Actor Gives Thumbs-Up to Cop Killer’s Screenplay

A convicted cop killer wrote a “wonderfully encouraging” screenplay from California’s death row, actor Ed Asner testified Tuesday.

Asner was called to testify in San Fernando Superior Court on behalf of Kenneth Gay by Gay’s lawyers, who are trying to persuade a jury to sentence Gay to life in prison rather than death.

Gay’s screenplay, “A Children’s Story,” received a $500 prize in 1994, Asner testified. The contest was sponsored by a writers’ workshop affiliated with the American Film Institute.

A theater, television and film actor for nearly 50 years, Asner testified that he enjoyed the screenplay and did not know its author was on death row.

“I was highly impressed,” testified Asner, who referred to the work as a “wonderfully encouraging piece about kids.”

Gay, 42, was convicted in 1985 of murder in the slaying of LAPD Officer Paul Verna, who had stopped the car in which Gay was a passenger for a traffic violation.

Prosecutors said Gay and another passenger, Raynard Cummings, who were implicated in a string of robberies in the weeks before the shooting, were afraid that Verna would arrest them. Prosecutors alleged that Cummings fired first and then passed the gun to Gay, who then shot the officer five more times. Cummings was also convicted of first-degree murder, and both men were sentenced to death.

In 1998, Gay’s death sentence was overturned by the California Supreme Court on the grounds that his lawyer, Daye Shinn, was incompetent. But the court left intact Gay’s guilty verdict.

Though Gay’s guilt is no longer at issue, his new defense team has been trying to argue that he deserves to live because he’s an innocent man who never fired at the officer.

But Los Angeles County Superior Court Judge L. Jeffrey Wiatt has excluded all evidence that would challenge the original jury’s guilty verdict, such as statements allegedly made by Cummings in which he claimed he was the sole shooter of Verna, and the testimony of several eyewitnesses.

Defense attorneys contended the evidence would illuminate the circumstances of the crime, Gay’s role and his culpability--all issues that the law permits the jury to consider when deciding to vote for life or death.

“They’re trying to muzzle the defense,” Deputy Public Defender Kenneth Lezin said recently outside the courtroom. “This is an amazing situation where we can prove that Kenny Gay didn’t do the shooting. . . . They’re trying to kill the defendant without hearing both sides of the story, including confessions by the killer that he did it himself.”

According to legal experts, the fight between the prosecution and the defense over evidence that is potentially exonerating demonstrates a tension in the law.

“The law is clear. If you have a conviction that’s been upheld, it can’t be re-litigated for this jury,” said USC law professor Erwin Chemerinsky.

But the law also permits the penalty-phase jury to consider the defendant’s degree of moral culpability. “There’s no precise line,” Chemerinsky said. “The trial judge has a lot of discretion to determine what type of mitigating evidence to allow in.”

To that end, what defense attorneys are trying to do is “totally legitimate,” said Elisabeth Semel, director of the American Bar Assn.’s Death Penalty Representation Project. “It’s a death sentence. You want to be absolutely sure.”

Asner’s testimony Tuesday was a boost for the defense, according to Gay’s attorney, Mark Zuckman. He said it proves that Gay has talent and lots to contribute to society.

“We conveyed it through an expert of 47 years in the business,” Zuckman said. “He never met Kenny Gay.”