death sentence.
• The evidence that Thompson was innocent of the special circumstances that made him eligible for the death penalty was barred by the Ninth Circuit Court from consideration because of the Anti-Terrorism and Effective Death Penalty Act of 1996.

Trial

Thomas Thompson and David Leitch were tried and convicted separately, by separate juries. The prosecutor and judge were the same at each of the trials. Thompson was tried first, in 1983. At the preliminary hearing, the prosecution produced three jailhouse informants who testified that Thompson had confessed that he was hired by Leitch to help murder Fleischli, and after having consensual sex with her, Thompson had helped Leitch kill her. The prosecution subsequently rejected this theory and did not call these informants at trial.

At trial, the prosecution introduced a new theory – that Thompson had raped Fleischli and murdered her to cover up the rape. In this version of the murder, David Leitch solely helped Thompson dispose of Fleischli’s body. The earlier testimony of the three jailhouse informants was discarded, and two new jailhouse informants testified that Thompson had confessed to the rape and murder.

Leitch had been arrested more than once for assault and had previously threatened to kill Fleischli, including ten days before she was murdered. Several defense witnesses, including a police officer, testified to Leitch’s violent disposition, threats, and motive for the murder, but were discredited by the prosecution. The prosecution later used these same witnesses to convict David Leitch. Thompson was found guilty of both rape and murder, and because of the special circumstances of rape, was sentenced to death.

Appeals

In March 1995, a federal court heard Thompson’s appeal and reversed the rape conviction and the death sentence. The court found that there was no substantial evidence of rape or that Thompson had committed rape. The court also found that a competent attorney could have easily rebutted the circumstantial evidence used to convict Thompson and that Thompson’s attorney was incompetent in failing to discredit a notoriously unreliable jailhouse informant. The court declined to reverse Thompson’s murder conviction because of stringent legal hurdles for overturning convictions. However, it urged the state not to re-try Thompson on the rape, stating that the numerous inconsistencies in the case left the court with an "unsettled feeling."

In 1996, a three-judge panel of the U.S. Court of Appeals re-instated the rape conviction and the death sentence, finding that the incompetence of Thompson’s attorney would not have made a difference in the verdict. In May 1997, additional evidence surfaced concerning Thompson’s rape conviction. Two years earlier at a parole hearing, David Leitch testified that he had walked in on Thompson and Fleischli having consensual sex the night of the murder. Although Leitch said he gave this same information to police in 1981, he was never called to testify in Thompson’s trial. Leitch’s attorney corroborated that Leitch had always maintained Thompson and Fleischli had engaged in consensual sex. The parole board failed to pass this information on to Thompson’s attorneys in 1994, although they were required to do so by law.

Based on this new information, Thompson’s attorneys appealed his case again, asking for a hearing by the entire bench of judges of the Ninth Circuit of the U.S. Court of Appeals. Although the court initially denied the request, on August 3, 1997, an eleven-judge panel of the U.S. Court of Appeals found that it had erred in denying the original request and acted on its own motion to reverse Thompson’s rape conviction and vacate his death sentence. The court disclosed a series of internal clerical and procedural errors that had caused Thompson’s earlier appeal for a full bench hearing to be mistakenly denied. The federal panel found that the prosecution acted egregiously in Thompson’s trial by manipulating witnesses and evidence, arguing inconsistent motives, and, at Leitch’s trial, ridiculing its own theory of prosecution used to convict Thompson. Because Thompson’s murder conviction was linked to the rape conviction, the court referred the case back to the District Court to re-examine the validity of the murder conviction.

The State of California challenged the decision of the U.S. Court of Appeals. In a 5-4 decision, the United States Supreme Court overturned the lower court’s decision, upholding Thompson’s rape conviction and death sentence. The Court did this in spite of an unprecedented appeal by seven former prosecutors and an author of the California death penalty statute, which outlined substantial doubts about the prosecutor’s conduct and about Thompson’s guilt. The Supreme Court justified its decision based on the Anti-terrorism and Effective Death Penalty Act of 1996.

Conclusion

Thomas Thompson was executed despite a U.S. Court of Appeals ruling that Thompson failed to receive a fair trial and that the original criminal trial was unconstitutional. Thompson’s constitutional rights and international human rights were again violated by the direct actions of United States Supreme Court when it overturned the Court of Appeals decision despite overwhelming evidence of Thompson’s innocence and compelling evidence that he failed to receive a fair and impartial trial.

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