Yet when the co-defendants had their cases separated, and Thompson was chosen to be tried first, the state changed its story, according to the legal record. The prosecutor contended that Thompson killed Fleischli alone because he had raped her and wanted to cover it up. To support this theory, the prosecutor produced two new and notoriously unreliable jailhouse informants, keeping the others with contradictory stories away from the courthouse. When he secured that conviction and went on to try Leitch, the prosecutor changed his story again. He went back to his old theory, refrained from calling the two snitches he had used to convict Thompson, and instead called defense witnesses from Thompson's trial whose credibility he had previously tried to impugn.
"Here, little about the trials remained consistent other than the prosecutor's desire to win at any costs," Fletcher wrote in her opinion, which determined that Thompson's right to due process had been violated.
Steven Miller
Betty Fletcher, 86, is a liberal icon and the most powerful woman in Seattle you've never heard of. Sadly for conservatives, she just won't stop working.
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Adding to the controversy was that, by the rules of the court, Fletcher's opinion had actually been issued late. She and other judges had made their ruling after an "en banc" review—a procedure in which a larger panel of judges rehears a case initially decided by just three. Due to "procedural misunderstandings," Fletcher explained in her opinion, concerned judges had missed the deadline to call for this review of Thompson's case. The court went ahead regardless because, Fletcher wrote, "the consequence of our failure to act would be the execution of a person as to whom a grave question exists whether he is innocent."
The Supreme Court called the procedural unorthodoxy "a grave abuse of discretion." By interfering with a planned execution after all appeals had been exhausted, the court said, the 9th Circuit was defying almost 13 years of court review and "the entire legal and moral authority" of the state of California. A short time later, Thompson was executed.
Fletcher's unwavering liberal voice is no longer just part of the chorus on the 9th Circuit. After Carter, Ronald Reagan appointed two prominent conservatives, Kozinski and Diarmuid O'Scannlain. Subsequent presidents, including Clinton, added to the ideological mix by largely appointing either moderates or conservatives. Fletcher's son, by all accounts, stands to the left in this group, slightly to the right of his mother.
"The 9th Circuit is now evenly balanced, with the vast majority floating in the middle," says Rosen. "Moving forward, it will be interesting to see which direction Obama takes it in his appointments." He's got one vacancy already to fill.
In the meantime, Fletcher holds down the fort on the far left with two other Carter holdouts, Reinhardt and Harry Pregerson.
Among the pressing cases before the court are a number related to George W. Bush's war on terror, including consolidated claims stemming from warrantless wiretapping. "These cases all present a critical test of the Bush—and now Obama—administration's sweeping claims of executive authority," says Ben Wizner, an attorney with the American Civil Liberties Union's National Security Project. As Wizner notes, Obama's administration has picked up right where his predecessor left off in these cases, arguing, for instance, that some should be dismissed out of hand in order to avoid airing state secrets.
There's no telling whether Fletcher herself will be in a position to rule on these cases. The court announces which judges will hear a case only a week before oral arguments; assignments are random. But at the interview in her office, she offers some insight into the scrutiny she might give such claims should she sit on a case. "The question is, who examines that it is in fact a state secret?" She says the courts should do so, through private "in camera" proceedings, rather than trust the government's assurances.
She's frank in her suspicion that some of the Bush administration's activities were illegal, hedging her remarks only slightly. "It's apparent, or probably apparent, that laws involving search and listening in on people's private conversation...have been violated," she says.
Just as with NEPA, Fletcher seems prepared to hold the White House accountable. "The law must be followed," she says.
nshapiro@seattleweekly.com
