"Court sends death-penalty case back to Gwinnett," is the title of Bill Rankin's report in today's Atlanta Journal-Constitution.
The Georgia Supreme Court on Monday declined to bar Gwinnett County prosecutors from seeking the death penalty because the state had been unable to pay lawyers representing the accused.
The court, in a 4-3 decision, returned the case to a Gwinnett judge, instructing him to determine whether an actual breakdown in the public defender system violated Khan Dinh Phan's right to a speedy trial.
Justice David Nahmias, who joined the majority but wrote separately, warned prosecutors to move the case as quickly as possible.
"Time will not be on the state's side, and the trial court and the parties should be keenly aware that the difficult and close questions this case raises will need to be addressed with alacrity," Nahmias wrote. If a speedy trial violation is found to exist, he noted, the remedy will be the dismissal of all charges.
Phan, who has been waiting to go to trial for more than five years, is charged with the Dec. 29, 2004, killings of 37-year-old Hung Thai and his 2-year-old son, Hugh. Authorities say Phan broke into the Thais' Lilburn home and shot the family because of a gambling debt.
Phan was appointed two lawyers, Chris Adams and Bruce Harvey. Adams was paid through August 2008 and Harvey has not been paid. During the past few years, the state public defender agency, charged by law with funding the defense of death cases, has struggled financially.
In dissent, Justice Hugh Thompson noted that the governor's office had denied a request for funds so Phan's attorneys could travel to the defendant's homeland in Vietnam to interview witnesses and that the Legislature had declined requests by the state defender agency for more funds for capital cases.
There already has been a "systemic failure" of the state to provide the basic resources for Phan to mount an effective defense, Thompson wrote.
The AP filing is, "Top Ga. court allows capital case to go forward," by Greg Bluestein.
A divided Georgia Supreme Court issued new orders Monday for how judges should assess speedy trial complaints amid a growing number of lawsuits questioning whether the cash-strapped public defender system can afford to represent poor defendants in costly capital cases.
The court's 4-3 ruling Monday also declined to block state prosecutors from pursuing the death penalty against a defendant, Khanh Dinh Phan, who has become a focal point for the debate because he claims his right to a speedy trial has been violated because he's waited in jail for more than five years while the state struggles to pay his defense bills.
And:
Both prosecutors and Phan's appellate attorneys agreed there had been a breakdown in the public defender system because of the funding problems. And a Gwinnett County trial judge ruled there was a "systemic failure" in the public defender system, but said it was unclear whether prosecutors could still pursue the death penalty.
The Georgia Supreme Court's ruling Monday attempts to provide more clarity with how judges should handle the complaints, which could rise as Georgia's tax collections continue to sputter.
It sent Phan's case back to a trial judge with instructions that it must review whether there "has been an actual breakdown in the entire public defender system prohibiting Phan from receiving counsel."
The state's top court had ruled in March there was no such breakdown in a similar case involving death penalty defendant Jamie Ryan Weis, who waited in jail for more than two years without an attorney.
If a trial court has determined the system is so broken that no qualified public defender can take the case, it should next conduct a four-part test established by a 1972 U.S. Supreme Court ruling to determine whether the speedy trial rights have been violated, the ruling ordered.
That test would involve balancing the length of the delay, the reasons for it, the timing of the complaint and the damage it has done to the case.
The Georgia Supreme Court order in Phan v. The State is via Leagle.com. Earlier coverage of Georgia's indigent defense crisis begins with this post; related posts are in the indigent defense index.
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