A Travesty of Justice

By: Rita Barker

On the warm Sunday evening of July 12, about 65 people gathered at the YWCA in Oakland, Calif., to hear death-row prisoner Tom Thompson speak out at a “Live from Death Row” event – just 30 hours before his execution.

Tom spoke with a peace and eloquence that were inspiring and wrenching at the same time. He did not rant against the injustices he had suffered. He did remind us, however, that liberty is a precious gift which must be diligently guarded from those who would take it from us. Listening to him, many people had tears in their eyes.

Thirty hours later, Tom Thompson was dead, an innocent man executed by the state of California.

Tom was convicted of killing Ginger Fleischli in 1981. He was 26 at the time, with no prior arrest record or history of violence.

Tom always steadfastly maintained his innocence. At his trial, he testified that he and Ginger returned to the apartment that he shared with Ginger’s on-again-off-again boyfriend, David Leitsch, after a night of drinking and dancing. Tom said they had consensual sex, and then he fell asleep and never saw her again. He assumed that Leitch returned to the apartment and took Ginger home. A couple of days later, while Tom and Leitch were on a trip to Mexico, Ginger’s body was discovered in a plant nursery.

Leitch and Tom were both charged with Ginger’s murder, but they were tried separately. At Tom’s trial in 1983, prosecutors accused him of raping Fleischli and then killing her to cover up the crime. Leitch, they claimed, had only helped dispose of the body. Although the coroner testified that there was no physical evidence of rape, the jury was apparently swayed by the fabricated stories of two jailhouse informants who said that Tom has confessed to them (prosecutors had already used four different informants at a preliminary hearing). The jury also ignored defense witnesses who testified that Leitch had a motive for killing Fleischli and that he had in fact threatened to kill her to her face.

After Tom was found guilty and sentenced to death, the same prosecutor came before the same judge to try Leitch – and came up with a completely different story. The prosecutor now insisted that Leitch was the killer. And in fact, Leitch – unlike Tom – had an arrest record, including one arrest for assault, and several pieces of forensic evidence pointed to him. Leitch was convicted of second-degree murder and sentenced to 15 years to life in prison.

In March 1995, Richard Gadbois, a conservative federal judge appointed by Reagan, reversed Tom’s rape conviction and death sentence on the grounds that there was no substantial evidence of rape and that the circumstantial evidence that had been introduced could have been fully rebutted if Tom’s attorney had been minimally competent.

Gadbois refused to reverse the murder conviction because, in his view, there was not evidence of constitutional error – a difficult standard to meet. But his ruling suggested that the dismal performance of Tom’s trial attorney also cast doubt on whether Tom had played a role in the murder. The inconsistencies and questions in the case left the judge with an “unsettling feeling,” and he urged the state not to retry Tom on the rape charge because “the ends of justice would not be served.”

Nevertheless, in 1996, a three-judge panel of the 9th Circuit U.S. Court of Appeals ruled that the incompetence of Tom’s lawyer didn’t affect the verdicts. Tom requested a review by an 11-judge panel of the 9th Circuit, known as an en banc review, but it was denied in March 1997.

Tom’s petition to the U.S. Supreme Court was supported by a brief filed by seven ex-prosecutors, including the author of California’s death penalty statute. But the high court rejected the request, and an execution date was set for August 5, 1997.

In the meantime, Tom’s lawyers had uncovered new evidence of his innocence. They learned that Leitch had told law enforcement officers that he had walked in on Tom and Ginger having consensual sex – and that prosecutors had withheld the information from Tom’s attorneys. Withholding this evidence was a clear violation of the law.

State courts continued to deny any hearing on the new evidence. But less than a week before the execution date, the 9th Circuit suddenly granted an en banc review. On August 3, about 32 hours prior to execution, the 9th Circuit reversed the rape conviction and vacated the death sentence. “The prosecutor manipulated evidence and witnesses, argued inconsistent motives, and at Leitch’s trial essentially ridiculed the theory he had used to obtain a conviction and death sentence at Thompson’s trial,” the judges said in their ruling. The only thing consistent about the two trials, they said, was “the prosecutor’s desire to win at any cost.”

But California officials, never daunted in their thirst for blood and vengeance, tried to get the 9th Circuit’s opinion overturned by appealing to the U.S. Supreme Court. This time, the high court decided to review the case.

We all breathed a huge sigh of relief. Legal precedent was clearly in Tom’s favor. As long as the Supreme Court followed the law, the 9th Circuit opinion would stand. Finally, it appeared that a new trial, vindication and justice were within Tom’s grasp. We trusted that before long Tom would be given his life back. After all, this is America, where truth and justice are supposed to prevail. I realize now how naïve and misplaced that trust was.

On April 29, 1998, the U.S. Supreme Court, in a 5-4 opinion, ruled against Tom on the grounds that, while the 9th Circuit normally had the right to correct its mistakes, it waited too long in doing so – by four months. As outrageous as the high court’s blatantly political decision was, the state of California set a new execution date – July 14, 1998.

Tom’s lawyers made a new appeal covering the newly discovered evidence of Tom’s innocence of the rape – evidence which had been covered up by the state since 1981. But on July 12, the 9th Circuit decided that, because of the Anti-Terrorism and Effective Death Penalty Act of 1996, Tom would not be given a chance to present this evidence – and the execution would go forward.

That same evening, Tom spoke by phone to the group gathered at the YWCA in Oakland. He faced his impending death with a quiet courage at which I could only marvel. He said that he hoped his death would not be in vain – that it would cause people to see the truth about what has become of this country – that hatred and vengeance have become more important than justice. I promised him that I would do my best to see that he did not die in vain – and that I would keep speaking the truth as long as there is breath in my body.

At 12:01 a.m. on July 14, Tom Thompson was put to death, ostensibly in the name of Justice and in the name of the People.

I was present at Tom’s death, and I can attest that he had no fear on his face, only concern for us, his loved ones. He told us over and over that he loved us, and then he died, a remarkable, strong, courageous, innocent man. The only murderers present were the representatives of the state of California.

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