"I think they got the wrong guy," a guard whispers nervously to me as I pass through the security checks to visit San Quentin's death row.
He is referring to the scheduled execution of Thomas Thompson two weeks from now. The only thing that can prevent it is an official grant of clemency by Gov. Pete Wilson.
Thompson, a Vietnam-era veteran without a single prior felony conviction, has been on death row since 1981 for the rape and murder of Ginger Fleischli. He has steadfastly proclaimed his innocence.
Doubts about Thompson's guilt are heard not only in whispers from distressed guards but from other surprising voices as well. Seven former prosecutors filed a "friend of the court" petition seeking to overturn Thompson's death sentence on grounds of prosecutorial misconduct -- and Thompson's innocence. One of the prosecutors is the author of the law under which Thompson was condemned to death.
At Thompson's trial, prosecutors kept from his attorney evidence that the "special circumstance" necessary for him to be sentenced to death -- rape -- had not in fact occurred. A federal district judge ruled that Thompson's attorney was inadequate and reversed the death sentence. But the federal appeals court dismissed the errors in the trial court as "harmless" and reinstated the death sentence.
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."