Prop 62 Will End California's Unreliable Death Penalty; Prop 66 Will Perpetuate Its Unreliability

My client Tom Thompson was executed in 1998

I knew if I wanted to see Tom one last time I had to leave for the prison soon. It was already late in the afternoon and at 6:00 pm, he would be taken from the visiting area to the death watch cell for his last meal. There he would remain until 25 minutes before midnight when he would be led to the execution chamber next door. There wasn’t anything left for me to do anyway, so I left my San Francisco office and drove over the Golden Gate Bridge to San Quentin State Prison. 

The parking lot to the East Gate of the prison is just a few yards from the San Francisco Bay. Even after countless visits the contrast between the sweeping vista of the coastline and the grim reality inside the prison’s peach colored concrete walls is striking. I passed through security and walked slowly down the long path leading to the Main Visiting Room. I was let in through the two sets of heavy doors, and saw Tom, surrounded by family and close friends, presiding over a gathering that could only be described as surreal. Tom had been on death row for fourteen years, and the prison guards who knew him well seemed as traumatized as everyone else. They were overly solicitous, awkward, almost apologetic. Instead of the usual vending machine fare there was a platter of cold cuts for sandwiches and sodas on a long table. Although in a matter of hours he was going to be strapped to a gurney and lethally injected with poison, it was Tom who was trying to keep things light, with the corny jokes and over-the-top impersonations – Steve Martin as the “Wild and Crazy Guy” and Mike Myers as Austin Powers – with which I had become all too familiar.

Behind his silliness, Tom was thoroughly depleted from being the center of a spectacle that surrounded him as the fifth man about to be executed in California since the death penalty was re-instituted in 1977. A physically healthy 43 year old was going through the process of dying, and it was disorienting and  unbearably stressful. He had been enduring emotionally-charged visits from his friends and loved ones, for whom he felt the need to constantly perform. He met often with me and other members of the legal team to approve a list of execution witnesses (he was entitled to five) and to be kept abreast of last minute developments – of which there were few. He had been under 24 hour surveillance from guards for the past five days, making sleep impossible. In accordance with prison rules, he had been stripped of his “non-legal property.” He had no reading or writing material. He was denied his art supplies, which he had used for surprisingly impressive paintings over the years, including a portrait of Billy Idol he had given me a few months earlier.

We had been preparing for this moment for far too long, having gone through a similar process one year earlier when, despite a stay of execution, prison personnel proceeded methodically with its execution protocol until, with six hours to spare, they were finally assured that the Supreme Court would not disturb the stay. There was not much left to say. Tom, although hampered by waist chains, enveloped me as best he could in a big bear hug, and thanked me for all I had done. He told me that I should feel proud about putting up such a good and righteous fight. I replied that it had been an honor to have worked with him. I exchanged tearful goodbyes with his sister and mother. I walked out of the prison and returned to my office where I continued to file court papers with little chance of success and railed to reporters about injustice. All to no avail. Six minutes after midnight on July 14, 1998, Tom Thompson was dead.

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Tom Thompson had no criminal record or history of violence when he was tried for the murder of Ginger Fleischli in 1984.  He was found guilty of murder and sentenced to death based largely on the false testimony of jailhouse snitches and the failure of his trial lawyer to challenge the bogus evidence of rape invented by the prosecutor.  (The rape special-circumstance provided the basis for the death penalty.)

An explosive scandal involving the Orange County D.A.'s office has only recently shed light on the extent of the unethical behavior routinely engaged in by its prosecutors to secure death sentences.  The reliability of many other Orange County cases has been called into question since the D.A. scandal broke -- and one murder conviction based on the false testimony of one of the very same snitches who testified against Tom has been reversed.  Of course, this all comes too late for Tom.

There are approximately 750 men and women on death row in California.  Tom Thompson is one of 13 who have been executed since the death penalty was reinstated almost 40 years ago.  While others sentenced to death around the same time languished on death row (several of whom continue to languish), his case jumped to the head of the class for no discernible reason.  And then a series of safeguards designed to ensure that the death penalty is fairly and reliably imposed -- most importantly, state and federal court review -- completely and utterly failed. 

Tom was represented by a trial lawyer who declined to provide even minimally competent representation that is constitutionally required in a capital case. He was convicted and sentenced to death in a county where a cynical prosecutor could pick and choose among jail inmates who were willing and able to manufacture evidence to support the prosecution’s theory of the case.  Nevertheless, his conviction and death judgment were rubber-stamped by the California Supreme Court which for most of the last three decades refused to meaningfully review death penalty cases.

Tom's death sentence and rape-related charges were reversed in federal court based on his lawyer's failure to adequately challenge the prosecutor's case.  But a randomly drawn conservative 3-judge panel of the Ninth Circuit overturned that ruling and further review by an 11-judge "en banc" panel was denied -- not because of anything having to due with the merits of Tom's legal claims, but because of a glitch in the court's internal communication system.  The Ninth Circuit ultimately remedied its oversight, vacated the death judgment and ordered a new trial.  But the U.S. Supreme Court reversed and reinstated Tom's death sentence based on a legal technicality -- that Ninth Circuit had waited to long to grant relief.  Meanwhile, new evidence surfaced that corroborated Tom's long-standing version of events supporting his claim of innocence.  But this evidence was deemed to have been discovered too late and presenting it to the courts was stymied by insurmountable legal procedures that favored finality over fairness and reliability.

Almost twenty years later, poor defense lawyers, unsavory prosecutors, disinterested courts and impenetrable procedural hurdles remain all too common elements in capital cases.  They are inherent aspects of an irreparably dysfunctional system. Apart from the barbarity of the death penalty, the absence of meaningful safeguards to ensure that death sentences are not unreliably and arbitrarily imposed and carried out should be deeply disturbing to anyone who cares about justice. 

There are two death penalty initiatives on the ballot in California:  Proposition 62 will repeal the death penalty and replace it with a sentence of life without the possibility of parole.  Proposition 66 purports to reform it with what the Los Angeles Times described as “a menu of mostly distasteful ideas.”

What Proposition 66 would actually do is take a broken system and make it worse by shifting the costs and burdens to ill-equipped lower courts and unqualified attorneys. It purports to speed up appellate review of death sentences by adding new bureaucratic layers to the process -- saddling local trial courts with the responsibility of adjudicating capital appeals and forcing attorneys with no experience with capital cases to take them. 

Proposition 66 would do absolutely nothing to address the root problems with California's death penalty – arbitrariness and unreliability -- the problems which led to Tom Thompson's execution.  Worse, it would further undermine the already tenuous ability of the legal system to ensure that death sentences are fairly and consistently imposed and that innocent men and women are not executed.  If it passes, Proposition 66 will pave the way for more Tom Thompsons.

Proposition 62 provides a simple, commonsense solution to an unfixable death penalty system.  It would finally put an end to this risky, arbitrary and dysfunctional mess.  


For more information click this link to the Yes On 62 campaign.