Eleven Black Robes
by John Jay Ponce
Eleven black-robed federal employes whose opinions, apparently, are in the main unconstitutional have saved Thomas Thompson from being punished for murder.
The eleven are the judicary panel of the Ninth Circuit Court of Appeals. As of this past weekend those eleven voted in majority to stay the execution of Thompson, 42, who now is a cause celebre against the death penalty. The heart of Thompson's execution stay is that the murder was under the influence of having smoked hashish at the time of his murdering 20-year-old Ginger Fleschli in 1981.
Actually, the judges' stated decision to save Thompson from injected capital punishment is because they as individuals doubt that Thompson's initial conviction in 1983 of rape-and-murder was fair, in that perhaps a prosecutor then did not wholly prove that a rape occurred.
Capital punishment in Mr. Thompson's original conviction was called for owing to the rape and murder of the girl, called "murder with special circumstances" in California legal parlance. Without the "special circumstance" of raping Ms. Fleschli Thompson could yet be assigned to life in prison or some lesser penalty, including -- if the initial prosecution is labeled "misleading" -- service of a short amunt of time, already having been completed. He could be freed.
He could be freed, also, if the Ninth Circuit's clicque of liberal judges eventually sets in motion a new trial and the State of California elects to not try Thompson again owing to inability to secure prosecutorial testimony after this lapse of 16 years.
The Ninth Circuit Court of Appeals, based at San Francisco, has an atrocious record of failing in placing its decisions and reversals before the U.S. Supreme Court. In the past two years the Ninth has sent 41 appeal decisions to the High Court -- yes, even the High Court with a number of "liberal" members appointed by the sitting President -- and suffered rejection of its appeals decisions in 38 of those cases.
That is a condemnation of the opinionmaking of the majority of the Ninth Circuit Court of Appeals. Of 41 constitutional questions it was found in error on 38. That should be grounds for disbarring the fallacious judges, let alone questioning their ability to understand the Constitution even to the basic requisites of citizenship.
Condemnation of another sort -- one important to this case -- is needed.
In developing its appeals argument, the current majority of the Ninth Circuit Court argued that initial prosecution of Thompson may have been misleading in that, in his time-of-arrest drug-smoky haze, he failed to convince authorities of anything but that he had raped the girl prior to stabbing her. He agreed, and evidence showed, that he had entered her sexually, but he was just to fuzzed by his toking to remember details of the intercourse.
Sixteen years later, as the executioner prepared the syringe for Thompson's last injection, the murderer's phalanx of attorneys convinced the Ninth Circuit's "robes" that Thompson may have first enjoyed "consensual sex" with the 20-year-old before taking a knife and whittling her body to death. It did not hurt Thompson's case that anti-capital punishment rallies were being held in his behalf in San Francisco, Sacramento, Los Angeles and outside San Quentin where he is housed. Hollywood contingents included Mike Farrell, formerly of the TV show M*A*S*H.
It was interesting that many rallyists argued not that Thompson killed, but that Thompson "probably" killed sans rape, thus striking him off the list of viable executions.
The "probably" allegation is important. Sixteen years after the slicing up of his sexual conquest Ginger Fleschli, Thomas Thompson also argues a "probably": He "probably" obtained permission from Ms. Fleschli to have sex with her before he hacked her from the face of the Earth.
It is now up to the nine of the U.S. Supreme Court to determine the most appropriate "probably" of the Thompson case. Will it be the "probably" that he did not legally rape the girl prior to plunging a knife into her, or a "probably" that the sorry record of the handsomely paid but predominantly wrongheaded Ninth District Circuit Court of Appeals is wrong again, and wrong on the side of a man who and overwhelming majority agree killed another person?
One "probably" is already a certain. For the family and friends of Ginger Fleschli there is no "probably" that their 16-year grief and victims' rights are being callously twisted by the Ninth Circuit Court.
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