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In re Gay12/24/1998
Possibly the most damaging allegation was that, after falsely assuring petitioner the statement could not be used against him at trial, Shinn misled petitioner into making a statement to investigating officers in which petitioner admitted participating in the robberies with which he was charged. Shinn also failed to adequately investigate and discover available mitigating evidence, used an incompetent mental health expert, and had no coherent penalty phase strategy. Petitioner attributes Shinn's selection of Dr. Weaver as his mental health expert to conflict of interest arising out of an allegedly improper "capping" arrangement whereby Dr. McBroom solicited clients for Shinn who then retained Dr. Weaver, for whom McBroom was an assistant.
Petitioner alleges that at the time Shinn represented him, Shinn labored under another clear, but undisclosed, conflict of interest arising out of complaints made against Shinn by a former client to the State Bar, various legislators, and the district attorney regarding Shinn's misappropriation of client funds. The State Bar investigation threatened Shinn's license and livelihood. At the time Shinn was acting on his own behalf in these investigations, he was unable to devote full time to the representation of or adequately defend petitioner.
A. Pre-penalty-phase Conduct.
Petitioner alleges more specifically with regard to the robbery-related counts that Shinn advised him to confess to those charges in a pretrial interview with a police investigator, falsely telling petitioner that Shinn had an agreement that petitioner would confess to those counts and testify for the prosecution or his statement would not be used against him. Shinn did not have an agreement to that effect. At a hearing on the admissibility of the taped statement petitioner made during that interview, the police investigator testified in response to questioning by Shinn that there was no such agreement and that the investigator believed petitioner was truthful in his confession to the robbery-related offenses. In a deposition taken prior to the filing of the petition for writ of habeas corpus, Shinn testified that he did not remember what reason, if any, he had for questioning the investigator in that fashion.
Respondent denies that Shinn induced petitioner to confess to the robberies, and asserts that they would have been proven at the penalty phase in any event. Therefore, respondent asserts, Shinn's conduct in this regard did not cause any prejudice at the penalty phase.
Because this court reversed the robbery-related counts on appeal, we consider only whether Shinn's conduct in these matters was incompetent and, if so, whether consideration of those robberies and attempted robberies, coupled with the impact of Shinn's other failings, was so prejudicial with regard to the penalty verdict as to render the death penalty verdict unreliable. (Strickland v. Washington (1984) 466 U.S. 668.)
B. Murder Count - Guilt Phase.
Petitioner alleges that Shinn inexplicably introduced into evidence exhibit C, a statement by Pamela Cummings accusing petitioner of being the person who fired the first shot at Officer Verna and who then left the car and fired the remaining shots into the officer's body. She declared that he did this while co-defendant Raynard Cummings was asking "what's going on." He also introduced exhibit D, a statement by Raynard Cummings, accusing petitioner of firing all of the shots. In a deposition Shinn could not recall any tactical reason for introducing these exhibits.
Petitioner also alleges that Shinn failed to discover and call four witnesses to whom Cummings had admitted that he killed Officer Ver
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