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Justices scold appeals court for delaying execution

Showing growing impatience with death penalty delays, the Supreme Court sharply rebuked a federal appeals court Wednesday for belatedly blocking a killer's execution in California two days before he was scheduled to die.

The justices, dividing 5-4, found the lower court judges guilty of "grave abuse of discretion." They denied all relief for convicted murderer-rapist Thomas M. Thompson and freed California to press for a new execution date.

In the process, the nation's highest court delivered a stinging lecture to the nation's largest federal appeals tribunal, the San Francisco-based 9th U.S. Circuit Court of Appeals.

Justice Anthony M. Kennedy, a former 9th Circuit judge, scolded the lower-court judges for rejecting Thompson's plea _ and then reversing themselves 53 days later, halting Thompson's execution after almost 13 years of state and federal appeals of his conviction.

The decision was a victory not only for California, but also for the attorneys general of 20 other states, who told the court in a legal brief that if the appeals court's "procedural legerdemain" were allowed, "nothing would ever be final."

Kennedy said the full appeals court of the 9th Circuit held up the announcement of its turnabout and "lay in wait" while the Supreme Court denied Thompson's petition, the state scheduled an execution for Aug. 5, 1997, and Gov. Pete Wilson reviewed the case and denied clemency.

"Then, only two days before Thompson was scheduled to be executed, the court came forward to recall the judgment on which the state, not to mention this court, had placed heavy reliance," Kennedy said.

The full 9th Circuit halted Thompson's execution so it could review his claim of inadequate legal help, which it had previously rejected. It blamed the switch on inattention by one judge and miscommunication between another judge's law clerks.

Replied Kennedy: "It would be the rarest of cases where the negligence of two judges in expressing their views is sufficient grounds to frustrate the interests of a state of some 32-million persons in enforcing a final judgment in its favor."

He said federal courts must respect the interest of the states in "the finality of convictions" once appeals in state courts are exhausted. Finality is vital, he said, to the purposes of the criminal law: to punish the guilty and deter future crime.

"Only with an assurance of real finality can the state execute its moral judgment in a case," Kennedy wrote. "Only with real finality can the victims of crime move forward knowing the moral judgment will be carried out."

In recent years, both Congress and the Supreme Court have severely limited the discretion of federal courts to grant relief to state prisoners.

At the same time, the pace of executions is accelerating. Last year, 74 murderers were executed in the United States, half of them in Texas. It was the highest number of executions in a single year since the Supreme Court reinstated the death penalty in 1976.

In Thompson's case, none of the Supreme Court justices questioned the authority of a federal appeals court to retract an earlier order denying a state prisoner's petition. But Kennedy said such action should be taken only "to avoid a miscarriage of justice."

And after examining the evidence, Kennedy said there was no miscarriage of justice in the conviction and death sentence of Thompson for murdering and raping Ginger Fleischli in Laguna Beach in 1981. He said Thompson's testimony was riddled with lies.

Gregory A. Long, an attorney for Thompson, said he was "extremely disappointed" but would try to convince the 9th Circuit in a second federal appeal that Thompson, 44, was innocent of rape and thus not subject to the death penalty under state law.

He said he would offer the testimony of David Leitch, who was convicted of second-degree murder in Fleischli's slaying, that Fleischli consented to sex with Thompson before she was stabbed five times in the head.

The Supreme Court split along conservative-liberal lines. Kennedy was joined by four other conservatives: Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia and Clarence Thomas.

The more liberal justices _ David Souter, joined by John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer _ dissented. Souter said the court majority improperly toughened the standard of review. He said the 9th Circuit's action was awkward and poorly timed, but a reasonable means of avoiding error in a life-or-death case.

For the 9th Circuit judges, many of whom are more liberal than the high court justices, it was yet another day of rejection at the Supreme Court. Last year the 9th Circuit was upheld in only two of 29 cases _ a dismal batting average of 0.069. So far this year, the circuit has fared slightly better. It has been reversed in seven of nine cases.

The 9th Circuit, which has 28 authorized judgeships, handles federal appeals from Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon and Washington.

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