Judge to rule on Gwinnett death penalty case
Khahn Dinh Phan was charged five years ago with murder in the deaths of a Lilburn man and his toddler son, both of whom were shot in the back of the head.
Five years, and still no trial. As in other high-profile death-penalty cases, Phan's trial has been delayed continually because the state can't afford to pay for his defense.
On Friday, a Gwinnett County judge is expected to rule on whether the state has violated Phan's constitutional right to a speedy trial. If he rules for Phan, and if that ruling is upheld on appeal, Phan would walk on a double-murder charge.
Attorneys for both sides say they expect the decision will be appealed to the state Supreme Court, where it could affect other death-penalty cases pending in Georgia.
Earlier in the year, the state's highest court directed Superior Court Judge Ronnie K. Batchelor to determine whether a breakdown in the public defender system had prevented a speedy trial for Phan. It also asked Batchelor to consider alternative sources of funding, if any, for Phan's defense.
At issue is the chronic underfunding of the state's indigent defense system. Defense attorneys for Phan say they have submitted about $100,000 in legal bills to date. But the state defender agency only made a partial payment last week to one of Phan's defense attorneys, Christopher W. Adams, after failing to pay him for two years. Adams declined to say how much he was paid.
The other attorney, Bruce Harvey, has not been paid at all, according to court records.
The governor's office also has denied a request for funds so Phan's attorneys could travel to his native Vietnam to interview witnesses.
Meanwhile, the case has languished. Adams says it will be impossible to get a fair trial for his client now that so much time has gone by, because witnesses will have disappeared and memories will have faded.
District Attorney Danny Porter disagreed, arguing that the defense has not offered any proof that Phan's case has been harmed by the delay.
Phan is accused of shooting Hung Thai, 37, his 2-year-old son and his wife on Dec. 29, 2004. Authorities say Phan shot the family because of a gambling debt. Hung Thai and son died, but the wife awoke from a seven-week coma and identified Phan as the killer.
"I look back on it and wonder why in the world I stayed on this case, because it's been nothing but a financial albatross to my law practice," said Adams. "But as with all my capital clients, I looked my client in the eye and told him he could trust me that I was going to give him my best effort."
Prosecutors say that the funding problem is of Adams' own making. They say poor bookkeeping on the part of the Georgia Public Defender Standards Council is as much to blame as inadequate funding from state lawmakers. And Adams headed the council's capital defender program in 2007 just before he left to go into private practice, taking Phan's case with him on contract.
"The people that created the capital defender program are the ones saying, ‘We don't have any money, but you need to hold the state and prosecutors responsible for it,'" said Deputy Chief Assistant District Attorney Lisa Jones. "It's very frustrating. They get to outspend their budget and the defendants get to walk? Where is the justice in that?"
Mack Crawford, the former director of the state defender system, has been subpoenaed to testify about the agency's budget problems at the hearing Friday. Crawford, who was sworn in this week as a Superior Court judge for the Griffin Judicial Circuit, declined to comment on the case.
