Michael Kroll

Fleischli was stabbed five times in the head with a single-edged knife. David Leitch, Thompson’s co-defendant — and his roommate for three weeks — was Fleischli’s boyfriend until shortly before the murder. He owned a single-edged knife. And, unlike Thompson, he had a long record of violence against women, including three prior assaults with a knife. Less than two weeks before she was killed, Fleischli had called the police and reported that Leitch had threatened to kill her.

Leitch agreed to testify against Thompson. He received a prison term of 15 years to life. The California Supreme Court — the final state court of appeal — refused to overturn Thompson’s sentence. Despite the doubts raised by the seven former prosecutors and others, it is unlikely that any other court will step in and halt the gassing of Tommy Thompson, set for just past midnight on Aug. 5.

Disturbing as it is that California might be putting to death an innocent man, it comes as no surprise to anyone familiar with death penalty law.

Four years ago, the U.S. Supreme Court ruled that states do not violate the Constitution by executing an innocent person — as long as the judicial process that led to the erroneous conclusion was itself constitutional. The justices also pointed to an extrajudicial safety valve — executive clemency. Writing for the court, Chief Justice William Rehnquist said, “Clemency is deeply rooted in our Anglo-American tradition of law and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted.”

That didn’t help in the actual Texas case under review. Even as the court ruled that the Lone Star State could legally kill Leonel Herrera in 1993, the state quickly injected him with poison — despite new evidence pointing to his possible innocence. And it may not help Tommy Thompson. Since the death penalty was reinstated in 1975, no California governor has granted clemency. Nationwide, clemency was granted twice in 1992, once in 1993, once in 1994, not at all in 1995, three times in 1996 and not at all so far this year. Wilson has presided over the executions of four men, although Thompson is the first to raise a claim of actual innocence.

According to a report released last week by the Death Penalty Information Center, at least 69 people have been released from death row since 1973, including those granted clemency, “after evidence of their innocence emerged.” This record of official error is one reason the American Bar Association called for a nationwide moratorium on executions last February.

The urgency of Thompson’s situation, however, is best expressed not through studies or statistics, but in the words of the guard who watches me pass through the San Quentin metal detector. Looking over his shoulder to make sure he’s not overheard, he says quietly, “The system screwed up here.”

The New Hampshire primary also suggests a shift in public mood. In 1992, Bill Clinton felt compelled to leave New Hampshire long enough to be seen presiding over the execution of a severely brain-damaged and retarded prisoner. This year, Republican Gov. George W. Bush — who boasts of presiding over more executions than any governor in history — was overwhelmingly trounced in his primary bid in the same state.

There are other signs that our love for the death penalty is on the wane. Last year, the number of death sentences meted out was the fewest in six years. The number of commutations also rose to a six-year high in that period.

There are many reasons for the shift but first among them — and the immediate cause of Ryan’s announcement — is the rash of innocent people recently released from death row, often after many years. In Illinois, more people (13) have been freed than executed (12) since 1977. Anthony Porter spent 15 years on death row, and was only two days away from being executed when a group of committed college students convinced authorities they had proof of his innocence.

New Hampshire legislators heard Paris Carriger testify about the 21 years he spent on Arizona’s death row before being exonerated. On the day of Gov. Ryan’s announcement, a judge released Dwayne McKinney from a California prison where he spent 19 years for a murder he did not commit — as the prosecutor himself admitted. In all, 84 people have been freed from death row since capital punishment was restored.

Further undermining the public’s faith in the fairness of the process is the use of jailhouse informants to obtain a conviction in exchange for significant favors like a reduced sentence.

Other events and facts may be moving the public to see the death penalty as the ultimate abuse of human rights: