Law.com's Fulton County Daily Report today carries, "Ga. Capital Case Revives Controversy Over State's Public Defender System." It's written by Janet L. Conley. It's a must-read for those following Georgia's indigent defense crisis.
In an opinion that once again raises concerns about the state's shortage of funds for indigent capital defense, a divided Georgia Supreme Court has sent a death penalty case back to the trial court to determine if a systemic breakdown in the state's public defender system deprived the defendant of counsel.
If the lower court finds that there was a systemic breakdown affecting this particular defendant, an indigent Vietnamese immigrant who allegedly killed another Vietnamese man and his 2-year-old son and severely injured the man's wife in execution-style, back-of-the-head shootings, Justice Harold D. Melton wrote for the majority in the 4-3 decision, then that determination must be factored into an analysis of whether the defendant's speedy trial rights were violated.
In a concurrence, Justice David E. Nahmias appeared to suggest a solution.
"The trial court may take aggressive action to safeguard the public interest and preclude a speedy trial violation ... and the District Attorney has the authority to dismiss the death penalty notice, if that will make adequate funding available to the defense and allow for a speedy trial of this case," Nahmias wrote.
Then Nahmias, a former Northern District of Georgia U.S. Attorney, pointed out the alternative, citing U.S. Supreme Court precedent: "Once a constitutional speedy trial violation is found to exist, however, the remedy will be dismissal of the case."
And:
In 2005, Georgia created a statewide public defender system in place of the county-run systems of the past. The idea was that the state would shoulder the bulk of indigent defense costs, except in counties that opted out of the plan. Gwinnett County opted out and receives only a small stipend from the state for indigent defense in non-capital cases. The state, however, is responsible for 100 percent of the defense funding for indigent capital cases in both opt-in and opt-out counties. Capital cases are handled by the Office of the Georgia Capital Defender.
The distinction between opt-in and opt-out counties is an important one in this case, because the defendant's attorneys, Bruce S. Harvey and Christopher W. Adams, alleged that they were unable to adequately represent their client, Khahn Dinh Phan, because the state could not provide adequate funding for the case.
While the state's capital defender system does not have enough money to fund a death penalty case, Gwinnett County does have enough to fund a non-capital murder trial, Adams said.
Earlier coverage begins with this post. Phan v. The State is available in Adobe .pdf format.
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