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In re Gay12/24/1998
court that petitioner's parents would pay Shinn's fees and then advised petitioner to tell the court that his parents could not do so. As will be discussed in more detail below, Shinn's fraudulent representations to petitioner and the court were part of a scheme in which Shinn brought Dr. Fred Weaver, a psychiatrist, and Marcus McBroom, who acted as Weaver's assistant, into the case.
A pretrial statement admitting his complicity in the several robberies with which he was charged was admitted at trial. Shinn had advised petitioner to make the statement to an investigating officer, falsely assuring petitioner that the statement would not be admissible at trial.
During the penalty phase of the trial, Shinn called Dr. Weaver to offer mitigating evidence. Dr. Weaver testified that petitioner was a sociopath with an antisocial personality, but did well in a structured custodial situation. The only other penalty phase witnesses were petitioner's mother, wife, mother-in-law, cousin, and three acquaintances, none of whom had been interviewed by Shinn, who were called to offer evidence of petitioner's good character traits. Although other potentially mitigating penalty phase evidence was readily available, Shinn himself did no investigation of penalty phase evidence and the investigation undertaken by Shinn's investigator, who was given inadequate guidance, failed to discover that evidence. These aspects of Shinn's representation are the principal focus of our inquiry.
II.
Ineffective Counsel Allegations
Although we have concluded that the petition fails to state a prima facie case for relief on ineffective counsel grounds with respect to guilt, prejudice not having been established as to that phase of the trial, we include in our summary those factual allegations of the petition related to the quality of counsel's representation prior to the penalty phase which had an impact on the penalty determination.
Petitioner alleges in substance that Shinn engineered his appointment in the case by lies, misrepresentations, and unethical conduct. Petitioner's retention of Shinn occurred at a time when petitioner was represented by a deputy public defender. Shinn, accompanied by an African-American man in clerical garb, approached petitioner in the county jail. Shinn stated that he was an experienced criminal lawyer and that his companion was a minister who represented a group of African-American businessmen who were interested in paying for petitioner's defense because they were sure he would not otherwise receive a fair trial. The pair urged petitioner to retain Shinn because he needed a "good lawyer," and petitioner did so.
When petitioner appeared for the preliminary hearing, Shinn told petitioner to falsely tell the court that petitioner's parents had given Shinn a $5,000 retainer. Petitioner did so and Shinn was substituted as counsel. Petitioner's mother declares that she did not provide funds to retain Shinn and he did not request a retainer. Neither Shinn nor his investigator ever interviewed petitioner's parents. His mother did not meet with Shinn until the day she testified at the penalty phase of the trial.
After the preliminary hearing Shinn told petitioner to tell the court that he was without funds to pay Shinn and that Shinn should be appointed under the authority of section 987.2.
Prior to the penalty phase, Shinn arranged for petitioner to see Dr. Weaver, a psychiatrist. Weaver's assistant, Dr. McBroom, was the minister who had accompanied Shinn to the jail when Shinn solicited employment.
Petitioner alleges that Shinn's performance at the penalty phase was deficient in numerous ways.
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