LOS ANGELES - Prosecutors will re-try a case against a man accused of killing a Los Angeles police officer over 30 years ago, but the incoming district attorney will not seek the death penalty again despite the family's wishes for capital punishment.

Kenneth Earl Gay, 62, is charged with murder in the death of Officer Paul Verna in 1983. The California Supreme Court has twice overturned Gay’s death sentence and in February vacated his original conviction, forcing Los Angeles prosecutors to decide if they would pursue the case again during a fraught election cycle and as anti-police sentiments gripped the country.

A judge has ruled against a defence motion that would have excluded information from the previous proceedings — a decision that Gay is expected to appeal. The case returns to court Jan. 14.

In 1983, Verna was a motorcycle officer and had been awarded a medal of valour for trying to rescue children from a burning building. He was married with two young sons, both of whom would later join the LAPD.

In 2016, California voters rejected a ballot measure to abolish capital punishment, but Gov. Gavin Newsom later signed an executive order that placed a moratorium on the death penalty.

"The people of California voted to implement the death penalty, and it’s amazing to me that a few individuals can override the entire state," Verna's oldest son, Bryce, said Monday after a court hearing. “It’s a travesty of justice.”

District Attorney Jackie Lacey lost her re-election bid last month against former San Francisco District Attorney George Gascon in a race to lead the nation’s largest prosecutions office.

Lacey decided to re-try Gay’s case in her final days in office. Her spokesman said Wednesday the decision on whether to seek the death penalty again has not been made, although Gascon — who will be sworn in Monday — pledged during his campaign not to seek the death penalty.

“The Verna family — like all families in death penalty cases — has been forced to relive their trauma over decades of proceedings," Gascon spokesman Maxwell Szabo said, "The death penalty is also irreversible, and 37 years later it appears questions remain as to who pulled the trigger. These reasons, coupled with the exorbitant cost to taxpayers, is why the DA-elect plans to immediately take the death penalty off the table.”

The Los Angeles Police Protective League, which represents LAPD rank-and-file officers, said it hopes Gascon keeps moving forward on the case to "ensure a clear message is sent that the murder of law enforcement officers will not be tolerated in our community.”

“Gay’s heinous crime robbed our city of a police officer who was a proven hero, robbed a wife of her husband and robbed two sons of the chance to know their father," union president Craig Lally said.

The Verna family fears that during a retrial, jurors might not find Gay guilty again — a stronger likelihood in the current political climate than in the 1980s — and that Gay could be released from prison in a matter of months.

Authorities say Raynard Cummings fired one bullet into Verna’s body and Gay then fired five more during a traffic stop in the San Fernando Valley. Both defendants pointed to the other as the shooter during the trial and both were sentenced to death.

The California Supreme Court later wrote that Gay’s attorney, Daye Shinn — who was later disbarred and has since died — among other things, did not introduce crucial evidence that might have persuaded the jury to reach a different verdict.

Gay is incarcerated in the county jail. Monnica Thelen, deputy public defender representing Gay, called the earlier proceedings “a miscarriage of justice” and said her client has been denied his constitutional right to competent counsel from the start.

“Mr. Gay has maintained his innocence and we are hoping that the government will see that this case should not be re-tried,” Thelen said. “The killer, the sole killer of Officer Verna is currently on death row.”

Cummings remains on death row in San Quentin.

Therene Powell, a retired state public defender who represented Gay in his second appeal of the death penalty, previously said several witnesses had described what Cummings looked like, although they believed Gay had fired the final shots.

Others said said Gay was not involved in the shooting, Powell said.

Gay previously apologized to the Verna family. “Mrs. Verna, for what it is worth, I extend my sincere and heartfelt condolences to you and your family, but I didn’t kill the guy,” he said in court in 1985.

News from © The Associated Press, 2020