Friday, February 14, 2020
California Supreme Court:
Court Relies on Factual Findings by Judge Lance Ito, Acting as Referee; Petition Is Decided More Than 21 Years After It Was Filed
By a MetNews Staff Writer
KENNETH EARL GAY
Daye Shinn—the lawyer who represented Manson follower Susan Atkins in her 1970-71 trial for the murder of actress Sharon Tate and others, and who was disbarred in 1992, and died in 2006—so badly botched his representation of a man tried for the murder 36 years ago of a police officer that the conviction must be vacated, the California Supreme Court held yesterday.
The court granted habeas corpus relief to Kenneth Earl Gay, convicted of the June 2, 1983 slaying of Los Angeles police officer Paul Verna. It was the high court’s fourth examination of Gay’s case; it previously affirmed the conviction in an automatic appeal based on a death sentence being imposed and twice granted habeas corpus relief in connection with the sentence.
The opinion recites that Shinn gained his appointment in the case through deception, becoming the defendant’s lawyer by lying that his fees were being subsidized, and persuaded the client to confess, to his detriment, to a series or robberies—which was illuminated in previous opinions. It additionally reveals, however, based on a referee’s 2015 findings, that a shoddy investigation had resulted in potentially exculpatory testimony not being presented, in particular that supporting Gay’s contention that his co-defendant was the sole shooter.
Writing for a unanimous court, Justice Leondra Kruger said Shinn “failed to conduct a timely investigation into available testimony from eyewitnesses who would have exculpated Gay and peace officers who would have inculpated Gay’s co-defendant.”
“Examining Gay’s allegations in light of the extensive hearing record, the referee’s findings, and the trial record, we conclude Gay was denied his constitutional right to the assistance of competent counsel at the guilt phase of the trial, just as at the penalty phase. We grant habeas corpus relief and afford the People the opportunity to retry Gay if they so choose.”
In the course of her opinion, Kruger noted that Shinn did not testify posthumously at a post-conviction hearing.
The referee was then-Los Angeles Superior Court Judge Lance Ito (who presided over O.J. Simpson’s murder trial). Ito is now retired but serving on assignment.
On April 29, 1993, the Supreme Court, in an opinion by then-Justice Marvin Baxter (now retired), affirmed the murder conviction, while reversing robbery related convictions based on instructional error. With respect to Gay’s claim of inadequate representation by Shinn at both the guilt and penalty phases, Baxter said:
“The claim may be raised on appeal. However, when the record does not reflect the reasons for an attorney’s act or omission, and the act or omission may be explained on the basis of acceptable tactics or other reason which brings the conduct within the range of reasonable competence, a claim of ineffective counsel is more appropriately brought by petition for writ of habeas corpus.”
Justice Stanley Mosk (now deceased) dissented, saying he would reverse based on Shinn’s incompetent representation.
While the appeal was pending, Gay did file a petition for a writ of habeas corpus. It was granted by the Supreme Court on Dec. 24, 1998, with Baxter writing for the majority, and with three concurring opinions.
“We are unable to put confidence in a verdict of death rendered by a jury that reaches a death penalty verdict for a defendant represented by an attorney who has defrauded the court in seeking appointment, and whose unethical conduct led directly to the retention of a mental health expert who the attorney agreed would not be called upon to do a thorough assessment of the defendant and who testified that the defendant had a sociopathic personality.”
The jurist continued:
“Confidence in the verdict is further undermined by counsel’s incompetent conduct contributing to the penalty phase jury’s consideration of evidence that the defendant is a serial robber with a sociopathic personality, and by recognition that the jury did not have the opportunity to consider a substantial amount of mitigating evidence that competent counsel would have presented. We conclude there is a reasonable probability that absent counsel’s numerous failings and the conflicts of interest with which he was burdened, a different penalty verdict would have been reached.”
A new penalty phase trial was held, the jury again recommended death, and in 2000, then-Los Angeles Superior Court Judge L. Jeffrey Wiatt (who committed suicide in 2005) reimposed a death sentence.
The high court on March 20, 2008 again granted habeas corpus relief, with Baxter writing for the majority, and two justices authoring concurring opinions. The death sentence was vacated based on evidentiary rulings by Wiatt and his telling the jury that it had been “conclusively proved by the jury in the first case that this defendant did, in fact, shoot and kill Officer Verna.”
Gay’s version was that it was only his codefendant who fired at the officer when he stopped the vehicle in which they were passengers. Verna was on motortcycle patrol in the San Fernando Valley.
At the time of the 2008 decision, there was pending a new habeas corpus petition filed by Gay. It was that petition—filed Dec. 28, 2004—that the Supreme Court acted upon yesterday.
Meanwhile, on May 18, 2011, the Supreme Court ordered Lee Smalley Edmon, the presiding judge of the Los Angeles Superior Court (now a Court of Appeal presiding justice) to pick a judge of her court to act as a referee to sort out the facts relating to Shinn’s defense of Gay. She picked Judge Beverly Reid O’Connell (now deceased) to perform the task, and the Supreme Court appointed her.
Ito Becomes Referee
In light of her confirmation as a judge of the U.S. District Court for the Central District of California, the Supreme Court in 2013 asked then-Presiding Judge David Wesley to recommend a substitute referee; he suggested Ito, who was appointed and held an evidenciary hearing.
Kruger noted in yesterday’s opinion:
“Shinn, who had died in 2006, did not testify at the hearing.”
Ito provided his report on Nov. 23, 2015.
The matter was argued and submitted on Dec. 4 and decided yesterday, 21 years, one month, 20 days from the time the petition was filed.
Testimony Before Ito
Among those testifying before Ito was an investigator hired by Shinn, Douglas Payne.
“By the time Payne conducted his investigation, 19 months had elapsed since the murder, jury selection was well underway, and opening statements were only a month away,” Kruger wrote, remarking:
“Shinn’s apparent decision to wait until the last minute before having his investigator seek out exculpatory eyewitness accounts cannot be reconciled with prevailing norms….Shinn could and should have had his investigator seek out eyewitnesses to determine whether they would testify favorably and to preserve their recollections. We conclude Shinn was deficient for not investigating in a timely fashion the availability of favorable eyewitness testimony.”
Although Ito found that some of Shinn’s tactical decisions had reason behind them, Kruger viewed the facts set forth in his report as pointing to inadequate representation.
She noted the protest of the Office of Attorney General that Gay had previous opportunities to persuade the Supreme Court that the finding of guilt was the product of incompetence of counsel. Kruger responded:
“This is true, but it does not affect our evaluation of the claim he now raises. Gay did present a similar claim on direct appeal, but because he was unable to raise matters outside the record, that claim was necessarily incomplete….And although Gay raised a guilt phase ineffective assistance claim in his first habeas corpus petition, the presentation was likewise incomplete, identifying some but not all of the deficiencies that we address today.”
The case is In re Gay, 2020 S.O.S. 589.
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