By Nancy Martinez
The Los Angeles Superior Court overturned the death row conviction of Kenneth Earl Gay on the basis that Gay did not receive competent assistance during the initial trial.
Kenneth Earl Gay was convicted of first-degree murder of Paul Verna, an LA Police Officer, in 1983. The Los Angeles Superior Court has overturned Gay’s conviction on the grounds that Gay had ineffective assistance of counsel that was unable to conduct meaningful investigations.
On June 2, 1983, Officer Verna conducted a traffic stop in a residential area. The driver of the vehicle was Pamela Cummings, the front seat passenger was Kenneth Early Gay, and the back seat passenger was Pamela’s husband, Raynard Cummings. Unbeknownst to Officer Verna, the vehicle Pamela was driving, was a stolen vehicle. After retrieving a check-cashing card as a form of identification from Pamela, Officer Verna filed a field interrogation card and then returned to the vehicle to retrieve identification from the other two passengers. Pamela had since exited the vehicle and was standing near the sidewalk with the vehicle in between her and Officer Verna, thus unable to clearly see into the car as the events unfolded.
As Officer Verna leaned into the vehicle to ask for identification, he was shot once and attempted to walk towards his motorcycle. The shooter exited the vehicle and shot Officer Verna five more times while Officer Verna fell to the ground.
Witness testimonies vary on who was the initial shooter and who continued to deliver the five preceding shots due to contradicting physical descriptions of the suspects. Kenneth Earl Gay is a light-skinned biracial African-American and Caucasian man, while Raynard Cummings is a darker-skinned African American standing at 6’6’’, six inches taller than Gay.
Along with witnesses who were near the crime scene and witnessed the shooting, jailhouse witnesses also testified on what conversations they had with both Gay and Cummings about the shooting. Deputy Sheriffs who overheard conversations between inmates also testified.
Gay was later granted relief to his death row sentence through a writ of habeas corpus claim due to the “deficient performance” on behalf of his defense counsel, Daye Shinn. The courts found that there was counsel misconduct by the “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.”
In 2002, after the penalty phase retrial, Gay was again sentenced to death but this sentence was later overruled on the appeal that the court had prevented the defense to present evidence that would have allowed the jury to consider that Gay was not the shooter.
In 2004, Gay filed the current writ of habeas corpus on the basis that Gay received ineffective assistance from Daye Shinn, which is a violation of his Sixth Amendment right to receive the assistance of counsel. The court has now found that Shinn was “deficient” in every regard to Gay’s case by being fraudulent, lacking professionalism, having Gay to confess to robberies, and failing to conduct any meaningful investigations or providing witnesses that could have strengthen Gay’s case.
Witnesses that identified a male of physical attributions to that of Cummings as the shooter, were never interviewed by the defense because defense investigations for potential witnesses began months after the shooting causing little time to find any witnesses. This led to Shinn’s dependence on the prosecutor’s witness testimonies that contradicted with other prosecutor witness testimonies. The courts agree that a competent counsel would have not failed to contact witnesses that may have helped their case.
Gay also argued that Shinn should have called more sheriff deputies as witnesses that may have overheard Cummings confess to the crime. Two deputies were considered by the court and found that the testimonies of these officers “would have been helpful” to the defense.
Shinn was actively being investigated by the district attorney’s office for other fraudulent cases. This may have resulted in a claim of interest conflicts between the counsel and the defendant, but the court has found that though they cannot establish a link between the investigation of Shinn and deficiencies to Gay’s case, the court concluded that Gay did not “receive the benefit of the assistance of competent counsel loyal foremost to his interest”.
All of the deficiencies by counsel Shinn contributed to the court’s finding that the jury’s verdict may have resulted in a different outcome if Gay had effective counsel. Though it cannot be assured that a not-guilty verdict would have been reached, the court’s faith in the jury determinations was undermined through the evidence of incompetent counsel.
On Feb. 13, 2020, 37 years after Officer Paul Verna was killed during a routine traffic stop, the Los Angeles Superior Court granted relief and vacated the judgment against Kenneth Earl Gay based upon his habeas corpus claim of receiving ineffective counsel by Daye Shinn.