Family Makes Final Appeal for O.C. Killer

By ERIC BAILEY

July 22, 1997 12 AM PT

TIMES STAFF WRITER

SACRAMENTO — In a dramatic final plea, family and friends of Thomas Martin Thompson on Monday asked a clemency review board to spare his life, claiming the convicted rapist and murderer is innocent of the crimes that have led to his scheduled Aug. 5 execution.

During a two-hour session before the state Board of Prison Terms, more than a dozen people testified on Thompson’s behalf, including his mother, three sisters and a niece.

Just one--Michael Jacobs, the prosecutor who handled the case during trial 14 years ago--spoke against clemency for Thompson, who was convicted of raping and stabbing to death 20-year-old Ginger Fleischli in 1981 after an evening of barhopping in Orange County.

Jacobs said he remains convinced that Thompson raped Fleischli, then murdered her to cover it up. The prosecutor said Thompson deserves to die by lethal injection at San Quentin Prison.

“There was no possible, conceivable doubt about Thompson’s guilt,” Jacobs told the prison board, which will make a confidential recommendation on clemency to Gov. Pete Wilson. “Anyone who tells you there are doubts either doesn’t know the facts or is trying to deceive you.”

But others insisted that prosecutors got the wrong man. They complained that the evidence against Thompson was flimsy.

“I believe that the man is innocent,” said Lisa Nagelschmidt, Thompson’s younger sister. “If he is not granted a chance for a fair trial, the state of California will be executing an innocent man.”

The lopsided hearing was just one part of a concerted effort to persuade Wilson to block the execution.

Death penalty foes led by actor Mike Farrell sent a letter to Wilson calling for clemency. It included the names of scores of lawmakers, actors, authors and clergymen. In addition, several dozen activists marched peacefully near the Capitol carrying placards.

Thompson, who would become the fifth man to die in California since executions resumed in 1992, has never budged from his claims of innocence.

He contends that after an evening of drinking and smoking hashish, he and Fleischli had consensual sex in an oceanfront Laguna Beach studio apartment, then he passed out, slept until morning and never saw her again.

Fleischli’s body was discovered a few days later partially buried in a shallow grave amid a grove of trees at an Irvine nursery. Her shirt and bra were cut open, and she was wrapped in a cocoon of duct tape, a sleeping bag, blanket and rope.

While prosecutors won the death penalty against Thompson, his attorneys maintain that David Leitch, a former boyfriend of Fleischli, could be the real murderer.

Physical evidence linked Leitch to the crime--a footprint was found near Fleischli’s body and fibers were found in the trunk of his car. Leitch told investigators that Thompson forced him at gunpoint to help dispose of the body.

Thompson had no previous criminal record, but Leitch had been arrested before and threatened Fleischli in the weeks before her murder. Leitch was tried separately, convicted of second-degree murder and given 15 years to life in prison.

During Thompson’s trial, an investigator said an injury to Fleischli’s wrist appeared to be from handcuffs. Although defense attorneys argued that the investigator’s opinion was inaccurate, it proved to be damning evidence. Thompson was arrested in Mexico with handcuffs in his possession.

At Monday’s hearing, Thompson’s attorneys questioned his guilt and the adequacy of his legal representation during the 1983 trial. They also noted that two of the jurors who convicted Thompson of murder have signed a written declaration asking that his sentence be commuted to life without possibility of parole.

His attorneys also cite the disparity between the sentence meted out for Thompson and his co-defendant, Leitch, who is now eligible for parole.

In addition, they pointed to testimony from Leitch at a 1995 parole hearing suggesting that he saw Fleischli having consensual sex with Thompson. The rape was the special circumstance crime that combined with murder to put Thompson on death row.

Inge Lochrie, Thompson’s mother, recalled a boy who never got into trouble, who served as a school drum major. During high school, she said, he got into trouble only once for cutting school.

“For 25 years, everything was good,” Lochrie said. “Then in one night it all changed. It didn’t make sense then and it doesn’t make sense now.

Donald Heller, a former prosecutor who helped author California’s death penalty statute, cited a laundry list of problems with the case against Thompson.

He said the two jailhouse informants who testified were unreliable. One was known to trade information for favorable treatment. The other testified that Thompson bragged of stabbing Fleischli in the neck and upper torso, erroneous details that had been in the newspaper.

Heller also hit the prosecution for switching tactics in the two trials, focusing on Thompson as the killer and then making it appear that Leitch was the driving force behind the murder.

Calling himself a conservative and firm believer in the death penalty, Heller said that “if this were a Richard Allen Davis, I wouldn’t be here. In fact, I wouldn’t have a problem throwing the switch. But this case cries out for considered review. This case cries out for clemency.”

Jacobs, who prosecuted Thompson, argued that the testimony of the jailhouse informants wasn’t necessary and that Thompson “could have been convicted without them.”

He said that claims of inconsistency between the two trials were inaccurate, because he always portrayed Leitch as someone who “aided and abetted” Thompson.

He called Thompson a liar and “a manipulator” who told investigators a variety of stories.

“There is no doubt he did it,” Jacobs said. “I have a hard time believing the governor would grant clemency.”