by Dale Chappell

The Supreme Court of California granted habeas corpus relief, vacating a conviction and death sentence in the 1983 murder of Los Angeles Police Officer Paul Verna, after finding ineffective assistance of counsel (“IAC”) once again, over three decades later.

Kenneth Gay was convicted of first-degree murder and was sentenced to die for his part in the shooting death of Verna. The crime happened in 1983, when Verna stopped a stolen vehicle driven by Pamela Cummings. Gay and Pamela’s husband, Raynard Cummings, were also in the vehicle, and they had just committed a string of robberies. When Verna stepped up to ask the two men for their identification, one of the men shot the officer, then got out and kept shooting until Verna was dead.

The question at trial was who did the shooting. There were witnesses. Lots of them. But none was reliable. The witnesses with the best vantage point were just kids, ages 11 to 14. Their stories varied: some said a light-skinned black man shot Verna, and some said it was a taller dark-skinned black man. The adults’ stories were even less reliable.

The prosecutor’s star witness was Pamela, who was charged in the murders and crime spree, but had her charges reduced in exchange for her testimony at trial.

There were also jailhouse witnesses, both prisoners and guards, most of whom said that Raynard admitted that he was the killer. They said that he bragged about shooting Verna, “Here’s your identification, motherf----r,” they quoted him as saying as he shot him. “He took six of mine,” a sergeant said Raynard told him, and “if I see you all on the streets I hope you are quicker than Verna.” But jailhouse witness statements were not brought to light at trial; they were all brought out at the hearing on Gay’s first habeas petition.

Gay was appointed a public defender, but Daye Shinn, a local lawyer, visited Gay at the jail with a minister, and they both convinced Gay to retain Shinn. When Gay told him he didn’t have any money, they (falsely) told him that a group of black businessmen would pick up the tab. All he had to do was tell the court that his parents were paying Shinn. Believing this, Gay “hired” Shinn to represent him at his murder trial.

Shinn also hid the fact that he was under investigation for fraud by the very district attorney’s office that was prosecuting Gay. In that case, Shinn was found to have spent a client’s money that a judge ordered him to put in an escrow account. The prosecutor would later decline to press charges. [Writer’s note: Shinn was one of the defense lawyers in the Manson murder trials in the 1970s. He would eventually be disbarred for incidents unrelated to Gay’s case. He died in 2006.]

As part of Shinn’s pretrial strategy, he had Gay admit to the 10 robberies he and Raynard committed. Shinn had hoped that by playing to the prosecutor Gay would get a break. That never happened. Instead, the prosecutor used Gay’s admission against him – playing the taped confession for the jury – to secure a death sentence for the murder.

The jury found Gay guilty and handed him a death sentence. His automatic appeals were all denied, and his conviction and death sentence affirmed by the California Supreme Court in 1993. Gay then filed a habeas corpus petition in the Supreme Court, which the Court granted. The Court found that Shinn was ineffective at the death penalty phase for advising him to admit to the robberies that later supported the death sentence. The Court also found “serious misconduct in the very foundation of the attorney-client relationship,” that is, Shinn “used fraudulent means to induce Gay to retain him as his attorney,” which affected the trust that Gay should have had in his lawyer, the Court said.

Gay, however, was again sentenced to death in 2000, and while his automatic appeal was pending, he filed his second habeas petition in the Supreme Court. This time, he claimed that Shinn was ineffective during the guilt phase of his case (the trial). [Writer’s note: Typically, more than one habeas petition cannot be filed to attack a sentence and subsequently a conviction. However, Gay’s first petition was filed before that rule went into effect, so the bar on successive petitions did not apply to him.]

The standard for IAC claims is found in the U.S. Supreme Court’s Strickland v. Washington, 466 U.S. 558 (1984), decision instructing that IAC is found where (1) counsel’s conduct was outside the “professional norms” and (2) that absent counsel’s errors the outcome of the proceeding would have been different (known as the “prejudice” showing). Strickland also explained that counsel’s strategic choices are “virtually unchallengeable” but only if counsel made a “thorough investigation of law and facts.”

Shinn’s advice for Gay to admit to the robberies prejudiced him for three reason, the Court said. First, Shinn acted as a “second prosecutor by creating evidence” that led to Gay’s conviction for the robberies. Second, the admission “portrayed petitioner as an admitted serial robber who killed a police officer to avoid arrest.” Third, the key witness to the robberies was Pamela, who had an interest to protect her husband and implicate Gay. Shinn could have used this to impeach Pamela’s testimony at trial, the Court observed.

But there was more. Shinn’s failure to investigate the witnesses was not a strategy immune from scrutiny, the Court said. His failure to call witnesses that could have shed doubt on Gay as the shooter infected the trial. Not only did Shinn not investigate or call the witnesses who identified Raynard as the shooter, he never called the sheriff’s deputies who heard Cummings admit to shooting Verna.

“Gay was charged with the murder of a police officer,” the Court noted. “In such as case, peace officers would have had every incentive to ensure that those responsible were convicted.” The Court concluded that exculpatory testimony from the officers “would have been some of the most persuasive evidence a defense attorney could present.”

A totality of the circumstances, including the earlier fraud on the court by Shinn that rendered the death sentence invalid in the first habeas petition, plus the conflict of interest Shinn had by representing Gay when he was under investigation by the same prosecutor’s office, also played a part in the Supreme Court granting Gay habeas relief once again. “From the very outset, Shinn showed himself willing to deceive Gay (and the court) to further his own personal ends,” the Court concluded.

“It is not inconceivable that even with the assistance of competent counsel, the jury might still have voted for guilt,” the Court noted. But that is not the test.”

Accordingly, the Court granted Gay’s habeas petition and vacated his conviction for first-degree murder. See: In re Gay, 457 P.3d 502 (Cal. 2020).  

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