PsN EIEN iN 6 Ho Retro vo
In re THOMAS M. THOMPSON
CAPITAL CASE
EXECUTION SCHEDULED
FOR AUGUST 5, 1997
PETITION FOR EXECUTIVE CLEMENCY _
DIRECTED TO
THE HONORABLE PETE WILSON
GOVERNOR OF STATE OF CALIFORNIA
QUIN DENVIR,
SBN #49374
801 K Street, 10th Floor
Sacramento, CA 95814
(916) 498-5700
ANDREW S. LOVE,
SBN #119990
LAW OFFICES OF COFFIN &
LOVE
301 Pennsylvania Avenue
San Francisco, CA 94107
(415) 920-3705
GREGORY A. LONG,
SBN. #57642
SHEPPARD, MULLIN,
RICHTER & HAMPTON
333 South Hope Street, 48th Floor
Los Angeles, CA 90071
(213) 620-1780
Attorneys for
THOMAS M. THOMPSON
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INTRODUCTION
The power of clemency exists because the people recognize that, no
matter how careful the attempt, the courts do not in every case achieve Justice. The
people have given the Governor the power and the responsibility to do justice in those
cases, not — the application of a rule of law, but through the exercise of common
sense, compassion, and conscience. From 1941 to 1974, the governors of California
granted clemency 41 times, basing their decisions on a number of factors. These have
included a lack of prior criminal record or history of violence, honorable service in the
armed forces, good efit and employment records, newly discovered evidence not
presented to the jury that casts doubt on the faimess of the process, recommendations
for clemency by jurors who sat on the case, doubts about the defendant's guilt of the
capital offense, doubts about the adequacy of the legal representation afforded the
defendant at trial, and the petitioner's good adjustment to life in prison.
Tom Thompson's petition is unique because it presents a compelling case
as to every one of these factors. If clemency exists because the people intended it to be
exercised in the sificcaesil case this is that case. It would be difficult to construct one
more worthy.
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_ Mr. Thompson has no previous criminal record or history of violence.
He graduated from high school and earned 67 units of credit with a B average from
Santa Ana City College and California State University at Fullerton. He was
honorably discharged from the United States Army and recived three promotions and
four letters of commendation for exceptional service from his commanding officers.
He held a number of responsible jobs, including one as the photographer for the
Santa Ana Fire Department. He has been a model prisoner on death row. Guards at
San Quentin have stated that he is respectful of authority and has "exceptional
relationships with guards and inmates.” He is credited by one guard with preventing
the murder of a correctional officer, and one of the guards said of him, "If anyone
could be salvaged from death row, it would be Tom Thompson.” While in prison, Mr.
Thompson developed a relationship with a woman and married her. Mr. Thompson
has taught himself to paint, and as can be seen from the photographs of his work which
are attached (Exhibit 25), has become an accomplished painter.
Richard A. Gadbois, Jr., the United States District Judge who presided
over a three-day evidentiary hearing during Mr. Thompson's federal habeas corpus
proceeding, vacated the rape conviction and rape special circumstance finding, as well
as the death penalty, finding that Mr. Thompson's constitutional right to the effective
assistance of counsel had been violated. This highly respected former California state .
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criminal tial judge appointed by President Reagan, in the final paragraph of his order,
stated:
"Before concluding; the Court wishes to express its view
that the ends of justice would not be served by retrying
_Petitioner on the rape charges. While the Court found that -
Petitioner's remaining claims do not rise to the level of
constitutional error, many of them nevemens leave the
Court with an unsettling feeling. The disparate convictions
and sentences of Thompson and Leitch, for example, while
legally permissible, are roubling to this Court given the
intensity of public perceptions in these cases and the
deficiency of certainty regarding relative culpabilties.
These concerns should be carefully considered by the State
when deciding if society would be best served by retrying
these charges, now almost fourteen years old ....""
Judge Gadbois formed these views even though he did not have available
to him startling new evidence of Mr. Thompson's innocence of the rape. We have
recently learned that in January, 1995, Mr. Thompson's co-defendant, David Leitch,
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testifidd at his parole hearing, attended by a representative of the Orange County
Fi
District Attorney's Office, that he had renmed to his apartment only an hour or so
before Ms. Fleischli died, had walked through the unlocked door and had seen
Mr. Thompson and Ms. Fleischli having consensual intercourse. This testimony not
only negates the prosecution's rape case and its proffered motive for murder, it also
places Mr. Leitch, by his own admission, in the apartment while Ms. Fleischli was
alive. Despite the pendency of the federal habeas corpus action, the State did not
reveal this information to Mr. Thompson's attorneys.
Further, Mr. Leitch recently stated that he had given the same
information to his defense attorney in 1982 and that the information had been known to
the police and the prosecutors at that time. Ronald Kreber, then Mr. Leitch's defense
attorney and now a judge of the Orange County Municipal Court, confirmed that Mr.
Leitch had given that version of the facts in 1982. Mr. Owens, one of the Orange
County Sheriffs detectives who had been responsible for investigating the case.
recently confirmed that he had been aware of that version of the facts at the time of
Mr. Thompson's trial. Nevertheless, neither Mr. Thompson's, the jury, nor any court,
had an ee to consider that evidence. Coupled with the evidence presented by
Mr. Thompson at the federal evidentiary hearing which convinced Judge Gadbois to
overturn the rape conviction (the only special circumstance), this new evidence both
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points Mr. Thompson's innocence and renders the functioning of the judicial process in.
this case spent
Having reviewed the evidence presented at the evidentiary hearing, but
not yet the newly discovered evidence, two of the trial jurors who voted to sentence
. Mr. Thompson to death now have doubts regarding the case and believe that his death
sentence should be reduced to life without the possibility of parole. .
Although both the prosecutor and the trial judge who prosecuted and
presided at both trials have stated that only Leitch had a motive to kill Ms. Fleischli
and that he was the motivating factor behind the murder, yet Mr. Leitch is —s
eligible while Mr. Thompson has an mist 5 execution date.
Seven former prosecutors, including Donald Heller, the principal
draftsperson of the California death penalty statute; Peter Hughes, Chairman of the
Board of Trustees of the University of San Diego; Curt Livesay, who as the chief
deputy district attomey for Los Angeles County reviewed more than 1,000 capital
cases to decide whether to seek the death penalty; M. James Lorenz, the former United
States Attorney for the Southern District of California; Richard Gilbert, a retired judge
of Placer County and former District Attomey of Yolo County; Wayne Ordos, former
Executive Director of the California Fair Political Practices Commission; and Steve
White, the former Executive Director of the California District Attorneys Association,
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former Chief Assistant Attorney General of California, and former District Attorney of
Sacramento County, all urged the United States Supreme Court to grant a writ of
serdiocati in this case.
While they "believe in the imposition of the death penalty in an
appropriate case, where the death sentence is the product of fair and reliable
proceedings," in this case, they concluded that "there are many disturbing aspects to
the convictions and death sentence rendered and upheld in Thompson's case that leave
us with little confidence that the death penalty is appropriate in this case.”
These former prosecutors, who collectively have evaluated or tried thousands of capital
cases, all of whom believe in the imposition of the death penalty in the appropriate
case, concluded:
In short, this is a case where it appears that our adversarial
system has not produced a fair and reliable result, which
“leaves us, as it did District Judge Gadbois, with ‘an
unsettling feeling.”
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LEO EMEN
IN CALIFORNIA CAPITAL CASES
— "Clemency involves a search for answers that goes beyond judicial fact-
finding. ..." Janice Rogers Brown, The Quality of Mercy, 40 U.C.L.A. L.Rev. 327,
335 (1992). ,
— "Any capital sentencing scheme may occasionally produce aberrational
outcomes.” Pulley v. Harris, 465 U.S. 37, 54 (1984).
— "Executive clemency has provided the ‘fail safe’ in our criminal justice ,
system.” Herrera v. Collins, 506 U.S. 390, 415 (1993).
The constitutional authority to grant clemency entrusts the Executive
with the indispensable role of "preventing miscarriages of justice where the judicial
process has been exhausted." Herrera v. Collins, 506 U.S. 390, 412 (1993). As Chief
Justice Rehnquist has stated, "It is an unalterable fact that our judicial system, like the
human beings who administer it, is fallible." Herrera, 506 U.S. at 415. Clemency, "a
check entrusted to the executive for special cases" (Ex Parte Grosman, 267 U.S. 87,
120 (1925)), allows for fallibility to be replaced with faimess.
Justice Janice Rogers Brown has written that "{t]he clemency process is
an exer¢ise of common sense and compassion rather than a rule of law,” and mercy is ;
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properly left to the conscience of the executive unbound by court decisions. Brown,
op. cit. at 328. This is only right, because the traditional judicial concern is with error,
not outcome. Because of the constraints of the rules that reviewing courts must use in
measuring legal error, the judiciary cannot always achieve a just result. For example,
evidence adjudged to have been presented untimely will go judicially unheeded, even
if such evidence points to a defendant's innocence. Clemency, in contrast, has served
as the "traditional remedy” for claims of new evidence, such as those presented here.
Herrera, 506 U.S. at 416. In Carriger v. Stewart, 95 F.3d 755, 761, (9th Cir. 1996),
the court recognized that even when doubts regarding guilt do not satisfy the .
exceedingly high standard required for relief by the courts, the Executive is free to
consider the weight of the evidence. "That the evidence against [the petitioner] is not
overwhelming might well be considered by the governor in exercising his power of
executive clemency.”
Additionally, the Executive is not bound by the sometimes narrow legal
principles limiting the factors that courts may consider in reviewing capital sentences.
For example, the settled rule is that California courts cannot perform an intercase
proportionality otiew to determine if the penalty imposed in a particular capital case
is disproportionate to the penalty imposed in other capital cases. See Pulley v. Harris,
supra, 465 U.S. at 50-53; People v. Marshall, 13 Cal. 4th 799, 854 (1996). Thus,
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proportionality with respect to other cases, a very important consideration in
Thompson's case, can be achieved only within the clemency process. In addition,
California courts do not engage in an intracase proportionality review to evaluate the
defendant's sentence in comparison to that received by co-defendants culpable for the
same offense. See People v. Sanchez, 12 Cal. 4th 1, 84-85 (1996); People v: Arias, 13
Cal. 4th 92, 193 (1996). Again, proportionality with regard to the sentence of the
codefendant Leitch is a very important consideration in Thompson's case, and can be
addressed only in the context of the clemency decision.
In this regard, it is fundamentally unfair that one defendant be escorted
into the death chamber, while another equally or more culpable defendant is eligible
for parole. In such instances, the Executive may exercise his power to grant clemency,
not out of sympathy for a defendant, but so that it may not be said that the State failed
in meting out even-handed justice. Clemency is a way of bringing law, justice, and
mercy into harmony.
Clemency is an integral part of California's system of capital punishment,
which serves a purpose other than simply certifying that no legal error has occurred.
Courts, both eda and state, have recognized that the clemency authority will
scrutinize and evaluate cases on grounds beyond those considered by the courts. See,
e.g., Herrera, 506 U.S. AT 411-417; Gregg v. Georgia, 428 U.S. 153, 199 n.50 (1976);
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People v. Superior Court, 190 Cal. 624, 625 (1923); People v. Mooney, 176 Cal. 105,
109 (1917). Over the years, California governors have generally done just that in
appropriate cases. See Brown, op. cit. at 328.
EXECUTIONS AND COMMUTATIONS OF ,
GOVERNOR EXECUTIONSY COMMUTATIONS”
Culbert Olson (1941-1942) 19 3
Earl Warren (1943-1953) 82 8
Goodwin Knight (1953-1958) 41 6
Edmund G. Brown, Sr. (1959-1966) 35 23
Ronald Reagan (1967-1974) 1 1
Pete Wilson (1990-present)” 4 2
182 41
y The figures for executions are taken from William J. Bowers, "Executions in
America” (1974), pp. 226-231.
a
The figures for commutations of death sentences are taken from the appendix to
the Governor's 1979 Executive Clemency Report to the Legislature.
¥ There were no executions or commutations of death sentences during the terms
of Governors Deulanejian or Edmund G. Brown, Jr.
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Thus, in the last fifty years, the Governors of California commuted death sentences in
approximately 18 percent of the capital clemency cases that they have reviewed.
In granting clemency in these capital cases, California governors have
cited and relied on a number of factors each one of which is present in Mr. Thompson's
case: .
1. Affirmative aspects of the inmate's background,.character or
history suggesting the aberrational nature of the offense as an event in the inmate's life
or the inmate's capacity for rehabilitation, or otherwise suggesting the appropriateness
of granting mercy to the inmate, including (a) lack of prior criminal record,” (b) no
prior history of violence,’ (c) honorable service in the armed forces,” (d) a good work
record,” and (e) educational accomplishment.” Mr. Thompson had no criminal record
%
Commutation Decrees: Charlies James Golston, May 2, 1963; Charles Evan
Turville, Jr., November 5, 1959; Edward Simon Wein, June 4, 1959; John
Russe! Crooker, Jr., January 14, 1959; Ewell Danieily, June 1, 1949; Jack-D.
Green, January 4, 1934. See also Report of Clemency Secretary Arthur L.
Alarcon dated February 5, 1962 re Bertrand Joseph Howk, Jr., at p. 9 (Howk's
death sentence was commuted on February 12, 1962).
y Commutation Decrees: Charles James Golston, May 2, 1963; Stanley William
Fitzgerald, April 23, 1962.
a Commutation Decrees: Charlies Evans Turville, Jr., November 5, 1959; Edward
Simon Wein, June 4, 1959; John Russel Crooker, Jr., January 14, 1959; Ewell
Danielly, June 1, 1949.
i
y Commutation Decree, Robert L. Mason, August 19, 1960.
(continued...)
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or history of violence, was honorably discharged from the United States Army, held a.
number of responsible jobs, and earned a college education.
2 Information that may have materially affected the jury's
sentencing decision that was never presented to the jury such as newly discovered
evidence,” or evidence that was available at the time of trial but never produced in
court.” Here important evidence went undiscovered by Mr. Thompson's trial counsel
while other critical evidence was suppressed by the prosecution.
3. Doubt as to the inmate's guilt of the capital offense including
doubts based on the trial record,” on newly discovered evidence,” or on evidence
4...continued)
J Commutation Decree, John Russel Crooker, January 14, 1959.
= Press release issued by Governor's Office on June 29, 1967 explaining
commutation on that date of death sentence of Calvin Thomas; Commutation
Decrees: William Lee Harrison, October 3, 1963; Charles James Golston, May
2, 1963; Bertrand J. Howk, Jr., February 12, 1962; Vernon Atchley, August 22,
1961; Allen Ellis, July 17, 1929.
a Commutation Decrees: Clarence Edward Ashley, June 17, 1963; Eweil
Danielly, June 1, 1949; Alfred Harrison, February 15, 1934.
uy Commutation Decrees: Harry Langdon, October 8, 1959; Edward Simon Wein,
June 4, 1959.
Press release issued by Governor's Office on July 18, 1958 announcing
Governor Knight's intention to commute the death sentence of Remmel Wayne
Brice (sentence commuted on August 8, 1958). ;
(continued...)
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available as of the time of tial but never presented to the jury.” There is considerable
doubt as to Mr. Thompson's culpability of capital murder.
4. Recommendations of participants in the inmate's trial such as a
member of the sentencing jury recommending clemency.“ Two of Mr. Thompson's
jurors now recommend clemency. (Exhibit 28).
5. Doubts as to the fairness of the inmate's trial and/or the adequacy
of his legal representation.’ Mr. Thompson's trial was unfair both because the
prosecution pursued inconsistent theories against him and his codefendant and
suppressed material exculpatory evidence and also because of his tial's counsei's
ineffective assistance.
6. Intra-case sentencing disparity, the disparity between the sentence
imposed on the condemned inmate and that imposed on equally or more culpable
2. continued)
y Commutation Decree, Clarence Edward Ashley, June 17, 1963.
oad Commutation Decrees: William Lee Harrison, October 3, 1963 (Governor
Brown); Edward Wesley Brown, May 14, 1947 (Governor Warren).
y Commutation Decrees: Clarence Edward Ashley, June 17, 1963; Jack D. Green,
January 4, 1934.
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codefendant(s).” Here the disparity could not be more — Mr. Thompson
faces death while Mr. Leitch is eligible for parole.
ve Inter-case sentencing disparity, the disparity imposed on a
condemned inmate and that imposed on others who had committed comparable
crimes, The California Supreme Court has decided seven capital cases in which the
defendant had been convicted of first degree murder with a rape special circumstance.
Thomas Thompson is the only one of the seven to have no prior arrest or prior violent
activity. See People v. Brown, 40 Cal. 3d 512, 220 Cal. Rptr. 637, 709 P.2d 440;
People v. Ghent, 43 Cal. 3d 739, 239 Cal. Rptr. 82, 739 P.2d 1250 (1987); People v.
Payron, 3 Cal. 4th 1050, 13 Cal. Rptr. 2d 526, 839 P.2d 1035 (1992); People v.
Rowland, 4 Cal. 4th 238, 14 Cal. Rptr. 377, 841 P.2d 897 (1992); People v. Clark, 5
Cal. 4th 950, 22 Cal. Rptr. 689, 857 P.2d 1099 (1993); People v. Berryman, 6 Cal. 4th
1048, 25 Cal. Rpt. 867, 864 P.2d 40 (1993).
oa Commutation Decrees: Norman Arthur Whitehorn, December 2, 1963; Charles
Evan Turville, Jr., November 5, 1959; Alfred Harrison, February 15, 1934.
Commutation Decree, Edward Wesley Brown, May 14, 1947.
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8. The inmate's good adjustment to prison life and the fact that he
has presented no custodial problems and is unlikely to do so in the future.”
Mr. Thompson's adjustment to prison life has been extraordinary and constructive.
These factors have been considered as well by other state executives
" whose decision have accorded due weight both to lingering daubt about a defendant's
guilt and to the proportionality of the defendant's sentence compared to that of an
equally or more culpable codefendant, two important considerations in Mr.
Thompson's case. See Michael L. Radelet & Barbara A. Zsembik, Executive Clemency
in Post-Furman Capital Cases, 27 U. Rich. L. Rev. 289, 300 (1993).
In an imperfect, overloaded, and increasingly rigid system of criminal
justice, the extrajudicial corrective of executive clemency, mandated by the people,
provides a safety valve for the system. See Herrera, 506 U.S. at 415. Clemency
permits the Governor to go beyond the narrow confines of the judicial process, and to
consider what Justice Cardozo has described as "anything that is pertinent that may
move the mind to doubt or the heart to charity." Andrews v. Gardiner, 121 N.E. 341,
343 (1918). As the final procedural step in a capital case, clemency review serves a
special protective function in ensuring that the decision to take an inmate's life is the
‘W Commutation Decrees: Emest Leroy Jacobson, December 5, 1966; Norman
Whitehorn, December 2, 1963; William Lee Harrison, October 3, 1963;
Clarence Edward Ashley, June 17, 1963; Charles James Golston, May 12, 1963.
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right one. See Woodward v. Ohio Adult Parole Authority, 107 F.3d 1178, 1187 (6th
Cir. 1997), noting "the integral part played by clemency in every state's death penalty
scheme.”
Possessing the final authority over executions, the Executive is given
both the power and the flexibility to protect the integrity of the judicial spate which
otherwise would sometimes permit a grievously unjust result As Edmund Burke
recognized: "Mercy is not a thing opposed to justice. It is an essential part of it ...."
Choosing whether another is to live or die is a daunting responsibility. As long as the
Governor is entrusted with the clemency prerogative, "the decision to allow a life to be
extinguished will be a very hard thing to do. It should be." Brown, op. cit. at 337.
THOMAS M. THOMPSON
A. Early Life
Tom Thompson was born in Chicago, Illinois on March 20, 1955. He is
42 years old. His parents, Jerry and Ingeborg Thompson, divorced when Tom was five
years old. About a - later, Tom's mother met and married Ed Lochrie, a decorated
former Marine officer and national sales manager for Simoniz. Mr. and Mrs. Lochrie,
Tom, and his sister Nancy, who was born on March 20, 1956, moved to New York
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where Mr. Lochrie held positions in the sales departments of major corporations. Tom
attended itiseegirten hoon fourth grade in New York, where he also attended
Sunday school at the family church.
In 1966, the Lochries, who now included Lisa, Tom's new sister, moved
to Orange, California, to the home where Mrs: Lochrie still resides. Tom.completed
the fifth through the ninth grades at local schools and attended Villa Park High School
through the tenth and eleventh grades, where he was in the high school band and
worked at three jobs to earn spending money.
Tom decided to live with his natural father during his senior year in high
school. He graduated from Elgin High School in Elgin, Hlinois in 1973. (Exhibit 1).
During his senior year, he worked at Dominic's Market to earn his spending money.
After graduation, Tom returned to Orange, where he worked in a service station as a
mechanic. Two photographs of Mr. Thompson, as a young boy and as a young adult,
are attached. (Exhibits 2 and 3).
B. Service In The United Stat Iv
In 1973, at the age of 19, Mr. Thompson joined the army. During his
two years of active duty, he was promoted three times from private to specialist fourth
class. During his advanced individual training at Fort Sill, Oklahoma, he was
commended for his outstanding performance of duty. (Exhibit 4). While on active
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duty, he also served at Fort Ord and, for seventeen months, with the Seventh Army in
Germany. He received three letters of commendation from two commanding officers
who commended his outstanding performance and who noted that he was a "diligent,
imaginative and competent worker" who "could be trusted to accomplish complex
tasks sigahiy? (Exhibits 5, 6 and 7). His enlisted evaluation report, completed in «
1976, described him as "an outstanding soldier." He was given the highest possible
rating for his personal behavior and his ability to work with others, and both his first
sergeant and company commander stated that if they had had the authority they would
have promoted him immediately. (Exhibit 8). During his service, he earned the
National Defense — Medal and an M-16 rifle marksman badge. (Exhibit 9).
Mr. Thompson was relieved from active duty in March, 1976 and transferred to the
United States Army Reserve from which he received a honorable discharge in March,
1980. (Exhibits 10 and 11).
C. — Post-Service Education And Employment
After his discharge, Mr. Thompson returned to California where he
enrolled at Santa Ana College in the fall of 1976. He successfully completed 64 units
of study with a cumulative B average. His courses included three photography courses
and a two-dimensional design course. During this time, he began developing his skills
asa photographer. Examples of his photographs are attached as Exhibits 12, 13 and
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14. He took additional course work at California State University at Fullerton,
including a commercial photography class in which he received a grade of A.
In 1977, Mr. Thompson was employed by the City of Santa Ana as an
equipment maintenance employee. in September, 1978, he transferred to the
Sania Ana Fire Department as a photo lab technician and photograptier for the city fire
department. There, he received good performance reviews,,was commended for his
very good attitude, and was recommended for a merit step increase. (Exhibit 15) In
February, 1980, Mr. Thompson resigned from the fire department to accept a job as a
materials supervisor for Fluor Engineers Inc. in Saudi Arabia. Laid off in a staff
reduction, he returned to California and was supporting himself with odd jobs when he
met David Leitch and moved into his apartment in 1981.
In his more than 12 years on death row at San Quentin, Mr. Thompson's
adjustment to the rigors and discipline of incarceration has been excellent. He was
active in the Veterans’ Group at San Quentin and participated in the group's efforts to
raise money for the Muscular Dystrophy Association. (Exhibit 16). From December,
1984 to December, 1986, when the program was terminated, he was assigned to the
Condemned Workers Program, where “he performed his duties in an excellent manner
b
which contributed to the orderly operation of Donner Section where he was assigned as
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a Block Worker" and "need[ed] no supervision in making sure things get done, [and]
[was] always ready to assist the other workers in their tasks." (Exhibit 17). Following
the termination of the worker program, Mr. Thompson continued for almost two years
to volunteer to clean showers on the prison tier, where “he [did] an exceptional job
with the minimal tools available" and "demonstrated an excellent attitude." (Exhibits
18, 19 and 20). This work, as well as his service as the volunteer telephone
coordinator, helped the tier officer "run a timely and harmonious tier." (Exhibit 21).
Thompson has had an excellent disciplinary record. He has never been charged with
an infraction involving correctional officers, civilian staff, weapons, or contraband. ;
Incidents with other inmates resulted from other inmates attacking Thompson.
(Exhibits 22, 23 and 24).
One correctional officer, a 14-year veteran at San Quentin, states that of
the couple of hundred death row inmates he has known, Thomas Thompson is one of
only two that the officer would testify for. That officer describes Mr. Thompson's
intervention to prevent the murder of a prison guard and notes that "Tom always had a
calming effect on the tier" and "was always respectful toward staff.” The officer
concludes that Mr. Thompson "is in a class by himself" and "[i]f anyone could be
salvaged from Death Row it would be Tom Thompson.” (Exhibit 26).
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Another correctional officer with 10 years service at San Quention had
similar strong feelings about Mr. Thompson. He states that Mr. Thompson was “the
best worker I had,” "has an exceptional relationship with guards and inmates,” and "is
respectful of authority." The officer recounts 2 1988 incident where Mr. Thompson
wamed him of a possible personal safety situation, and concludes that Mr. Thompson
"js the only inmate behind bars I would trust with my life." (Exhibit 27).
IV
THE CAPITAL OFFENSE
A. Unresolved Questions
Because this is not a judicial proceeding, the Governor is free to
consider, as other governors have in the past, information which may have materially
affected the jury's sentencing decision but which was never presented to the jury, either
because it was not available or because the defendant's counsel was ineffective. Both
of those situations exist in this case. Mr. Thompson's trial lawyer failed to investigate
or present critical defense evidence that would have rebutted the medical/ forensic
evidence and jailhouse informant testimony that formed the core of the prosecution's
!
case against Mr: Thompson. Because of that evidence, the Honorable Richard A.
Gadbois, Jr., appointed to the United States District Court by President Reagan, found
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that Mr. Thompson had been deprived of his constitutional right to the effective
assistance of counsel, and vacated his rape conviction, rape special circumstance
finding and death sentence. Judge Gadbois, a well-respected former California state
court trial judge who had been recognized as the criminal courts trial judge of the year
by the Los Angeles County Bar Association, concluded, "The prosecution did not
present strong evidence that Fleischli was raped or that Thompson was the perpetrator
of the rape. What evidence was presented was problematic and vulnerable to attack.”
Perhaps even more important to these proceedings was Judge Gadbois'
concluding thought at the end of his 100-page written opinion:
"Before concluding, the Court wishes to express its view
that the ends of justice would not be served by retrying
Petitioner on the rape charges. While the Court has found
that Petitioner's remaining claims do not rise to the level of
constitutional error, many of them nevertheless leave the
Court with a unsettling feeling. The disparate convictions
and sentences of Thompson and Leitch, for example, while
legally permissible, are troubling to this Court, given the
intensity of public perceptions in these cases and the
deficiency of certainty regarding relative culpabilties.
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See ee eee
These concems should be carefully considered by the State
‘when deciding if society would best be served by retrying
these charges, now almost fourteen years old, and perhaps
sparking in another decade or more of judicial review."
Opinion at 101.
While the Ninth Circuit Court of Appeals reversed Judge Gadbois, none
of the three judges on the panel was ever a California state judge, and their decision
rested on the erroneous view that a jury could have remumed a verdict against
Mr. Thompson notwithstanding the ineffective assistance rendered by his attomey.
The Court did not directly address Judge Gadbois' findings that the prosecution's
evidence could have been and should have been discredited at trial.
In an unprecedented brief filed with the United States Supreme Court,
seven former prosecutors, including the draftsman of the California death penalty
statute, disagreed and noted that, although they "generally believe in the imposition of
the death penalty in an appropriate case, where the death sentence is the product of fair
and reliable proceedings ... there are many disturbing aspects to the convictions and
death sentence rendered and upheld in Thompson's case that leave us with little
sont that the death penalty is appropriate im this case." Amicus Brief at 2.
a These prosecutors who included Richard Gilbert, a retired judge of
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SOP an 8 $e RS REG pCa Ni anche FR i
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Placer County Superior Court and former district attomey of Yolo County, Donald
Heller, Peter Hughes, the chairman of the Board of Trustees of the University of San
Diego and a former assistant United States attorney, Curt Livesay, the former chief
deputy district attorney for Los Angeles County who reviewed more than 1,000 capital
cases to determine whether the death penalty should be sought, James Lorenz, a former
deputy district attorney for San Diego County and the former United States attomey
for the Southern District of California, Wayne Ordos, the former executive director of
the California Fair Political Practices Commission, and Steve White, the former
executive director of the California District Attorneys Association, former Chief ,
Assistant Attorney General, and former district attorney of Sacramento County. These
ex-prosecutors severely criticized the prosecutors’s tactics, including the indiscriminate
use of informants and the pursuit of inconsistent theories at the two trials. They stated
that they had "serious questions regarding Thompson's culpability,” that there was "no
clearcut evidence reliably establishing that defendant Thompson was the murderer,”
and that they believe that there are "substantial, unresolved doubts about Thompson's
role and relative culpability." They emphasized that there was "no definitive evidence
reliably establishing that a rape occurred.” Both Mr. Livesay and Mr. White, who
during his six years as district attorney: in Sacramento County made the decision
whether to seek the death penalty in each capital eligible case, stated that they would
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not have authorized seeking the death penalty in this case. The former prosecutors
caclulad that they agreed with Judge Gadbois that the case left them with "an
unsettling feeling."
Even the trial prosecutor in these two cases acknowledged, after the two
trials had been completed, that he did not know what role Mr. Thompson had played in
the crime. He aid to Mr. Leitch's jury that "there is nothing that excludes either
Thompson or Leitch” and "we can't tell you exactly what it was that Mr. Leitch did
when he got back to the apartment and we can't tell you exactly what Mr. Thompson
did either." Leitch RT 2501.
To this extraordinarily high degree of uncertainty on which to base the
execution of a fellow human being, one must now add the recently discovered
evidence that when David Leitch returned to the apartment on the night Fleischli was
killed, he saw Thompson and Fleischli engaged in consensual intercourse. This critical
evidence undermines the prosecution's theory that Thompson raped Fleischli and then
killed her to conceal the rape, and corroborates Thompson's version of events.
Although the prosecution was aware that Leitch wimessed consensual
intercourse, not _— between Thompson and. Fleischli, this information was never
heard by Thompson's jury because it was suppressed by the State. Leitch's trial
lawyer, nog a municipal court judge, confirms that Leitch maintained at the time of trial
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that he saw Thompson and Fleischli engaged in consensual intercourse, and one of the
Orange County Sheriff's investigating officers acknowledges that he was aware of this
information prior to trial.
This new evidence, added to the evidence presented in the federal
proceedings, which effectively undermined major aspects of the prosecutions's case,
establishes that Thompson did not rape Ms. Fleischli, that he is imocent of capital
murder, which is based solely on the rape, and, because it removes the only motive
offered by the prosecution for the murder of Fleischli by Thompson (i.e., to prevent her
from reporting the rape), casts grave doubt on Thompson's guilt for the murder as weil.
B. The Evidence Regarding The Culipability Of Mr. Thompson
and Mr. Leitch
Thomas Thompson was 26 years old and had no criminal record when he
was arrested for the murder of Ginger Fleischli. David Leitch, his roommate and co-
defendant, not only had a violent criminal history, but had in the sai had threatened to
kill Ms. Fleischli, his ex-girlfriend.
Thomas Thompson was tried first. The prosecutor’s stated theory was
that Mr. Thompson had raped Ms. Fleischli and then killed her to cover up the rape,
and that Leitch’s involvement was limited to helping dispose of the body. The primary
. .
witesses against the Mr. Thompson were Leitch’s ex-wife (whom the state court later
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referred for prosecution for perjury), Leitch’s best friend, and two jailhouse informants
(both of whom, it was later proven, lied at trial about their history as informants).
At Mr. Thompson's trial, the prosecutor vigorously tried to exclude, and
then disparaged the importance of, the testimony of witmesses presented by the
defense, that Leitch had the motive and violent disposition for, and was the probable
perpetrator of, the murder. However, as these defense wimesses concluded their
testimony in the defense's case, the prosecutor served them with subpoenas to appear
as prosecution wimesses at Leitch’s trial, at which the prosecutor urged the importance
of their testimony to show that Leitch had the motive for and was guilty of murder.
4
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:
i” The two jailhouse informants testified at trial that the Mr. Thompson had
admitted to raping and killing Ms. Fleischli. However, at the preliminary
hearing, at a time when Mr. Thompson and Leitch were still joined as
defendants, the prosecutor had presented the testimony of three other jailhouse
informants who testified that Mr. Thompson had told them that Leitch, who had
wanted Ms. Fleischli dead, had hired Mr. Thompson to help him and had aided
and abetted the commission of the crime, and that #ré Mr. Thompson had had
consensual sex with Ms. Fleischli beforehand. At the conclusion of the
preliminary hearing, the municipal court judge found that there was insufficient
evidence to bind Mr. Thompson over on the rape charge and the rape-murder
special circumstance. After the preliminary hearing and after it was determined
that the co-defendants would be tried separately, the prosecutor abandoned the
first three informants, and “found” two new ones (one of whom had been
Leitch’s cellmate) who provided the nexus between the Mr. Thompson and the
alleged rape that was essential to the prosecution’s new theory against Mr.
Thompson.
ASP navigates
At his subsequent deposition, the prosecutor acknowledged that it was always _
his view that Leitch had the motive for the murder. Jacobs Deposition, pp. 194,
(continued...)
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SAAT OG AR ai Jb GH Red ei din AN
=
In his closing argument at Leitch’s trial, the prosecutor repudiated the
rape-murder theory that he had presented at Mr. Thompson's trial and argued that the
theory was ludicrous:
“So we have to ask ourselves, why would Mr. Thompson murder
Ms. Fleischli alone in an apartment where-he lived with no
transportation, no means to move the body and wait for
Mr. Leitch to come home to be an A-1 witness to the murder of
his ex-girlfriend? Is that reasonable or logical? Do you think
that’s what happened?”
eitch RT 2564. The prosecutor contradicted his previous theory of the case that Mr.
Thompson had acted alone by informing the jury that, “[t]here’s nothing that excludes
either Thompson or Leitch” and “we can’t tell you exactly what it was that Mr. Leitch
did when he got back to the apartment and we can’t tell you exactly what Mr.
Thompson did either.” Leitch RT 2510.
In a stark about-face from Mr. Thompson’s trial, the prosecutor urged
upon the jury the wealth of evidence that Leitch was responsible for the murder:
“And when Miss Fleischli came out, we know that she was
wrapped up in Mr. Leitch’s blanket, his sleeping bag, and tied up
with his rope, and she’s been stabbed five times in the ear with his
knife, the fishing knife returned to his dresser drawer a few days
before, which he-later lied:to the police about owning, and. which
he, himself, probably threw into the ocean that night. [{] So
29'(.. continued)
164-65, 175.
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Ms. Fleischli’s body was carried to his car... and that footprint
that you saw by Miss.Fleischli’s feet, that was made by Mr.
Leitch.”
Leitch RT 2510-2511.
The prosecutor subsequently informed Leitch’s probation officer that
Leitch was the “motivating force” behind the murder who had bound and gagged and
may have'stabbed Ms. Fleischli. The trial judge stated that “[o]nly Leitch hada
motive” and that he “manipulated Thompson to help him do the killing.” /d. Thus,
Mr. Thompson was convicted and sentenced to death based on a solo rape-murder
theory that both the prosecutor and the tial judge subsequently disavowed.
At Mr. Thompson's tial, the evidence offered by the prosecution to
prove the rape necessary to render him eligible for the death penalty consisted almost
entirely of medical and forensic evidence regarding the condition of the decedent's
body and of the testimony of two jailhouse informants that Mr. Thompson had
confessed to —
The medical examiner, Dr. Richards, testified that there were bruises on
Ms. Fleischli’s hands, wrists, left elbow, and ankles (RT 1618-22, 1625, 1765-66)
which were caused by “the application of force” and.“heavy handling” immediately
prior to her death, and which suggested that she had been restrained. and raped.
RT 1618-22, 1625, 1635-36, 1765-66. Although Dr. Richards acknowledged that there
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het Lau
va.
3
2
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was “no anatomic evidence of rape” in the sense of vaginal injury (RT 1624, 1637) he
testified that there is no vaginal injury in most rape cases (RT 1629-34, 1766) and that
bruises to other parts of the body are a more certain indicator of rape. RT 1635-36.
Sheriff's deputy Coder bolstered this theory by testifying that an injury to
Ms. Fleischli’s right wrist had been caused by a handcuff (RT 1748-49) which
permitted the jury to infer that Mr. Thompson, not his co-defendant, was guilty
because he had at one time possessed handcuffs. RT 1694-97.
The prosecutor relied heavily on this evidence and argued to the jury that
the bruises proved that Ms. Fleischli had been bound and ~ before she was
stabbed. RT 2559-60, 2633-36. He pointed to Dr. Richards’ testimony to urge that
“Oruises to other parts of the body, to the wrist, to the ankles, such as we have here are
even more important (than the absence of vaginal bruising] . . . in determining what
happened to the victim.” RT 2633. The prosecutor also argued that it was clear from
Mr. Thompson's possession of handcuffs and from Deputy Coder’s testimony that the
Tight wrist had been injured by handcuffs — which the prosecutor pointed out was
“uncontradicted” by Mr. Thompson's counsel — that Mr. Thompson, not his co-
defendant, was the perpetrator. RT 2634-36, 2467. Furthermore, the jury was
instructed by the trial court to consider the “presence of bruising and contusions to the
'
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wrist, hands, and ankles” and a “cut on her wrist” as evidence of rape. CT 1600;
RT 2671-74.
As the district court found, the evidence that a rape had occurred was not
substantial, may not have been credible, and was certainly open to attack. App., infra,
39a, 81a, 101a. Mr. Thompson demonstrated at the evidemtiary hearing that
Dr. Richards’ — that there were numerous injuries to the hands, arms, and legs,
which occurred close to or at the time of death, was not tue. Dr. Richard’s own
autopsy documents showed that there were no injuries to the lower extremities that had
occurred near the time of death; there was only a single injury to each of the upper
extremities that could have occurred either at or near the time of death, and as to those
it could not be determined whether they had occurred before or after death; and there
was, in the words of the coroner’s own autopsy report, “remarkably little in the way of
trauma” to the body. Jd. at 75a-77a.
In addition, the injury to the right wrist, which the prosecution presented
as an uncontroverted handcuff injury,” was open to serious challenge. According to
the expert testimony of the pathologist presented at the evidentiary hearing, the injury
was inconsistent with injuries associated with handcuffs. Jd. at 77a. Such expert
i Even the State’s Strickland expert admitted that the handcuff evidence was used
‘in a “very, very, vivid way” and that defense counsel should have done
something to impeach it EH 321, 331.
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testimony, if presented at trial, would have rebutted the otherwise uncontroverted lay
opinion of a sheriff's deputy that the injury had been caused by handcuffs.
Finally, Ms. Fleischli was found wearing jeans that were fully zipped and
belted, but unbuttoned. RT 1504. According to the expert testimony presented at the
evidentiary hearing, if the victim had engaged in intercourse and she or another had_
then put on her jeans before she douched or washed, there would have been semen
drainage in the crotch of her jeans. That none was found by the state criminalist
suggested that she had douched or washed, which was consistent with the consensual
sexual intercourse testified to by Mr. Thompson and inconsistent with the rape charged
by the prosecution. App., infra, 77a.
The primary evidence that linked Mr. Thompson to the alleged rape
carne from two jailhouse informants. Edward Fink testified that while in jail with
Mr. Thompson, Mr. Thompson told him that he “wanted to screw” Fleischli, but she
refused, so he "took it,” and then killed her because he did not want any witnesses.
Id. at 81a. Similarly, John Del Frate testified that while in jail with Mr. Thompson, he
told Del Frate that he had raped a woman named Ginger and killed her after she said
she was going to report the rape. /d. at 92a-93a.
The district court found that trial counsel should have obtained and .
presented available evidence of numerous past instances in which Fink had received
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benefits for informing, and of his receipt of benefits from the district attomey in retum
for his testimony against Mr. Thompson. Id. at 85a-87a. This evidence established
that, contrary to Fink’s trial testimony, for ten years before testifying against
Mr. Thompson, Fink had engaged in a pattem of providing information to law
enforcement in return for favors.
. There was evidence — not presented to the jury — to demonstrate that
Fink’s modus operandi was to provide his assistance first and to collect his favors
later, allowing him to testify in cases in which he had yet to receive benefits for his
assistance. There was also evidence — not presented to the jury — that Fink followed
exactly this pattern in Mr. Thompson's case. Fink testified that he was in jail ona
parole violation when he first informed the State’s investigators about Mr. Thompson’s
alleged confession, and that he did so only because the facts of the case upset him. He
claimed to have asked for nothing in return, and that he had shortly thereafter been
teleased from custody, not because of his assistance in Mr. Thompson's case, but
because “the Parole Board found my [parole] violation unfounded.” RT 1840-1841.
The district court found that Mr. Thompson's trial counsel could have rebutted Fink’s
testimony by demonstrating that Fink used his initial informing against Mr. Thompson
to secure his release from custody and that, in fact, within a two-month span, Fink, in
attempts to obtain his release from jail and assistance at his parole hearings, had
o70897 -33-
informed on two other inmates in addition to Mr. Thompson, stating that all three had
confessed to murder. Id. at 85a-88a.
At the time of Mr. Thompson’s trial, Fink was again in custody, serving
time on his parole violation. He testified that all he had asked for in return for his
testimony was to serve his remaining twenty-nine days at a state prison. Id, at 82a.
However, consistent with his modus operandi, and contrary to his testimony, Fink
asked for and received benefits from Mr. Thompson's prosecutor after Mr. Thompson's
trial. On August 30, 1984, at Fink’s request, the prosecutor wrote to the Board of
Prison Terms that “Fink’s testimony [against Mr. Thompson] was a crucial part of the
People’s case” and requested that Fink be released from custody prior to Christmas.
EH Exh. 4 at 16. The prosecutor also went to the trouble of testifying on Fink’s behalf
at Fink’s 1984 parole revocation hearing. EH Exh. 4 at 15, 17-18.
Because trial counsel did not present evidence of the numerous benefits
Fink had received from law enforcement in return for his cooperation in this and other
cases, the prosecutor was able to argue forcefully and repeatedly that, even though
Fink was “no Boy Scout,” he had asked for and would receive nothing in return for his
testimony against Mr. Thompson (RT 2565) and therefore had no reason to lie.
RT 2637.
i
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In addition to the evidence about Fink, there was powerful impeachment
evidence regarding informant Del Frate that was available to but not presented by trial
counsel. Del Frate, contrary to his testimony, had a long history as a police informant,
and had received benefits for informing. App., infra, 96a. In addition, trial counsel
could have presented evidence that Del Frate had a reputation for dishonesty, as :
considered an unreliable informant, and had lied to Mr. Thompson’s jury about the
extent of his criminal record. Jd. at 96a-97a. Finally, trial counsel could have shown
that it was not Mr. Thompson who was the source of Del Frate’s “knowledge” of the
facts about the case (as Del Frate claimed), but rather newspaper articles about the case
that were available to Del Frate. *
Because of trial counsel’s failure to present readily available evidence to
the contrary, the prosecutor was able to get away with falsely telling the jury that Del
Frate “hasn’t been an informant before.” RT 2565.
= ‘Del Frate had told the prosecution that Mr. Thompson told Del Frate that he had
stabbed the victim in the neck, chest and “upper torso,” in addition to the head
In fact, Ms. Fleischli had only been stabbed in the head, but newspaper
accounts, available to Del Frate, had erroneously reported that she had beex
stabbed in the neck, the chest, and “the upper torso.” CT 468-470. Similarly,
Del Frate testified that Mr. Thompson told him that he and Leitch put
Ms. Fleischli’s body “in a shallow grave,” a unique turn of phrase thatwas
initially found in police reports and reported in the newspaper. CT 468-475.
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The district court had “extreme doubts as to the veracity of Fink’s
testimony” and found that there was “surely a reasonable probability that had the jury
learned the full extent of Fink’s informant background, it would have disregarded his
testimony. App., infra, 91a. The district court found that trial counsel's failure to
impeach Del Frate with his informant history added to the cumulative impact of trial
counsel’s ineffectiveness in defending against the rape charge. Id. at 98a.
In addition, at Mr. Thompson's trial, the prosecutor argued that he alone
had first raped and then killed Ms. Fleischli to cover up the rape. At Leitch's
subsequent trial, the same prosecutor, before the same judge, argued that Leitch had
the sole motive and the opportunity to commit the murder, and that he was equally or
more culpable than Mr. Thompson. At Leitch's trial, the prosecutor presented
Mr. Thompson as significantly less guilty and less culpable than he had at
Mr. Thompson's own trial. Refuting any of the theory he had presented at
Mr. Thompson's trial, the prosecutor subsequently informed Leitch's probation officer
that Leitch was the "motivating force” behind the murder, that Leitch had the motive,
that he had bound and gagged Ms. Fleischli and that he may have stabbed her with his
knife. . :
Indeed, at Leitch's trial, the prosecutor sarcastically repudiated his
argument against Mr. Thompson at his trial:
7.
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"So we have to ask ourselves, why would Mr. Thompson murder
Ms. Fleischli alone in an apartment where he lived with no
transportation, no means to move the body and wait for Mr. Leitch to
come home to be an aide - one wimess to the murder of his ex-girlfriend?
Is that reasonable or logical? Do you think that is what happened?"
The prosecutor an told Leitch's jury:
"Who has the motive? Mr. Leitch ... . and his was the only motive or
reason for her demise .... It's really the only motive we have in this
case, and people have killed for less.”
Leitch RT 2563, 2570, 2513.
The prosecutor continued,
“All the evidence we have incriminates Mr. Leitch, at best equally, and
more so than Mr. Thompson.”
Leitch RT 2505.
“You think Mr. Thompson did ail this by himself and waiting [sic] for
-this good guy [Leitch] to come home so he could see him standing over
his dead ex-girlfriend ...? No, it didn't happen that way.”
Leitch RT 2564.
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The only reason Mr. Thompson faces execution is because he is
convicted, not just of murder, but also of the special circumstance that the murder
occurred during his commission of rape. If the prosecution had proceeded at his trial
on the same theory that he sponsored at the preliminary hearing at Leitch's trial - that
Leitch wanted Ms. Fleischli dead and Mr. Thompson assisted him in killing her -
Mr. Thompson would not have been found guilty of capital rape-murder. The
prosecution's theory at Leitch’s trial, even though it did not totally exonerate
Mr. Thompson, made him innocent of capital murder and would have resulted in his
conviction of, at most, non-capital first degree murder or second degree murder.
DIS. Ne
The prosecutor's position, following the convictions of Mr. Thompson
and David Leitch, is that Leitch was the "motivating force" behind the murder. The
trial judge who presided over both trials believes that "only Leitch had the motive” and
"he manipulated Thompson to help him do the killing.” Yet, Leitch, sentenced to 15
years to life, is now eligible for parole and waits only for Board of Prison Terms action
to be released from prison, while Tom Thompson will be executed on August 5. Such
a fundamental disparity in sentence for codefendants found guilty for same crime is
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oats
ihat Aas taba eta ie:
grossly unfair. The Governor can at least allow Mr. Thompson to live on in prison
after Leitch walks free from custody.
In addition to the intra-case disparity, there is a great inter-case disparity
in sentence. Most of the people on Death Row in Mr. Thompson's position had a
history of crime. or violent activity prior to the capital offense. Mr. Thompson, on the
other hand, had never even been arrested before.
Inter-case sentencing disparity, the disparity imposed on a condemned
inmate and that imposed on others who had committed comparable crimes*’. The
California Supreme Court has decided seven capital cases in which the defendant had
been convicted of first degree murder with a rape special circumstance. Thome ;
Thompson is the only one of the seven to have no prior arrest or prior violent activity.
See People v. Brown, 40 Cal. 3d 512, 220 Cal. Rptr. 637, 709 P.2d 440; People v.
Ghent, 43 Cal. 3d 739, 239 Cal. Rpt. 82, 739 P.2d 1250 (1987); People v. Payton, 3
Cal. 4th 1050, 13 Cal. Rptr. 2d 526, 839 P.2d 1035 (1992); People v. Rowland, 4 Cal.
4th 238, 14 Cal. Rptr. 377, 841 P.2d 897 (1992); People v. Clark, 5 Cal. 4th 950, 22
Cal. Rptr. 689, 857 P.2d 1099 (1993); People v. Berryman, 6 Cal. 4th 1048, 25 Cal.
Rptr. 867, 864 P.2d 40 (1993).
a Commutation Decree, Edward Wesley Brown, May 14, 1947.
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fe at ae NR a et cA HN eh: RUE
Defense investigators have compiled a list of the eighty-seven death row
inmates in California who were found guilty of a single special circumstance (other
than multiple murder or a prior murder) and who have filed an appellant's opening
brief as part of their automatic appeal to the California Supreme Court. Defense
" investigators reviewed the appellant's opening briefs, the respondent's briefs (if filed),
and the California Supreme Court opinion (if issued), and in some cases interviewed
current and/or past counsel for these inmates. From the pool of eighty-seven cases,
investigators found only two cases (in addition to that of Mr. Thompson) where the
defendant had no prior criminal record.” Thus, Mr. Thompson is among the three
percent of this pool of death row inmates with no prior criminal record!
ww "No prior criminal record" means no arrests, juvenile adjudicated crimes, adult
convictions, or prior unadjudicated crimes testified to during the capital trial.
27 ‘The other two with no prior record are an inmate found guilty of first degree
murder with special circumstance of murdering a witness to a crime, first degree
residential robbery, forcible rape, and sodomy by use of force, and an inmate found
guilty of one court of murder with a robbery special circumstance, one count of
attempted murder, and two counts of robbery.
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VI
CONCLUSION
The power of clemency has been given to the Governor by the people to
assure that justice is done. The factors in favor of ae that power in this case are
compelling. It is respectfully requested that clemency be granted and that Mr.
Thompson's sentence be commuted to life in prison without the possibility of parole.
Dated: July 10, 1997
QUIN DENVIR
ANDREW S. LOVE
LAW OFFICES OF COFFIN & LOVE
GREGORY A. LONG
SHEPPARD, MULLIN, RICHTER & HAMPTON
Lal &
“ GREGORY A. LONG
Attorneys for THOMAS A. THOMPSON
070897 -4l-
DECLARATION OF SCOTT POWELL
I. Scott Powell, do hereby declare:
l. [ have been employed as a Correctional Officer for the California Department of
Corrections for 14 years. [ am also an ex-Marine.
2. I began working at San Quentin Prison in 1983. In 1997, I transferred to the California
State, Prison in Lancaster.
3; In 1986, I met Tom Thompson when I was assigned to Carson Section as a Search and
Escort Officer. | later became a tier officer for the 5th tier of Carson Section where Thompson was housed.
4. Tom Thompson prevented the murder of a correctional officer the year Rose Bird and
two other justices were removed from the California Supreme Court. During a telephone call between an
inmate and civilian (which was intercepted by an officer) the inmate discussed his plan to kill a guard so that
he could delay his execution by picking up another case. When Tom discovered this pian he intervened and
stopped the hit.
3. Times were very tense on Death Row when the complexion of the court changed and
Tom Thompson was instrumental in keeping a lid on the tier.
6. Tom always had a calming effect on the tier. He kept a cool head, never lost his temper
and was always respectful toward staff.
Ts Inmates and guards respect Tom Thompson. He is in a class by himself. He has no prior
criminal history. [f anyone could be salvaged from Death Row it would be Tom Thompson.
8. Tom is inteiligent and humorous. He has an excellent rapport with inmates and staff.
9. Tom was also an excellent, reliable worker. He got up everyday , went to work and never
complained. At one time he was assigned to do janitorial work in Donner Section, a section used as a dumping
ground for the worst of the worst. It was run down with no ventilation, poor lighting and _ infiltrated with rats,
wild cats and birds.
10... Tom is well informed and pays attention to what is going on in the world. | would often
stand in front of his ceil and talk to him. He would make me a cup of International coffee and without his
asking, I would give him a cold coke to drink. He always gave me back the metal can.
11. + Tom was im the Armed Service and involved in Veteran activities at San Quentin. He has
a deep respect for the military.
EXHIBIT 26
{
A
"12. [testified on behalf of Skip Farmer during the retrial of his Penalty Phase in Riverside
County. The jury in that case sentenced Skip to Life Without the Possibility of Parole. Having known a couple
hundred death row inmates, Tom and Skip are the only two I would ever testify for.
I declare under penalty of perjury that the foregoing is tue and correct.
Executed this L day of fal 1997, at San Bernardino County.
Le
SCOTT POWELL
DECLARATION OF SCOTT HIXSON
I, Scort Hixson. do hereby declare:
Ls [ have been employed as a Correctional Officer for the California Department of Corrections
since 1985. | am also a member of the Armed Forces and will retire from the Army in two years.
2 I began working as a guard at San Quentin Prison in 1985 and remained at that institution until
1995 when I transferred to the California Rehabilitation Center at Norco.
3: I met Torn Thompson in 1985 when he was part of a six man work crew [ was assigned to
supervise at San Quentin. The crew worked in Donner Section which was the lock up Unit that took the
overtlow of inmates from the Adjustment Center. The inmates from the A.C. were very difficult and caused
problems for the staff. Without being a snitch, Tom would let me know when trouble was brewing. I would
then let the rest of the staff know and the rouble would be quashed.
4, Tom worked as a janitor, clerk and had various other assignments. As a janitor he cleaned out
showers that were used by 150 -300 people a day. He also cleaned out holding cages and helped prepare food
carts which he cleaned up after inmates were fed. He was the best worker I had. He had initiative and was a
perfectionist. He left no job undone. He picked up the slack for other inmates. I could rely on him to supervise
the crew for me. Tom and I were both disappointed when work privileges for inmates were revoked.
5. Tom has exceptional relationships with guards and inmates. He is respectful of authority and has
never been given a write up for disrespecting a guard. He is on a first name basis with everyone on the row and
is the only inmate | allowed to call me by my first name.
6. Tom Thompson is an extraordinary person with a special personality, . He has a calm, collect
manner, and deals with others rationally. He is a complex and interesting individual. When you look at Tom
and talk to him you like him. You like him for who he is not out of sympathy for where he is. He is very artistic
and the best painter on the row.
7 In the summer of 1988, Tom looked out for my safety. He wamed me about the possibility of
trouble in East Block. [ gave this information to my supervisor and was kept out of that area of the prison.
8. [had daily contact with Tom for 2-3 years. During that time I developed a strong bond with him.
He is the only inmate behind bars I would trust with my life.
I declare under penalty of perjury that the foregoing is true and correct.
Executed this @ day of Auly ;, 1997, at Crestline, win
EXHIBIT 27
a
STATEMENT OF THOMPSON TRIAL JURORS
We, the undersigned, hereby state:
L. We were jurors in the 1982-1983 Thomas M. Thompson trial, both guilt and penalty
phases. Based on the testimony and evidence presented at the trial, we found
Thompson guilty of murder, rape, and found the special circumstance of murder
during commission of the rage to be true. After hearing evidence at the penalty
phase, we voted in favor of death.
a 2 During Thompson's trial, the prosecutor argued thar Thompson had acted alone in
raping and killing Ginger Fleischli, and thar he had killed her to keep her from
telling anyone that he had raped her. In determining that Thompson should be
sentenced to death we believed we understood Thompson's role in the killing: that he
acted alone and that his roommate, David Leitch, may have assisted in disposing of
the body.
3 We have been informed thar Leitch was tried after Thompson’s trial by the same
prosecutor, and that he was convicted of second degree murder, receiving a 15-o-life
sentence. We have been told that the prosecutor told the Leitch jury that Leitch had
the motive to kill Ms. Fleischli and participated in her murder.
4, The evidence that Thompson raged Ms. Fleischli played a significant role in our
decision that Thompson should gee the death penalty. Our belief that Thompson
raped Ms. Fleischli was based in large part on the coroner's testimony about bruises,
che testimony of the deputy sheriff regarding a wrist injury caused by handcuffs, and
the testimony of the two informants, Fink and Del Frate. We have been informed
that some or all of this evidence wus challenged at a hearing in federal court. We are
aware that the federal judge found that Thompson’s lawyer, Ron Brower, should have
challenged this evidence at Thompson’s trial, and tha the federal appellate court found
thac Brower’s failure to do so would not have made a difference in the outcome of the
case.
S Given thar, at best, the prosecuror is uncertain as to what Thompson did and whar
Leitch did on the night Ms. Fleischli was killed, and that we now have some doubt as
to whether Thompson in fact raped Ms. Fleischli, we now believe ic is wrong to
execute someone when it is not known what role they actually played in che killing.
We therefore believe thac Thompson's death sentence should be reduced to life
without possibility of parole.
ae || a omtinl
Lugen a4. Rikbice Pal 2
TED! Bly [47 :
‘Pare: Gl BYRON. H. ROBBAIS, IC.
EXHIBIT 28
| sey
