Judge disputes state’s execution of convicted rapist-murderer

The 9th U.S. Circuit Court of Appeals Judge Stephen Reinhardt is shown in this 1997 photo. One of the nation's most liberal and outspoken federal judges, Reinhardt unapologeticaly says that judges should not change their view of the law "in order to please the Supreme Court". less The 9th U.S. Circuit Court of Appeals Judge Stephen Reinhardt is shown in this 1997 photo. One of the nation's most liberal and outspoken federal judges, Reinhardt unapologeticaly says that judges should not ... more Photo: Stephanie Turner, ASSOCIATED PRESS Photo: Stephanie Turner, ASSOCIATED PRESS Image 1 of / 1 Caption Close Judge disputes state’s execution of convicted rapist-murderer 1 / 1 Back to Gallery

A federal appeals court judge says a convicted rapist-murderer who was executed at San Quentin in 1998 was “likely innocent” of a capital crime and was put to death only because of a U.S. Supreme Court ruling that barred a lower court from considering the merits of his case.

The comments by Judge Stephen Reinhardt in a newly published Michigan Law Review article are the latest salvo in a controversy about Thomas Thompson, one of 13 Californians executed since 1992 under the current death penalty law and the only one whose guilt has been seriously disputed.

Thompson was convicted of raping and fatally stabbing 20-year-old Ginger Fleischli in 1981 in the apartment he shared with Fleischli’s ex-boyfriend, David Leitch, in Laguna Beach (Orange County).

Leitch was tried separately and convicted of second-degree murder. The same prosecutor gave conflicting versions of events at the two trials, telling Thompson’s jury that he had been the only one in the apartment with Fleischli, then telling Leitch’s jury that Leitch had been there and had ordered Thompson to kill her.

At a 1995 parole hearing, Leitch said he had seen Thompson and Fleischli having apparently consensual sex the night of her death, testimony that Thompson’s jury never heard. If jurors had found that the sex was consensual, they could not have convicted Thompson of murder in the course of a rape — the only “special circumstance,” or capital charge, against him — and the jury might have cleared him altogether, because rape was the prosecution’s claimed motive for murder. Jurors also weren’t told that two inmates who testified that Thompson admitted the murder were informants with questionable records.

The Ninth U.S. Circuit Court of Appeals in San Francisco overturned Thompson’s death sentence in 1997, citing the conflicting prosecutions and jailhouse informants. But the Supreme Court overturned that ruling in a 5-4 decision in April 1998 because the appeals court had missed its own deadline for reconsidering an earlier ruling, a violation that the justices said frustrated the public-safety interests of the people of California. Thompson was executed three months later.

Reinhardt, a member of the appeals court panel that voted to spare Thompson’s life, cited the case in his law review article as an example of the Supreme Court’s virtual elimination of federal court review of state criminal cases, “for even the most glaring of constitutional wrongs.”

The high court authorized “the execution of a person who was likely innocent of the special circumstance that justified the death penalty, based on a newly adopted procedural rule that precluded the circuit court from reaching the merits” of the case, Reinhardt wrote.

Orange County prosecutors have insisted Thompson was properly convicted. Andrew Love, one of Thompson’s lawyers, said Monday the case illustrates why “the death penalty is such an inherently flawed and inhumane process.”

Bob Egelko is a San Francisco Chronicle staff writer. E-mail: begelko@sfchronicle.com Twitter: @egelko