Death Penalty Case Grounded in Odd Legal Circumstances

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 legal predicament that brought California’s scheduled execution of the convicted rapist and murderer Tuesday to an abrupt halt.

Should a condemned man die because a few law clerks and federal judges goofed?

Or, was an appellate court decision blocking the execution of Thompson an effort to circumvent a new federal law meant to speed up capital punishment?

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 U. S. 9th Circuit Court of Appeals took the extraordinary step of ruling that it erred the first time his case was before it.

In a split opinion, an 11-member court panel said it had failed to intervene on Thompson’s behalf several months ago because of clerical gaffes and judicial misunderstandings. The explanation sounds like the sort of foul-up one hears of around the office water cooler, not in a capital case.

First, the case slipped between the cracks during a change of law clerks for one of the judges. When it surfaced again, the judge and one of his peers felt that the entire court should review the case, but erroneously believed a deadline had passed.

“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 the past 16 years for Thompson’s execution, say the 9th Circuit’s arguments defy the letter and 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, the rape conviction against Thompson was overturned by a U.S. District Court judge in Los Angeles, removing the special circumstance that along with the murder had put him on death row. The judge felt that Thompson had not gotten adequate representation by his defense attorney during trial.

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 Circuit had the opportunity to call for the case to be reviewed by an 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.”

J. Clark Kelso, a professor at McGeorge School of Law in Sacramento, 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 sidestep 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.”

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 types 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 stays by lower courts and order Thompson’s death. Wilkens predicted that the execution could take place next spring or summer.