Re a Certain Execution: Are We Sure What We’re Doing?

Over time, most of us accept uncertainty in life. Even Dennis Prager doesn’t know everything.

If it were up to me, one of the first phrases schoolchildren would have to memorize is: “Things are not always as they seem.” Instead, we unload eternal truths on our youngsters, who then spend the rest of their lives separating the wheat from the chaff.

While it’s true that some people become more absolute in their thinking the longer they live, the wiser among us grow more questioning. The celebrated 16th century French philosopher Montaigne, lauded for his probing insight, understood that. He insisted that a medal he was to receive carry the inscription: “What do I know?”

Allowing for the many subject areas that lend themselves to uncertainty, you’d think one that should be pretty well nailed down is that of whether to execute somebody. No need here to dwell on the inadequacy of the state conceding after the fact that someone shouldn’t have been put to death.

Yet look at how more and more muddled the capital punishment question seems to grow. Just when you want certitude and consistency, the question of who gets electrocuted/gassed/injected looks less so all the time.

The current situation involving former Orange Countian Thomas Thompson, now holed up in San Quentin, speaks directly to the issue. Thompson, convicted of the 1981 rape and murder of 20-year-old Ginger Fleischli, was scheduled to be dead by now.

He was supposed to be lethally injected Tuesday, but on Sunday afternoon, the 9th U.S. Circuit Court of Appeals halted the execution, writing in an interesting play on words that a “grave question exists” whether Thompson raped Fleischli. If he didn’t, he wouldn’t be eligible for the death penalty.

I’m not lobbying for Thompson, per se. I’m not a student of the case. I don’t know if he’s guilty or innocent of murder. I don’t know if he raped or didn’t rape the young woman.

What I’d like, though, is certainty that he did. Then, even though I don’t support capital punishment, I’d spend much less time fretting over Thompson’s fate.

The prosecution is unwavering in its belief in Thompson’s guilt. So are many other people who have read the transcripts. Interestingly, though, at least a few other prosecutors who reviewed the case have said they aren’t convinced of his guilt. In addition, the federal judges who rescued Thompson Sunday wrote that an earlier court decision to let the execution proceed was based on errors of law “that if not corrected would lead to a miscarriage of justice.”

Certainty.

Is that too much of a standard to require before California executes someone? Yes, the circuit court majority that spared Thompson may be dead wrong. Yes, it may be a liberal-leaning group that introduced politics into the case. But it may also be correct.

Most people who are “certain” of Thompson’s guilt are, in truth, certain only to a point. They don’t have a confession from Thompson and only know the evidence as presented by the prosecution and defended against by Thompson’s lawyers. Flaws on either side of the table could skew the strength of the case. Thompson’s alibi that he slept while someone attacked Fleischli near him sounds highly implausible, but implausibility occasionally visits our planet.

If certainty is too much to ask in capital-punishment cases, how about consistency?

Two other recent cases, which to me seem remarkably similar, come to mind.

Last December, a Los Angeles jury gave life in prison to photographer Charles Rathbun for his brutal sexual assault and murder of model Linda Sobek.

A few months later, an Orange County jury recommended death for John J. Famalaro, convicted of sexually assaulting and killing Denise Huber. The details of her death, as presented in court, were equally gruesome.

Yet one was spared a death sentence and the other wasn’t.

Consistency.

No doubt, many people will cry that the injustice is that Rathbun wasn’t given the death penalty. They should remember, however, that the prosecutor didn’t even ask for the death penalty, citing, among other things, the absence of a previous criminal record for Rathbun. Famalaro had no prior record either.

If Thompson eventually is executed (and there’s a good chance of it), many people will say with total certainty that he got exactly what he deserved.

Many others, however, willing to confess to what they don’t know for sure, will always wonder.

Dana Parsons’ column appears Wednesday, Friday and Sunday. Readers may reach Parsons by calling (714) 966-7821, by writing to him at The Times Orange County Edition, 1375 Sunflower Ave., Costa Mesa, CA 92626, or by e-mail at dana.parsons@latimes.com.