I knew if I wanted to see Tom one last time I had to leave for the prison soon. It was already late in the afternoon and at 6:00 pm, he would be taken from the visiting area to the death watch cell for his last meal. There he would remain until 25 minutes before midnight when he would be led to the execution chamber next door. There wasn’t anything left for me to do anyway, so I left my San Francisco office and drove over the Golden Gate Bridge to San Quentin State Prison.
The parking lot to the East Gate of the prison is just a few yards from the San Francisco Bay. Even after countless visits the contrast between the sweeping vista of the coastline and the grim reality inside the prison’s peach colored concrete walls is striking. I passed through security and walked slowly down the long path leading to the Main Visiting Room. I was let in through the two sets of heavy doors, and saw Tom, surrounded by family and close friends, presiding over a gathering that could only be described as surreal. Tom had been on death row for fourteen years, and the prison guards who knew him well seemed as traumatized as everyone else. They were overly solicitous, awkward, almost apologetic. Instead of the usual vending machine fare there was a platter of cold cuts for sandwiches and sodas on a long table. Although in a matter of hours he was going to be strapped to a gurney and lethally injected with poison, it was Tom who was trying to keep things light, with the corny jokes and over-the-top impersonations – Steve Martin as the “Wild and Crazy Guy” and Mike Myers as Austin Powers – with which I had become all too familiar.
Behind his silliness, Tom was thoroughly depleted from being the center of a spectacle that surrounded him as the fifth man about to be executed in California since the death penalty was re-instituted in 1977. A physically healthy 43 year old was going through the process of dying, and it was disorienting and unbearably stressful. He had been enduring emotionally-charged visits from his friends and loved ones, for whom he felt the need to constantly perform. He met often with me and other members of the legal team to approve a list of execution witnesses (he was entitled to five) and to be kept abreast of last minute developments – of which there were few. He had been under 24 hour surveillance from guards for the past five days, making sleep impossible. In accordance with prison rules, he had been stripped of his “non-legal property.” He had no reading or writing material. He was denied his art supplies, which he had used for surprisingly impressive paintings over the years, including a portrait of Billy Idol he had given me a few months earlier.
We had been preparing for this moment for far too long, having gone through a similar process one year earlier when, despite a stay of execution, prison personnel proceeded methodically with its execution protocol until, with six hours to spare, they were finally assured that the Supreme Court would not disturb the stay. There was not much left to say. Tom, although hampered by waist chains, enveloped me as best he could in a big bear hug, and thanked me for all I had done. He told me that I should feel proud about putting up such a good and righteous fight. I replied that it had been an honor to have worked with him. I exchanged tearful goodbyes with his sister and mother. I walked out of the prison and returned to my office where I continued to file court papers with little chance of success and railed to reporters about injustice. All to no avail. Six minutes after midnight on July 14, 1998, Tom Thompson was dead.
Tom Thompson had no criminal record or history of violence when he was tried for the murder of Ginger Fleischli in 1984. He was found guilty of murder and sentenced to death based largely on the false testimony of jailhouse snitches and the failure of his trial lawyer to challenge the bogus evidence of rape invented by the prosecutor. (The rape special-circumstance provided the basis for the death penalty.)
An explosive scandal involving the Orange County D.A.’s office has only recently shed light on the extent of the unethical behavior routinely engaged in by its prosecutors to secure death sentences. And Michael Jacobs — the prosecutor in Tom’s case — has been revealed to be one of the more notorious. Jacobs was fired in 2001 for insubordination and dishonesty. The litany of his misconduct over several cases includes presenting false testimony, using unreliable informants, and hiding exculpatory evidence — all of which he did in Tom’s case. And there was more. Jacobs used contradictory evidence and arguments in two separate trials to convict first Tom and then Tom’s roommate, David Leitch — the victim’s former boyfriend and a man with a violent past — on inconsistent theories. The reliability of many other Orange County cases has been called into question since the D.A. scandal broke — and one murder conviction based on the false testimony of one of the very same snitches who testified against Tom has been reversed. Of course, this all comes too late for Tom.
There are approximately 750 men and women on death row in California. Tom Thompson is one of 13 who have been executed since the death penalty was reinstated almost 40 years ago. While others sentenced to death around the same time languished on death row (several of whom continue to languish), his case jumped to the head of the class for no discernible reason. And then a series of safeguards designed to ensure that the death penalty is fairly and reliably imposed — state and federal appellate review and clemency — completely and utterly failed.
All death sentences in California are automatically reviewed by the California Supreme Court. Tom’s appeal was heard in 1988, two years after three liberal justices were recalled by the voters and replaced by an ultra-conservative governor with ultra-conservative justices. The Court was thereby transformed almost overnight from one that was appropriately open to reversing cases based on meritorious claims to one that essentially rubber-stamped death penalty cases by finding virtually every error alleged in virtually every case to be harmless. Accordingly, Tom’s conviction and sentence were affirmed.
The case then moved to federal court, where in 1995, Tom’s death sentence and rape-related charges were reversed based on a finding of ineffective assistance of trial counsel for counsel’s inexcusable failure to adequately rebut the snitch testimony and other evidence that purported to establish rape. The state appealed this decision to the U.S. Court of Appeals for the Ninth Circuit.
It is not much of an exaggeration to say that the composition of the randomly drawn three-judge panel in the federal appellate courts is the most important factor in determining the life and death of a condemned inmate. If at least two of the judges on the panel are essentially liberal, the death penalty will likely be reversed; if they are conservative it usually will be upheld. It is simply luck of the draw and, unfortunately, Tom got a very, very bad draw. Despite what at the time was a majority of liberal judges on the Ninth Circuit, all three judges on Tom’s panel were extremely conservative Reagan appointees. It was therefore not surprising — but wholly arbitrary — when the panel reversed the district court’s ruling in 1996.
To mitigate such arbitrariness is another important safeguard — en banc review, in which an 11-judge Ninth Circuit panel has the option to review a 3-judge panel’s ruling. Court papers were filed requesting rehearing en banc, which can only be granted after one of the active judges who sits on the Ninth Circuit calls for a vote and a majority of those judges then vote in favor of rehearing. Given the number of liberal judges on the Ninth Circuit at that time it would be unusual for there not to at least be one judge calling for a vote in a death penalty case. However, on March 6, 1997, an order issued stating that the request for en banc review was denied because not one judge asked for a vote to rehear the case. After the U.S. Supreme Court denied review, an execution date was set for August 5, 1997.
In the months that followed, evidence surfaced that corroborated Tom’s long-standing version of events — that he and the victim had consensual sex on the night of her death. This included a statement from Tom’s roommate, David Leitch, that was never turned over to the defense. Such evidence completely undermined the prosecutor’s rape-murder theory and called into question the credibility and integrity of the prosecutor’s entire case. Unfortunately, presenting this new evidence was severely hampered by a federal law that had just been enacted in the wake of the Oklahoma City bombing. The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) was designed to thwart “frivolous appeals” but it cast far too wide a net and created virtually insurmountable hurdles to presenting new claims in federal court. Another problem was that the federal judge who had originally granted relief had passed away and the case was assigned to a far more conservative judge who was completely unreceptive to this new evidence and rejected the claim.
Another purported safeguard is clemency, a process in which the governor is empowered to act when the judicial system breaks down. No California governor since Ronald Reagan, however, has seen fit to grant clemency in a capital case, and in Tom’s case, Governor Pete Wilson proved no exception. Despite powerful and emotional pleas from family and loved ones, the lack of any prior criminal history, testimonials from prison guards about Tom’s exemplary conduct at San Quentin, and serious doubts raised regarding the fairness of the trial and the subsequent judicial proceedings, Wilson denied clemency. He ultimately based his decision on nothing more than a determination that Tom could not prove his innocence (“But at the end of it all, I am absolutely confident that he raped and murdered Ginger Fleischli”).
On August 3, 1997, one night before Tom’s execution was scheduled to take place, an 11-judge en banc panel of the Ninth Circuit issued a dramatic order. The court explained that it was taking the highly unusual step of ruling after its earlier denial of review because of “exceptional circumstances” caused by a malfunction in the court’s review process — a glitch in the court’s communication system that resulted in the failure of any judge voting to review the case en banc the first time — and because “we are convinced that the panel committed fundamental errors of law that would result in a manifest injustice.” The Ninth Circuit then vacated the three-judge panel opinion, and reversed the death sentence, holding that trial counsel’s ineffectiveness was prejudicial and that the prosecutor’s use of fundamentally inconsistent theories at Tom and David’s separate trials was fundamentally unfair.
The state sought review in the U.S. Supreme Court, while the prison proceeded with its execution protocol. With six hours to spare, the Supreme Court refused the state’s invitation to summarily reverse the Ninth Circuit and allow the execution to go forward. But it did agree to hear the state’s appeal on December 9, 1997.
The grand stairway of 53 steps, the massive Corinthian marble columns, the grandeur of the Great Hall, and all the pomp and circumstance attending the Supreme Court are surely designed to give lawyers a sense of awe and wonder as they go through the red-curtained entrance into the courtroom and sit just a few short feet from the nine justices. One comes completely down to earth, however, as it becomes clear that at least a majority of those justices intend to make sure one’s client is executed. This seemed like a foregone conclusion in Tom’s case. When the high court decides to intervene in a Ninth Circuit case that has reversed a death sentence it is usually not to approve its ruling. And thus, another safeguard proved ephemeral. On April 29, 1998, by a bare 5-to-4 majority, the Court reversed the Ninth Circuit and ordered it to reinstate Tom’s death sentence. Justice Kennedy (a former Ninth Circuit judge, himself) wrote the majority opinion, finding a “grave abuse of discretion” in the Ninth Circuit’s handling of the case, and stressed the importance of “finality” of state judgments. Thus, even though Tom was not at fault, the Court rejected Tom’s claims on the technicality that the Ninth Circuit had waited too long to grant en banc review. The Court never even addressed the validity of Tom’s substantive claims. A new execution date was set for July 14, 1998.
The last hope was the separate appeal of the federal judge’s rejection of the newly discovered evidence of innocence. The case was heard by the same en banc panel that had granted relief earlier, but the court was no longer receptive. It seemed chastened by the lashing it had received by the Supreme Court and shackled by the barriers to relief imposed by AEDPA. At 11:00 p.m., on July 11, 1998, the court denied relief. Tom was executed two nights later.
Tom Thompson was represented by a trial lawyer who failed to take the steps required to afford minimally competent representation in a capital case. He was convicted and sentenced to death in a county where a cynical prosecutor could pick and choose among jail inmates who were willing and able to manufacture evidence to support the prosecution’s theory of the case. His death sentence was affirmed by a state court that at the time refused to meaningfully review death penalty cases. Relief in federal court was first denied because he unluckily drew a conservative panel and later because of legal technicalities that had nothing to do with the merits of his claims. Despite obtaining new evidence that suggested he was innocent, Tom was precluded from obtaining a new trial because of insurmountable legal procedures and the paramount importance of closure.
Almost twenty years later, poor defense lawyers, unsavory prosecutors, disinterested courts and impenetrable procedural hurdles remain all too common elements in capital cases. They are inherent aspects of an irreparably broken system. Apart from the barbarity of the death penalty, the absence of meaningful safeguards to ensure that death sentences are not unreliably and arbitrarily imposed and carried out should be deeply disturbing to anyone who cares about fairness and justice.
Andy Love is a partner at Robbins Geller Rudman & Dowd. He previously represented California death row inmates for 25 years. He blogs at Fair and Unbalanced Blog where this piece was originally posted. Andy is on the Board of Directors of Taxpayers for Sentencing Reform, the organization sponsoring the effort to put a voter initiative on the 2016 ballot that would replace the death penalty with a sentence of life without the possibility of parole. To find out more, to volunteer and/or to donate click on: Justice That Works.