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Defense hopeful, victim’s family disappointed after execution postponed

August 5, 1997

SAN QUENTIN, Calif. (AP) _ Thomas Martin Thompson said goodbye to his family and was six hours away from being executed by injection when the U.S. Supreme Court decided to review his case.

The court agreed to delay Thompson’s execution, scheduled for 12:01 a.m. today, in order to consider whether an appeals court acted properly in reversing its own ruling and agreeing to review Thompson’s case.

``It’s a great victory for Thomas Thompson and the American justice system,″ said James S. Thomson, past president of the California Attorneys for Criminal Justice, who assisted the defense team.

Gov. Pete Wilson, who denied Thompson clemency, predicted the Supreme Court justices will rebuke the more liberal lower court and let the execution go ahead.

``They have agreed in record-speed time to review this case, which I think says something,″ Wilson said on NBC’s ``Today″ show. ``And I think when they do they’ll find that the 9th Circuit has abused the law and ignored the evidence.″

Thompson, 42, was sentenced to die for the 1981 rape and murder of Ginger Fleischli of Laguna Beach, his roommate’s old girlfriend, after a night of dancing and bar-hopping. He has maintained his innocence.

Jack Fleischli, the victim’s brother, was disappointed by the ruling, but believed Thompson would eventually be executed.

``My family is in this for the long haul,″ he said. ``We have patience, and when (the execution) occurs, we’ll be back.″

Thompson was about to be moved to the death watch cell when the decision came down from the nation’s top court.

``He had already said his fond farewells to family and friends,″ San Quentin prison spokeswoman Lt. Joy Macfarlane said.

The stay of execution followed an unusual turn of legal events, starting with an abrupt about-face by the 9th U.S. Circuit Court of Appeals on its previous ruling upholding Thompson’s death sentence.

The appeals court said Sunday that Thompson should not be penalized because two judges who had intended to seek review by the full court were unaware that they could do so after the deadline contained in the court’s rules.

In 1995, a lower court reversed Thompson’s rape conviction and ordered a new trial. A three-judge panel of the appeals court disagreed, but the full court said Sunday it appeared Thompson’s first lawyer didn’t try hard enough to fight the rape charge, which was the ``special circumstance″ that made Thompson eligible for the death penalty.

All nine Supreme Court justices conferred by teleconference and decided to consider two points: whether the appeals court, in agreeing to reconsider Thompson’s appeal, made an improper end run around a new federal death penalty law that generally limits prisoners to a single federal appeal; and whether the appeals court was allowed to revive the case after the normal time for review had expired.

Thompson was accused of raping and fatally stabbing Fleischli in the apartment he shared with Fleischli’s former boyfriend, David Leitch.

Leitch’s shoe print was found near Fleischli’s body, dumped in a grove of trees in Irvine, and he was convicted of second-degree murder.

A jury found that Thompson raped Fleischli, then stabbed her to keep her quiet. Thompson said he feared she would jeopardize a scheme he had dreamed up to smuggle refugees out of Southeast Asia for gold, according to testimony.

Thompson admitted having consensual sex with Fleischli but said he then passed out. His lawyers contend that Leitch is a likelier suspect.

At Leitch’s trial, prosecutor Michael Jacobs told jurors that Leitch was also in the apartment and had the only motive for murder _ anger that Fleischli had scuttled his chances of reconciling with his former wife.