Implausible Testimony of Deep Sleep Puts Case to Bed

Of the many Orange County criminal trials I’ve covered over the years, several come to mind specifically because the defendant became his own worst enemy by testifying. Thomas M. Thompson of Laguna Beach--who faces execution Aug. 5--heads that list.

His story was that he had consensual sex with the victim, then fell asleep. When he woke up, she was gone. If she was stabbed to death in his Laguna Beach studio apartment during the night--blood stains indicate the murder happened right there--it didn’t wake him.

If her open clothing and cut bra indicated a sexual attack, if wounds show she was stabbed repeatedly, if her hands and arms showed evidence that she fiercely struggled for her life, he didn’t hear a thing.

If there was evidence of duct tape placed across her mouth, that she was bound at the feet and possibly handcuffed, if someone carried her body out, none of that commotion was enough to disturb Thompson’s slumber.

It was almost embarrassing to watch in the courtroom. Did Thompson believe that anybody on this planet was going to buy that line? The jury certainly didn’t. Thompson’s current appellate lawyer, federal Deputy Public Defender Quin Denvir, calls it “a tragic decision by Mr. Thompson to take the stand over his trial lawyer’s objections.”

Now Denvir is faced with what may be an impossible task: Trying to keep the state from sending Thompson to his death. After 13 years of appeals, Thompson’s execution has been set by Superior Court Judge Robert R. Fitzgerald, who presided at his trial for the Sept. 12, 1981, murder of Ginger Fleischli of Mission Viejo. It is scheduled to take place at San Quentin State Prison, where Thompson, now 42, has been living on Death Row since he was sentenced.

Denvir came up with a novel idea not long ago to try to help his cause. He asked seven former prosecutors to file a friend-of-the-court brief on Thompson’s behalf, stating that they believe he did not get a fair trial. There was no physical evidence of rape, they argued. (Rape was required for a death verdict.) And there were inconsistent prosecution theories between Thompson’s trial and the trial of his co-defendant, David Leitch, who is serving a 15 years-to-life sentence for second-degree murder in the case.

The courts so far don’t agree. At Leitch’s trial, the prosecutor stipulated he believed Thompson was the actual attacker. As far as the rape, the 9th Circuit Court of Appeals has found “strong evidence” of rape.

In fairness, others whose opinions I respect believe the evidence against Thompson was flimsy. But whatever chance Thompson might have had, he wiped it out by taking the witness stand. He was there next to all that blood and can’t explain it? It sealed his fate.

Thompson’s lies were devastating in the jury’s eyes. He started off telling a friend of Fleischli’s, who was looking for her, that he saw her leave the apartment with someone else. He later told other people he and Fleischli did not have sex. He changed that one when it was determined that semen found in the victim matched his blood type.

Denvir does make a point that’s not disputed. There is one difference between Thompson and the four previous inmates who were were executed at San Quentin. All of them, including Orange County serial killer William Bonin, admitted their crimes. Thompson still claims innocence. But I don’t think the state is going to get in the habit of executing only those who confess.

Though I admire Denvir’s efforts to do everything he can for his client, the “seven former prosecutors” tactic seems to be a stretch. The lawyers are really seven current defense attorneys. And when you read their brief, you see that some of it was actually written by Thompson’s appellate attorneys, who also paid to have it printed.

I’m on record opposing capital punishment. I just hope, for the benefit of Ginger Fleischli’s family, that Thompson will tell what really happened before lethal injection ends his life.

Staying Home: Deputy Dist. Atty. Mike Jacobs has been living with this case for 16 years. You’d think he would want to be there when Thompson is finally executed. Prosecutors are routinely invited in such cases. But Jacobs says he won’t attend if it happens.

“I did my job, I’ve got confidence the warden knows how to do his job,” Jacobs said. “I’ve got other work to do that day.”

Lying in Wait: Thomas Thompson certainly holds no records for longevity on Death Row among inmates from Orange County. Seven others prosecuted in courts here were already on Death Row when Thompson arrived in 1984. Only one of them, William Bonin, has been executed.

Awaiting appeal the longest is William C. Payton, who was sentenced to death more than 15 years ago. Payton, convicted of the rape and murder of a Garden Grove woman, has become known on Death Row for his religious fervor. He found God behind the gray walls of San Quentin. Jacobs happened to be the prosecutor at Payton’s trial too. He says Payton is still many years away from execution, partly because of a lengthy debate over whether his attorney adequately defended him.

I can recall when legal experts believed that Orange County serial killer Randy Kraft’s appeals would take at least 10 years. Kraft has now been on Death Row for eight years, and his appeal is barely past first base.

Wrap-Up: Whatever my feelings about Thompson’s guilt, I have empathy for Denvir, his attorney. Life for him right now, he said, is “hell on wheels.”

Denvir said he will file a new motion to try to get the sentencing date set aside. But he didn’t seem to have much hope that would accomplish anything, after 13 years of similar motions. Most of Denvir’s efforts will be put into a petition for clemency from Gov. Pete Wilson. Wilson is a strong death-penalty advocate who turned down the first four people who sought clemency from him.

“But Thompson is different,” Denvir claims, noting his client’s lack of a criminal background and his claims of innocence. “This may be that one rare case where the governor is willing to use his clemency powers.”