Stay of Execution Just Raises New Questions in Novel Case

The execution is off for now. The fate of Thomas M. Thompson rests with the U.S. Supreme Court, which has agreed to settle an unprecedented and thorny legal problem that brought to an abrupt halt California’s scheduled Tuesday execution of the convicted rapist and murderer.

Should a condemned man die because a few law clerks and federal judges goofed? Or was an appellate court decision to block the execution of Thompson an end run around the new federal law aimed at limiting death row appeals?

Thompson, convicted of the 1981 rape and murder of 20-year-old Ginger Fleischli of Orange County, was spared a trip to San Quentin’s death chamber when the 9th U.S. Circuit Court of Appeals took the extraordinary step of ruling that it messed up the first time his case was before them.

In a 7-4 opinion, a panel of the court said it failed to intervene on Thompson’s behalf and correct its errors when it should have earlier this year, because of clerical gaffes and judicial misunderstandings. Their explanation reads like the sort of foul-up one hears about around the office water cooler, not in a capital punishment case.

First, the case slipped between the cracks during a change of law clerks for one of the judges. When it bobbed up again, the judge and one of his peers felt the entire court should review the case, but erroneously believed a deadline for reviewing a decision by a three-member panel of the same court was past.

“You can’t execute an innocent man because a law clerk, someone who graduated a year ago, made a mistake,” said Greg Long, Thompson’s attorney. “The reason we’re all here is to do justice, not bend down on our knees to finality in the legal process.”

Prosecutors, who have pushed for Thompson’s execution for years, say the 9th Circuit’s arguments defy the letter and the spirit of a new federal law intended to speed up the death penalty process by restricting convicts to a single appeal in federal court.

Moreover, they suggest that a liberal wing of the 9th Circuit is simply doing whatever it can to postpone Thompson’s execution with “eleventh-hour manipulations.”

His case has indeed traveled a byzantine path.

In 1995, a U.S. District Court judge in Los Angeles overturned Thompson’s rape conviction, removing the “special circumstance” that--along with the murder conviction--put him on death row.

After a lengthy review of the court record and fresh testimony, the judge decided that Thompson’s trial attorney did such a poor job of defending him on the rape charge that he didn’t meet the constitutional requirement of an adequate defense.

A year later, a three-judge panel of the 9th Circuit reversed that decision, saying the defense attorney’s perceived inadequacies didn’t really make any difference, because of the strength of the government’s case against Thompson.

At that point, all 19 judges who make up the 9th U.S. Circuit Court of Appeals had an opportunity to call for the case to be reviewed by a larger, 11-judge panel. But not one of them called for the so-called en banc review at that time.

The case went to the U.S. Supreme Court, which declined to take up Thompson’s case, thus affirming the ruling against him and setting in motion his execution.

Holly Wilkens, the supervising California deputy attorney general, said the 9th Circuit’s decision to block Thompson’s execution now essentially places the lower court in a position of superseding the U.S. Supreme Court.

“Essentially, we have a final judgment that has been to the highest court in the land; then we have a lower court reviving it, revisiting it,” Wilkens said. “At some point enough is enough. You have to have finality in the law.”

Or, as one of the dissenting 9th Circuit judges wrote, “It is not every day that a court of appeals . . . reconsider(s) a [case] that has already been presented to--and rejected by--the Supreme Court. . . So far as I know, this is a first anywhere, any time.”

J. Clark Kelso, a professor at McGeorge School of Law, said the controversy over the 9th Circuit decision on Thompson seems more a demonstration that the judges “are not communicating well as a group” than a sign of a Machiavellian plot to circumvent a new federal law limiting death row inmates to a single federal appeal.

“This opinion sounds like a judicial circus,” Kelso said. “The court seems to be a little out of control.”

Joseph Schlesinger, former senior staff attorney for the 9th Circuit, said, “It’s certainly unusual for the court to be airing its dirty laundry in public, and to admit in a published opinion that the court, or at least some of the judges, didn’t understand internal court procedures.”

But Kelso agreed that the Thompson case would present “tough” issues for the U.S. Supreme Court. “This is not the Robert Alton Harris kind of case,” Kelso said, referring to the San Diego murderer who in 1992 became the first man to die in California since the state reinstituted the death penalty. “The physical evidence in the Thompson case is not as strong.”

Tim Foley, a San Francisco attorney who has argued several capital cases before the 9th Circuit, said death penalty opponents were “relieved” Tuesday that Thompson had beaten the executioner--for now.

“But that relief is mixed with concern that in this day and age these type of clerical errors can happen and not be caught until just before the scheduled execution,” Foley said. “It never should have come down to this last-minute business.”

Denise Gragg, an Orange County deputy public defender who handles death penalty cases, said the 9th Circuit opinion raised serious issues about whether Thompson is guilty.

“It seems clear that this is not just some eleventh-hour defense technicality in an effort to save a guilty man,” Gragg said.

Though upset over the delays, prosecutors remained confident that the Supreme Court will use Thompson’s case to crack down on last-minute stunts by the lower courts and order Thompson’s death. Wilkens predicted the execution could take place next spring or summer.