Tuesday, February 25, 2020


EBaY Win Vacates Murder Conviction

On February 13, 2020, the California Supreme Court granted habeas corpus relief to Kenneth Earl Gay, vacating his first-degree murder conviction entered nearly four decades ago. Following two prior reversals of Gay’s death sentence, the court determined that the defense counsel’s performance undermined the reliability of the jury’s guilty verdict altogether.

The decision follows an amicus brief and oral argument from the Ethics Bureau at Yale (EBaY). In the fall of 2016, EBaY authored an amicus brief arguing that defense counsel’s failure to disclose — to both his client and the court — that he was under criminal investigation by the same office prosecuting Gay amounted a violation of fiduciary duty. Moreover, it asserted that the seriousness of the conflict in Gay’s case threatened to undermine confidence in the judicial system, the integrity of the adversarial process, and defendants’ right to conflict-free counsel. Sarah Weiner ’17, Victoria Pasculli ’17, William Kukin ’17, and Shelle Shimizu ’17 assisted in drafting the brief.

The court held that Gay was denied his constitutional right to the assistance of competent counsel. The court had previously found that defense counsel violated the “very foundation of the attorney-client relationship” by fraudulently inducing his retention. In its most recent opinion, the Court went further, concluding that defense counsel “was deficient in every regard.” Associate Justice of the Supreme Court of California Leondra Kruger ’01 authored the court’s unanimous opinion.

Upon a highly unusual invitation from the court, Clinic Director and George W. and Sadella D. Crawford Visiting Lecturer in Law Lawrence Fox participated in oral argument on December 4, 2019.

“This was the first time one of our amicus briefs gave us an opportunity to present oral argument before the tribunal,” Fox said.

With brief notice, the clinic and several Law School professors, including William O. Douglas Clinical Professor Emeritus of Law Stephen Wizner and then-Visiting Professor Rory Little ’82, worked to prepare Fox for his argument.

The group participated in a moot oral argument, and students discussed the case during their weekly clinic meeting. This month, the clinic rejoiced when the decision was published.

“The quality of the EBaY students’ work both in the original drafting and the preparation for oral argument demonstrated the talent that our students show me each and every week,” Fox said. “The same has been true for the dozens of EBaY students I have worked with over nearly 10 years.”

The clinic has written amicus brief about legal ethics issues in numerous capital cases. During the 2019–2020 academic year alone, it has helped to draft amicus briefs in Montgomery v. United States, Missouri v. Johnson, and Abdur’Rahman v. Tennessee.

“The opinion was published just as I was editing an amicus brief for a different capital case,” said EBaY student director Jordan Dannenberg ’21. “It was a deeply motivating reminder of the importance of legal ethics and the meaningfulness of our clinic’s work. My clinic partner and I cheered and then got right back to work.”

The Ethics Bureau at Yale advises lawyers on how to proceed when faced with violations of the Model Rules of Professional Conduct and other ethical dilemmas. Students draft amicus briefs in cases involving professional responsibility; help people with ineffective assistance of counsel claims; and offer ethics advice to nonprofit organizations. A weekly class on professional responsibility is also part of the bureau. The Ethics Bureau is taught by Lawrence Fox, the George W. Crawford Visiting Lecturer in Law and Visiting Professor of Law Susan Martyn.