Thomas Martin Thompson

Thomas Martin Thompson (March 20, 1955 – July 14, 1998) was a convicted rapist and murderer, executed in 1998 by the state of California for the 1981 killing of Ginger Fleischli. His execution was controversial; his supporters believed him to have been innocent of the charges, while opponents thought Thompson's guilt was clear.^[1][2][3][4]

On September 11, 1981, Thomas Thompson, David Leitch (his roommate), Leitch's ex-wife, and Ginger Fleischli spent an evening in Laguna Beach, California visiting and drinking in bars. David Leitch and his wife departed around 9:30 PM; Fleischli and Thompson were joined at this last bar by Afshin Kashani. The three returned to the apartment shared by Leitch and Thompson apartment for more drinking and also smoking hashish provided by Kashani.

Fleischli was reported missing to police by Leitch's ex-wife two days later, and the following day the authorities found Fleischli’s body buried in a field 10 miles from Thompson's apartment. [Fleischli had moved in with Leitch's ex-wife after David Leitch had threatened to kill Fleischli and she was forced to leave the apartment that Leitch had shared with her as boyfriend and girlfriend. Thomas Thompson was Leitch's new roommate as of August, 1981.] The corpse had been wrapped in rope along with a sleeping bag and blanket, both taken from Thompson's and Leitch's apartment. Her head had been wrapped in duct tape. Fleischli had been stabbed multiple times in the head, and her body and clothing showed signs of murderous intent.^[4]

Regarding an alleged rape, there was no evidence of vaginal tearing or bruising and her Levis were fully zipped but not buttoned. (People v. Thompson (1988) 45 Cal.3d 86) Fleischli's blood was later found on a carpet in Thompson's apartment, approximately six feet from his bed.^[5] Both men were arrested after the body was discovered a few days after the murder.

On the night of September 11, 1981, 20 year old Ginger Fleischli was murdered by one of two men, Thompson or Leitch, in the apartment in Laguna Beach, Orange County, California. Fleischli had been stabbed five times in the head near her right ear. One of the stab wounds, inflicted with a single-edged knife, extended through the ear two and one-half inches, penetrating the carotid artery and causing death. Leitch owned a knife with a four-inch blade. The knife was at the apartment the day of the killing but subsequently disappeared.

Thompson had never before been arrested, and according to his sister, he had never even gotten a speeding ticket. At his trial, two of Thompson's former girlfriends testified that Thompson had never been abusive or threatening to them. Leitch, on the other hand, had at least six previous arrests including three for assaults with a knife. He also had a history of violence against women. When his marriage broke up in 1981, Fleischli moved into his apartment in Laguna Beach and renewed the previous sexual relationship that they had had together. But ten days before her death, Fleischli called a Laguna Beach police officer to help move her clothes out of the apartment, telling him that Leitch had threatened to kill her.

Leitch was granted a motion by the trial court to have his trial severed from that of Thompson. The state prosecutor had the option of which of the two defendants to try first. He elected to try Thompson first on the charges of rape and first-degree murder.

According to Thompson's account of events the night of Fleischli's murder, he had consensual sex with Fleischli before he passed out from excessive drinking and smoking hashish. He said he woke up in the morning and Fleischli was gone. Her blood was later found in the carpet near his bed by forensic investigators.^[5]

At Thompson's trial, the state prosecutor argued to the jury that Leitch had returned to the apartment after Thompson already had committed the murder and Leitch's only involvement in the case was to dispose of the body. (A second set of footprints, in addition to those of Leitch, were found near the body when it was discovered that were not Thompson's.)

The state prosecution had thus eliminated the only other realistic suspect in the murder of Ginger Fleischli. Crucial hearsay evidence came from two jailhouse informants. Edward Floyd Fink claimed that Thompson had confessed the rape and murder of Fleischli. According to his testimony, the murder was committed in order to prevent her from reporting the rape. Jailhouse informant John Del Frate testified at trial that while confined together, Thompson not only confessed the murder to him but that Thompson had also solicited him to kill Leitch.

The federal court of appeal that vacated the state's order of execution of Thompson in 1997 noted in its opinion: "The testimony of Fink and Del Frate provided the only direct evidence that (1) Thompson killed Fleischli, (2) Fleischli was raped, and (3) Thompson raped her." (Thompson v. Calderon, 120 F.3d 1045, 1056.) This same opinion stated: "The prosecution termed the two informants' testimony 'dispositive' and 'very, very damaging' because they had 'no reason whatsoever [to] lie.' The latter statement is patently untrue, as demonstrated by the fact that shortly after Fink incriminated Thompson, his parole hold was dropped and he was released from jail on the basis of favorable information provided by law enforcement officials." (Thompson v. Calderon, 120 F.3d 1045, 1056.)

Regarding the veracity of the statements made to the jury by the jailhouse informant John Del Frate, the court noted that even his "own family considered him to be a pathological liar." Thompson's jury had evidently not been made aware of this information in 1983 by Thompson's defense counsel.

On November 4, 1983, Thompson was convicted by an Orange County Superior Court jury of the first-degree murder and forcible rape of Fleischli.;^[4] and sentenced by the court to be executed.

Subsequently, the same state prosecutor (Orange County Deputy District Attorney Michael Jacobs) who was able to obtain the rape and first degree murder convictions of Thompson later brought to trial David Leitch for the murder of Fleischli based on an entirely different set of "facts" and the testimony of a different set of witnesses.

The same state prosecutor argued to this second trial jury for the murder of Ginger Fleischli: "[Leitch is] the only one, before the victim's death, who expressed any hatred for and the only one with any motive for her death." (Thompson v. Calderon, 120 F.3d 1045, 1056.) In the closing arguments at Leitch's trial, Jacobs labeled as absurd the closing arguments that he himself had made to the jury at Thompson's prior trial for the murder of Fleischli:

"So we have to ask ourselves, why would Mr. Thompson murder Miss 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 for the murder of his ex-girlfriend? Is that reasonable or logical? Do you think that's what happened? . . . . You think Mr. Thompson did this all by himself and waiting for this good guy to come home so he could see him standing over his ex-girlfriend, who he lived with ten days before? No, it didn't happen that way." (Thompson v. Calderon, 120 F.3d 1045, 1057.)

Jacobs was able to obtain a second degree murder conviction of Leitch by this second jury for which Leitch served seventeen years in prison. "The prosecutor [Michael Jacobs] submitted the following statement for use in Leitch's future parole proceedings: 'Fleischli was bound and gagged . . . by [Leitch and Thompson] . . . and was then stabbed . . . by one or both of the defendants.' He made no mention of any rape." (Thompson v. Calderon, 120 F.3d 1045, 1057.)

In summary, Jacobs used one set of "facts" to convict Thompson of the rape and murder of Fleischli; he used a different set of "facts" to convict Leitch of the murder of Fleischli; and he used a third set of "facts" regarding the murder of Fleischli for a parole board to consider in any of Leitch's future parole proceedings.

Despite the differences in the "facts" presented by the same prosecutor in the separate trials of two defendants for the same murder, on April 28, 1988, the California Supreme Court unanimously affirmed Thompson’s rape and murder convictions, and affirmed Thompson’s death sentence with two of seven justices dissenting.^[4]

After filing several unsuccessful habeas petitions with the California Supreme Court, Thompson was granted habeas relief as to his rape conviction by the United States District Court for the Central District of California, invalidating the death sentence on ineffective assistance of counsel grounds.

On June 19, 1996, a unanimous three-judge panel of the Court of Appeals for the Ninth Circuit reversed the District Court and reinstated Thompson’s death sentence. The Court of Appeals panel noted that, given the strong evidence of rape presented by the State, Thompson could not demonstrate prejudice under the prevailing legal standard, even if the court accepted Thompson's ineffective assistance of counsel argument. The panel then denied Thompson's petition for rehearing en banc, and on June 11, 1997 the Court of Appeals issued its mandate denying all habeas relief in Thompson’s case.

Subsequent habeas petitions by Thompson failed, until two days before Thompson was to be executed, when a divided en banc panel of the Court of Appeals recalled sua sponte the court’s June 11, 1997 mandate. This occurred well after the Court's usual timeframe for reconsideration, and after the Supreme Court of the United States denied Thompson's petition for certiorari and the Governor of California conducted a clemency review. The State immediately appealed the recall to the Supreme Court, which granted certiorari and ultimately reinstated Thompson's death sentence on a five-to-four vote. Justice Kennedy, writing for the majority, called the Court of Appeals' action a "grave abuse of discretion" by not adhering to the objects of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) in recalling its mandate: "Although the terms of AEDPA do not govern this case, a court of appeals must exercise its discretion in a manner consistent with the objects of the statute." ^[4]

Four justices of the Supreme Court strongly disagreed with the majority ruling reinstating the state of California's order of execution of Thomas Thompson. Justice Souter wrote in the four-justice dissenting opinion: "Whatever policy the Court is pursuing, it is not the policy of AEDPA. Nor is any other justification apparent. In this particular case, when all else is said, we simply face a recall occasioned by some administrative inadvertence awkwardly corrected; while that appellate process may have left some unfortunate impressions, neither its want of finesse nor AEDPA warrant the majority's decision to jettison the flexible abuse of discretion standard for the sake of solving a systemic problem that does not exist" Calderon v. Thompson, 118 S.Ct. 1489, 1507 (1998).

"The factors underlying the action of the Court of Appeals in this case were wholly appropriate, the court's stated justification having been to exercise extreme care to counter the malfunction of its own procedural mechanisms where the result otherwise might well be a constitutionally erroneous imposition of the death penalty." (Id. at 1506) The four justices of the U.S. Supreme Court arguing in dissent were unable to convince any member of the five-justice majority. Thompson was executed by lethal injection on July 14, 1998.

Donald Heller, the author of California's 1978 Proposition 7 (which increased the number of reasons for which an individual could be sentenced to death), became an opponent of the death penalty after the execution of Thompson.^[2]

BELATED JUSTICE FROM THE CALIFORNIA SUPREME COURT FOR THOMAS MARTIN THOMPSON

Filed March 2, 2005 IN THE SUPREME COURT OF CALIFORNIA In re PETER SAKARIAS S082299 on Habeas Corpus

In 1990, petitioners Peter Sakarias and Tauno Waidla were each, in separate trials, convicted of first degree murder with special circumstances and sentenced to death in the killing of Viivi Piirisild. [Ten years later,] We affirmed each of their convictions and sentences on automatic appeal (People v. Sakarias (2000) 22 Cal.4th 596 (Sakarias); People v. Waidla (2000) 22 Cal.4th 690 (Waidla)), but issued orders to show cause in response to their petitions for writs of habeas corpus, on claims the prosecutor, in each trial, had presented factual theories inconsistent with those presented at the codefendant’s trial. . . . On receipt of the returns and traverses, we consolidated the two causes for consideration and decision and appointed a referee to hear evidence and make factual findings. The referee has now issued his report, and the parties have filed briefs on the merits. [Note: This entire process took approximately fifteen years to complete. If the process had been completed in half that time, Thomas Martin Thompson would have made appeal based upon this opinion and be alive today.]

The evidence at petitioners’ trials showed they both participated in the fatal attack on Viivi Piirisild, which was perpetrated with a hatchet and a knife. (See 2 Sakarias, supra, 22 Cal.4th at pp. 611–613; Waidla, supra, 22 Cal.4th at p. 710.) But both petitioners contend their joint prosecutor, Los Angeles County Deputy District Attorney Steven Ipsen, inconsistently and falsely portrayed their respective roles in the attack, attributing to each, in their respective trials, a series of three blows struck to the victim’s head with the blade of the hatchet. Petitioners claim this prosecutorial inconsistency deprived them of due process, requiring that their death sentences be vacated. We agree with Sakarias that the prosecutor violated his due process rights by intentionally and without good faith justification arguing inconsistent and irreconcilable factual theories in the two trials, attributing to each petitioner in turn culpable acts that could have been committed by only one person. We also agree this violation prejudiced Sakarias, entitling him to relief. (S082299 – pages 1–2)

I. FACTUAL AND PROCEDURAL BACKGROUND C. The Habeas Corpus Proceedings

We issued orders to show cause based on petitioners' allegations that the inconsistent factual presentations outlined above deprived them of fair trials on the question of penalty, in violation of the due process guarantee of the Fourteenth Amendment to the United States Constitution, the Eighth Amendment’s prohibition on cruel and unusual punishment, and article I, section 15 of the California Constitution. (S082299 – pages 8–9)

II. DISCUSSION

B. The People’s Bad Faith Use of Inconsistent Theories Deprived Sakarias of Due Process, Requiring Vacation of His Death Sentence

Petitioners both claim Ipsen’s inconsistent attribution of the three hatchet blade blows deprived them of due process. The Attorney General contends the use of inconsistent arguments at separate trials “is permissible provided a prosecutor does not argue something that the prosecutor knows to be false.” For reasons explained below, we conclude that fundamental fairness does not permit the People, without a good faith justification, to attribute to two defendants, in separate trials, a criminal act only one defendant could have committed. By doing so, the state necessarily urges conviction or an increase in culpability in one of the cases on a false factual basis, a result inconsistent with the goal of the criminal trial as a search for truth. At least where, as in Sakarias’s case, the change in theories between the two trials is achieved partly through deliberate manipulation of the evidence put before the jury, the use of such inconsistent and irreconcilable theories impermissibly undermines the reliability of the convictions or sentences thereby obtained. In short, in the absence of a good faith justification, “[c]ausing two defendants to be sentenced to death by presenting inconsistent arguments in separate proceedings . . . undermines the fairness of the judicial process and may precipitate inappropriate results.” (Poulin, Prosecutorial Inconsistency, Estoppel, and Due Process: Making the Prosecution Get Its Story Straight (2001) 89 Cal. L.Rev. 1423, 1425 (hereafter Prosecutorial Inconsistency).)

We also conclude, however, that where, as here, the available evidence points clearly to the truth of one theory and the falsity of the other, only the defendant against whom the false theory was used can show constitutionally significant prejudice. For that reason, we conclude that Sakarias, but not Waidla, is entitled to relief on his petition. (S082299 – pages 17–18)

1. The People may not convict two individuals of a crime only one could have committed or obtain harsher sentences against two individuals by unjustifiably attributing to each a culpable act only one could have committed.

Judicial disapproval of the state’s use of inconsistent and irreconcilable theories in separate trials for the same crimes was first articulated in opinions by individual Supreme Court and lower federal court judges. (See Jacobs v. Scott (1995) 513 U.S. 1067 (dis. opn. of Stevens, J., from denial of stay) [fundamentally unfair to execute a person “on the basis of a factual determination that the State has formally disavowed” in coperpetrator’s later trial]; Drake v. Kemp (11th Cir. 1985) 762 F.2d 1449, 1479 (conc. opn. of Clark, J.) [prosecutor’s “flip flopping of theories of the offense was inherently unfair”].) Drawing on these separate opinions, several federal courts have since held that a prosecutor’s inconsistent argument in two defendants’ separate trials attributing the same criminal or culpability-increasing act to each defendant denies the defendants fundamentally fair trials.

In Thompson v. Calderon (9th Cir. 1997) 120 F.3d 1045 (Thompson), reversed on other grounds sub nom. Calderon v. Thompson (1998) 523 U.S. 538, a majority of the en banc court held that inconsistent prosecutorial theories may present a due process violation. There, Leitch and Thompson were both charged with raping and killing Ginger Fleischli. At their joint preliminary hearing and at Leitch’s trial, the prosecutor introduced and relied on evidence, including testimony by jailhouse informants recounting statements by Thompson, that indicated the two defendants had acted together, killing Fleischli because she was interfering with Leitch’s efforts to reconcile with his ex-wife. (Thompson, supra, at pp. 1055–1056 (plur. opn. of Fletcher, J.).) At Thompson’s trial (held before Leitch’s), however, the same prosecutor had introduced and relied upon other evidence, to the effect that Thompson alone killed Fleischli to prevent her reporting that he had raped her. (Id. at p. 1056.) The prosecutor thus “asserted as the truth before Thompson’s jury the story he subsequently labeled absurd and incredible in Leitch’s trial.” (Id. at p. 1057.)

The Thompson plurality concluded that “when no new significant evidence comes to light a prosecutor cannot, in order to convict two defendants at separate trials, offer inconsistent theories and facts regarding the same crime.” (Thompson, supra, 120 F.3d at p. 1058.) Three of the 11 judges participating fully joined with Judge Fletcher in her opinion on this point. (Id. at p. 1047.) Two more, in a concurring opinion by Judge Tashima, agreed that prosecutorial use of wholly inconsistent theories violates due process (id. at p. 1063), but believed that Thompson’s entitlement to relief depended on whether he was prejudiced, which in turn required a determination “which of the two inconsistent theories pursued by the prosecutor represents the true facts and which is false” (id. at p. 1064). (S082299 - pages 18–19)

These courts and judges have found a prosecutor’s 180-degree change in theory “deeply troubling” (Jacobs v. Scott, supra, 513 U.S. at p. 1069), in part because by taking a formal position inconsistent with the guilt or culpability of at least one convicted defendant, the government, through the prosecutor, has cast doubt on the factual basis for the conviction. “If the prosecutor’s statements at the Hogan trial were correct, then Jacobs is innocent of capital murder.” (Ibid.) “The conclusion seems inescapable that the prosecutor obtained Henry Drake’s conviction through the use of testimony he did not believe . . . .” (Drake v. Kemp, supra, 762 F.2d at p. 1479.) “The prosecutor . . . at Leitch’s trial essentially ridiculed the theory he had used to obtain a conviction and death sentence at Thompson’s trial.” (Thompson, supra, 120 F.3d at p. 1057.)

As both of two irreconcilable theories of guilt cannot be true, “inconsistent theories render convictions unreliable.” (Stumpf, supra, 367 F.3d at p. 613.) Because it undermines the reliability of the convictions or sentences, the prosecution’s use of inconsistent and irreconcilable theories has also been criticized as inconsistent with the principles of public prosecution and the integrity of the criminal trial system. A criminal prosecutor’s function “is not merely to prosecute crimes, but also to make certain that the truth is honored to the fullest extent possible during the course of the criminal prosecution and trial.” (United States v. Kattar (1st Cir. 1988) 840 F.2d 118, 127.) His or her goal must be “not simply to obtain a conviction, but to obtain a fair conviction.” (Brown v. Borg (9th Cir. 1991) 951 F.2d 1011, 1015.) “Although the prosecutor must prosecute with earnestness and vigor and ‘may strike hard blows, he is not at liberty to strike foul ones.’ ” (Smith, supra, 205 F.3d at p. 1049, quoting Berger v. United States (1935) 295 U.S. 78, 88; see also ABA Model Code Prof. Responsibility, EC 7-13 [“The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict”].)

For the government’s representative, in the grave matter of a criminal trial, to “chang[e] his theory of what happened to suit the state” is unseemly at best. (Drake v. Kemp, supra, 762 F.2d at p. 1479.) “The state cannot divide and conquer in this manner. Such actions reduce criminal trials to mere gamesmanship and rob them of their supposed purpose of a search for truth.” (Ibid.) Thus, even a court that did not believe inconsistent positions, by themselves, to be constitutional error found it “disturbing to see the Justice Department change the color of its stripes to such a significant degree . . . depending on the strategic necessities of the separate litigations.” (United States v. Kattar, supra, 840 F.2d at p. 127; see also Thompson, supra, 120 F.3d at p. 1072 23 (dis. opn. of Kozinski, J.) [prosecutor’s use of inconsistent factual theories “surely does not inspire public confidence in our criminal justice system”].) (S082299 - pages 21–23)

We have previously indicated that an inconsistent prosecutorial argument “made in bad faith” could be misconduct, and conversely that such argument was not improper if “based on the record and made in good faith” (People v. Farmer (1989) 47 Cal.3d 888, 923 (Farmer)), though we did not have occasion in that case to deal more definitively with the problem. With the issue more squarely before us here, we hold that the People’s use of irreconcilable theories of guilt or culpability, unjustified by a good faith justification for the inconsistency, is fundamentally unfair, for it necessarily creates the potential for—and, where prejudicial, actually achieves—a false conviction or increased punishment on a false factual basis for one of the accuseds. “The criminal trial should be viewed not as an adversarial sporting contest, but as a quest for truth.” (United States v. Kattar, supra, 840 F.2d at p. 127.)

By intentionally and in bad faith seeking a conviction or death sentence for two defendants on the basis of culpable acts for which only one could be responsible, the People violate “the due process requirement that the government prosecute fairly in a search for truth.” (Smith, supra, 205 F.3d at p. 1053.) In such circumstances, the People’s conduct gives rise to a due process claim (under both the United States and California Constitutions) similar to a claim of factual innocence. Just as it would be impermissible for the state to punish a person factually innocent of the charged crime, so too does it violate due process to base criminal punishment on unjustified attribution of the same criminal or culpability-increasing acts to two different persons when only one could have committed them. In that situation, we know that someone is factually innocent of the culpable acts attributed to both. (See Prosecutorial Inconsistency, supra, 89 Cal. L.Rev. at p. 425 [“When the prosecution advances a position in the trial of one defendant and then adopts an inconsistent position in the trial of another on the same facts, the prosecution is relying on a known falsity”].) (S082299 - pages 23–24)

“[W]here, as here, a prosecutor who seeks convictions or death sentences against two individuals through inconsistent and irreconcilable factual theories deliberately omits in one trial evidence used in the other, so as to make possible the argument of the inconsistent theories, the prosecutor’s manipulation of evidence does show that the inconsistent theories were not pursued in good faith. The People, therefore, deprived Sakarias of due process by unjustifiably using inconsistent and irreconcilable factual theories to obtain a death sentence against him. Whether that conduct was prejudicial must still be determined.” (See part II.B.3., post.)7

[Footnote 7 Because Ipsen’s bad faith in Sakarias’s trial is clearly demonstrated by his deliberate manipulation of the evidence, we need not decide whether the burden of showing good or bad faith lies with the People or the petitioner. Nor need we address what obligation, if any, the People may have to correct inconsistent judgments obtained through inconsistent arguments made by the prosecutor in good faith.] (S082299 - pages 28–29)

Sakarias’s petition for a writ of habeas corpus is granted insofar as it claims prosecutorial inconsistency material to the penalty verdict, and the judgment of the Los Angeles County Superior Court in People v. Peter Sakarias, No. A711340, therefore is vacated insofar as it imposes a sentence of death.

WERDEGAR, J.

WE CONCUR: GEORGE, C. J. KENNARD, J. CHIN, J. BROWN, J. MORENO, J. (S082299 - page 40)

CONCURRING AND DISSENTING OPINION BY BAXTER, J

Footnote 4. Judge Kozinski conceded that, if only one defendant could have committed a capital crime, but two were convicted and sentenced to death in separate trials on irreconcilable theories by mutually inconsistent verdicts, the state might be required to determine which judgment was false, and to take steps to set it aside, because “the better view seems to be that the state has no right to execute an innocent man, no matter how fairly it has obtained the conviction.” (Thompson, supra, 120 F.3d 1045, 1071 (dis. opn. of Kozinski, J.), italics added.) (Dissenting Opinion S082299 - page 6)

I do not mean to imply that I would never find prejudicial misconduct in a prosecutor’s use of irreconcilable theories and evidence against separately tried defendants. As the cases have suggested, difficult questions arise where, for example, such tactics lead to the convictions of two persons for a crime only one could have committed. (Dissenting Opinion S082299 - page 12)

Please note that there is no citation for this opinion issued by the California Supreme Court. For some reason(s) that were left unexplained, the California Supreme Court issued this opinion as an Unpublished Opinion. And, according to the 2017 California Rules of Court, Rule 8.1115 “Citation of opinions,” at (a) “Unpublished opinion”: “Except as provided in (b), an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.

(b) Exceptions An unpublished opinion may be cited or relied on:

(1) When the opinion is relevant under the doctrines of law of the case, res judicata, or collateral estoppel;

or

(2) When the opinion is relevant to a criminal or disciplinary action because it states reasons for a decision affecting the same defendant or respondent in another such action.

Significance of California Supreme Court opinion S082299 going forward and upon the wrongful conviction of Thomas Martin Thompson:

Henceforth, in any similar factual cases to that of Thomas Martin Thompson where only one defendant could have committed a capital crime, but two were convicted and sentenced in separate trials on irreconcilable theories by mutually inconsistent verdicts, the state judiciary is now required to determine which judgment was false, and to take steps to set it aside, because “the better view seems to be that the state has no right to [imprison or] execute an innocent man [or woman]." Any such wrongfully-convicted criminal defendant may seek habeas relief by appropriately citing S082299 under the provisions of 2017 California Rules of Court, Rule 8.1115 “Citation of opinions,” (b)(1).

Unfortunately, Thomas Martin Thompson was wrongfully convicted in this manner and inappropriately found guilty of rape and murder by a jury, sentenced to be executed by the Court, and in fact was executed by the State of California at San Quentin State Prison on July 14, 1998. Apparently, the estate of Thomas Thompson has no legal recourse against the State of California.

1972 U.S. Supreme Court mandate upon every federal and state prosecutor's office to disclose evidence affecting government witness credibility when the reliability of a given witness may well be determinative of guilt or innocence:

In 1972, the United States Supreme Court issued a clear mandate, effective immediately upon every federal and state prosecutor office within the United States, regarding prosecution utilization of jailhouse informants at criminal trials.

“When the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within the general rule of Brady v. Maryland, 373 U. S. 83 (1963. . . . [W]hether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor. The prosecutor’s office is an entity and as such it is the spokesman for the Government. . . .To the extent this places the burden on the large prosecution offices, procedures and regulations can be established to carry the burden and to insure communication of all relevant information on each case to every lawyer who deals with it.” (Giglio v. United States, 405 U.S. 150, 154 (1972).)

Thompson’s rape and murder trial took place in Orange County in 1983 for which he was found guilty on both charges by a jury and sentenced by the court to be executed. An automatic appeal to the California Supreme Court followed in 1988 and both the rape and murder convictions were upheld in a unanimous ruling.

As previously stated, in August, 1997, the federal Ninth Circuit Court of Appeals (en banc) granted Thompson’s writ of habeas corpus in part and ordered that the state of California vacate its order of execution of Thomas Thompson. The court ordered the district court to enter the partial writ “unless the State elects to retry Thompson within a reasonable time.” The court affirmed the district court’s previous findings with respect “to the rape conviction, the rape special circumstance, and the death penalty.” And, the court remanded the first degree murder conviction to the district court for further consideration. (Thompson v. Calderon, 120 F.3d 1045, 1060.) The prevailing judges of a divided en banc panel reasoned as follows:

“On March 29, 1995, [a federal] district court granted in part Thompson’s first federal habeas petition. It found that Thompson’s trial counsel provided constitutionally deficient representation in failing to refute the rape evidence and in failing to impeach the testimony of a notoriously unreliable jailhouse informant. The district court ordered that Thompson receive a new trial on the rape conviction and the rape special circumstance finding and vacated his death sentence.” (Id. at 1047.) “At the evidentiary hearing, Thompson produced Edward Floyd Fink’s extensive history as an informant who frequently claimed that fellow inmates confessed their crimes to him while awaiting trial and who frequently received favors in exchange for cooperating with police. . . . Thompson offered into evidence a transcript of Fink’s testimony in People v. Goldstein, a 1980 California murder trial [in Los Angeles County]. . . . [Defense counsel] could have obtained evidence about Fink’s background as an informant and the favors he received in exchange for his frequent testimony. Of particular relevance to Thompson’s case was the fact that Fink was released from his parole hold soon after he provided the information that incriminated Thompson.” (Id. at 1054.)

“[Defense counsel’s] failure to investigate and impeach Fink severely prejudiced Thompson. [He] could have destroyed Fink's credibility. Without Fink's testimony, the State's rape case against Thompson would have been dramatically weaker. We are in accord with the district court; [defense counsel’s] ineffective assistance in defending against the forensic evidence and against Fink's testimony fatally undermines our confidence in the outcome of Thompson's rape conviction. See Kyles, 514 U.S. at 434‑35, 115 S.Ct. at 1566. Without the rape finding, Thompson could not have been sentenced to death. [Defense counsel’s] ineffective performance therefore prejudiced not only the rape conviction and the rape special circumstance, but the ultimate outcome: the finding of death eligibility and the imposition of a capital sentence.” (Id. at 1054.)

Ironically, it was the jailhouse informant witness-impeaching materials that Thomas Thompson’s habeas corpus attorneys had gathered against Edward Floyd Fink which allowed the appellate attorneys for Thomas Goldstein to file his first habeas corpus appeal which eventually led to his release from prison. Goldstein’s murder trial had taken place in Los Angeles County in 1980, three years prior to Thompson’s rape and murder trial in neighboring Orange County in 1983. Goldstein’s trial foreshadowed Thompson’s trial three years later as it related to the prosecution’s utilization of habitual jailhouse informant Fink.

“Two days after Goldstein’s arrest, Edward Floyd Fink, a heroin addict with several felony convictions, was placed in the same cell as Goldstein in the Long Beach City Jail, Los Angeles County. The next day, Fink reported to police that Goldstein had confessed to the murder. At Goldstein’s murder trial, Fink testified Goldstein told him he was in jail because he shot a man in a dispute over money. Fink also testified he was to receive no benefit as a result of his testimony against Goldstein and that he had never received any such benefits. [Fink had, in fact, been acting as an informant for the Long Beach Police Department for several years and had received multiple reduced sentences in return.] In 1980, Goldstein was convicted by a jury of first-degree murder and sentenced by the court to twenty-seven-years-to-life in prison.” (Source: Court of Appeal of the State of California, Second Appellate District in 2007—Goldstein v. Superior Court of Los Angeles County)

By the end of the 1980s, the Los Angeles County District Attorney’s Office utilization of extremely dubious jailhouse informants in capital cases had become so blatant and so pervasive that a grand jury was impaneled to investigate this specific issue. In 1990, the Grand Jury issued its report titled: REPORT OF THE 1989-90 LOS ANGELES GRAND JURY: “Investigation of the Involvement of Jail House Informants in the Criminal Justice System in Los Angeles”

The Grand Jury first attempted to get some idea of the scale of the problem that they were investigating. “A review by the District Attorney’s Jailhouse litigation team identified 153 cases wherein jail house informants were called to testify during the ten years prior to October 1988. Certain members of the defense bar who inquired into the matter of jail house informants estimated that at least 250 cases were so affected.” (Report at page 4)

Only two findings were made and published in the Grand Jury Report and these were displayed prominently in the over 100 page Report at page 6:

A. The Los Angeles County District Attorney’s Office failed to fulfill the ethical responsibilities required of a public prosecutor by its deliberate and informed declination to take the action necessary to curtail the misuse of jail house informant testimony. B. The Los Angeles County sheriff’s department failed to establish adequate procedures to control improper placement of inmates with the foreseeable result that false claims of confessions or admissions would be made.

According to the Grand Jury Report, trial court deputy district attorneys in major cases were inundated with offers from jailhouse informants willing to testify.

“Several Deputy District Attorneys tried major cases and, often early in the course of their work, heard from informants numbering from six to 20. Frequently, the informants being considered for testimony in these major cases were narrowed to a very few, sometimes to only one or two witnesses. No record was kept of those who were rejected and the reasons for that determination. If the informants were again to offer testimony in other cases, there existed no systematic means to review the knowledge obtained by the earlier prosecutor.” (Report at page 111)

At the completion of their work the members of the Los Angeles County Grand Jury encountered an unusual problem. The Grand Jury members had presumed that all of the information that they had gathered in the course of their investigation as to the identity of specific extremely dubious jailhouse informants and the trials at which each of these individual witnesses had testified would be part of the public record and thus readily available in support of habeas appeals brought by defendants wrongfully convicted in this manner. However, the legal counsel that had been appointed to advise the Grand Jury in its work overruled the Grand Jury members on this issue. The specific identity of jailhouse informants that had come to the Grand Jury’s attention and the trials at which they had testified would remain secret unless the California Supreme Court made a contrary ruling on the issue. The test case on this very issue, People v. Gonzalez, soon followed.

On December 4, 1990, the Los Angeles Times reported on the California Supreme Court’s ruling in the case of People v. Gonzalez (51 Cal.3d 1179):

The state Supreme Court, in a far-reaching ruling emerging from the jailhouse informants scandal in Los Angeles, drastically limited the ability of convicted criminals to get information from prosecutors about roles informants played in their cases. In a 5-2 decision, the justices said that such defendants have no legal right to “fish” through official files to confirm “mere speculation” of wrongdoing to challenge the constitutionality of their convictions. After their convictions have been upheld, defendants bear the burden in any subsequent appeal and must provide “some concrete information” to justify court-ordered investigation, the court said in a 115-page opinion. Allowing such inquiries without restrictions would have “enormous consequences,” requiring judicial reviews of countless challenges that might arise in cases where Los Angeles jailhouse informants were used over a 10-year period ending in 1988. The justices said they “expect and assume” prosecutors will voluntarily disclose any such information “promptly and fully.”

In a stinging dissent, Justice Allen E. Broussard accused the majority of creating a “Catch-22” situation where a defendant could not pursue a constitutional challenge without facts – but had no effective way to obtain those facts. Broussard, backed by Justice Stanley Mosk, warned that the state now could execute the defendant without revealing that his conviction and sentence were obtained with perjured informant testimony. “This is a miscarriage of justice which may return to haunt us,” he said.

Thomas Goldstein had been convicted for murder in 1980 by the Los Angeles District Attorney’s Office in large measure because of the hearsay confession testimony of habitual jailhouse informant Edward Floyd Fink. There should be little doubt that Edward Floyd Fink was part of the secret record portion suppressed from publication in the “REPORT OF THE 1989-90 LOS ANGELES GRAND JURY: “Investigation of the Involvement of Jail House Informants in the Criminal Justice System in Los Angeles.” But the 5-2 decision of the California Supreme Court in People v. Gonzalez effectively prevented Goldstein’s appellate attorneys from being able to access this information. The ruling also prevented anyone else, for example Thomas Thompson, from being able to take advantage of this suppressed information as a result of the California Supreme Court’s ruling in 1990.

However, as previously stated, Goldstein became the beneficiary of a godsend. It was the jailhouse informant witness-impeaching materials that Thompson’s habeas corpus attorneys had gathered against Edward Floyd Fink which allowed the appellate attorneys for Thomas Goldstein to file his first habeas corpus appeal which eventually led to his own release from prison.

The 1972 U.S. Supreme Court Ruling in Giglio Granted Specific Protection to Criminal Defendants; a 2009 U.S. Supreme Court Unanimous Case Ruling, Involving Thomas Goldstein as One of the Parties, Granted Absolute Immunity for Violations of the 1972 U.S. Supreme Court Giglio Mandate by High-Ranking Prosecutor Office Administrators

Upon his release Goldstein filed a 42 U.S.C. § 1983 civil action against the former Los Angeles County district attorney and chief deputy district attorney. The prosecution office administrators, claiming absolute immunity from such a § 1983 action, asked the District Court to dismiss the complaint. The District Court denied the motion to dismiss on the ground that the conduct asserted amounted to "administrative," not "prosecutorial," conduct; hence it fell outside the scope of the prosecutor's absolute immunity to § 1983 claims. The Ninth Circuit, considering petitioners' claim on an interlocutory appeal, affirmed the District Court's "no immunity" determination. The U. S. Supreme Court accepted review of the Ninth Circuit's decision.

Justice Breyer delivered the opinion for a unanimous U. S. Supreme Court in John VAN de KAMP et al., Petitioners v. Thomas Lee GOLDSTEIN, 129 S.Ct. 855, 555 U.S. 335, (2009):

We here consider the scope of a prosecutor's absolute immunity from claims asserted under Rev. Stat. § 1979, 42 U.S.C. § 1983. See Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984 (1976). We ask whether that immunity extends to claims that the prosecution failed to disclose impeachment material, see Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763 (1972), due to: (1) a failure properly to train prosecutors, (2) a failure properly to supervise prosecutors, or (3) a failure to establish an information system containing potential impeachment material about informants. We conclude that a prosecutor's absolute immunity extends to all these claims. (Van de Kamp v. Goldstein at 858-59.)

Upon his release, Goldstein filed this § 1983 action against petitioners, the former Los Angeles County district attorney and chief deputy district attorney. Goldstein's complaint (which for present purposes we take as accurate) asserts in relevant part that the prosecution's failure to communicate to his attorney the facts about Fink's earlier testimony-related rewards violated the prosecution's constitutional duty to "insure communication of all relevant information on each case [including agreements made with informants] to every lawyer who deals with it." Giglio, at 154. Moreover, it alleges that this failure resulted from the failure of petitioners (the office's chief supervisory attorneys) adequately to train and to supervise the prosecutors who worked for them as well as their failure to establish an information system about informants. And it asks for damages based upon these training, supervision, and information-system related failings. (Id. at 859.)

We conclude that the very reasons that led this Court in Imbler [a five-to-three ruling with a strongly principled dissent, also relevant to the Goldstein and Thompson cases] to find absolute immunity [for trial court prosecutors] require a similar finding in this case. We recognize, as Chief Judge Hand pointed out, that sometimes such immunity deprives a plaintiff of compensation that he undoubtedly merits; but the impediments to the fair, efficient functioning of a prosecutorial office that liability could create lead us to find that Imbler must apply here. (Id. at 863-64.)

Conclusion:

Following his release from prison in April, 2004, after serving twenty-four years in prison for a crime which he did not commit, Goldstein summarized the important non-events of his life following his wrongful conviction: “I was 31 years old. I never got married. I never had children. I never started my career. No human being should have to suffer what I went through.”

Unlike Thomas Goldstein, Thompson never made it out of prison alive. A final observation on the character of the man who was Thomas Thompson is in order. It takes the form of a newspaper article that was published in the morning edition of the Marin Independent'" Journal (p. A5) on July 14, 1998, following Thompson's execution by the State of California on this anniversary of Bastille Day in the first minutes past midnight. A reporter with the KRT News Service interviewed Thompson’s sister on the day before his execution:

Although [Thompson] hadn’t seen her in more than year, he spoke to his mother by telephone, sometimes twice a day. Ingeborg Lochrie, his mother, had battled chronic lymphatic leukemia for the past six years.

His sister, Lisa Nagelschmidt, 36, said Thompson was “an all-American typical big brother to a sometimes bratty little sister.” She loved him and looked up to him. “He had never been arrested. He had never even gotten a speeding ticket.”

She talked to her brother from her home in Arroyo Grande on the Central Coast. “I was crying and crying, saying what can I do for you? I told Tom I’d come up there,” she said. But he wanted her with their mom. “He told me, ‘Get on that train and go take care of mom for me.’”

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