Judge weighs breakdown of state public defender system

Days and nights haven't gotten any easier for Hoang Thai since his son, daughter-in-law and 2-year-old grandson were gunned down by a friend of the family in 2004.

"Every night I remember them, I cannot forget them," Thai said. "Every day, I don't want to go home."

It doesn't help that the alleged killer, Khanh Dinh Phan, has yet to stand trial in his death penalty case and might even walk free because of the breakdown of the public defender system in Georgia. As Thai sat watching a hearing in the case on Friday, Superior Court Judge Ronnie K. Batchelor heard testimony from the current and former directors of the Georgia Public Defender Standards Council about the chronic underfunding of the state's indigent defense system.

The issue has caused repeated delays in Phan's case, as in other capital cases across the state.

Lawyers for Phan say his case has been languishing for more than five years -- so long that his Constitutional right to a speedy trial has been violated. As a result, they say charges against him should be dropped. Prosecutors disagree, saying that the defense has not offered any proof that Phan's case has been harmed by the delay.

Whatever the judge decides, attorneys for both sides say the ruling will be appealed to the state Supreme Court, where it could impact other death penalty cases in Georgia. The state's highest court considered Phan's case earlier this year, but sent it back to the trial judge to clarify whether other alternatives exist for Phan's defense.

One of the alternatives presented Friday was canceling the contract with private defense attorneys Christopher W. Adams and Bruce Harvey, and allowing salaried employees of the capital defender's office to take over Phan's case. However, state capital defenders already are saddled with as many as nine cases when the maximum caseload they should have is five, according to Gerald Wood, interim director of the Georgia Capital Defender office.

The judge could also order the Gwinnett County Indigent Defense Governing Committee to appoint two defense attorneys at the county's expense. Before the state public defender system got up and running in 2005, the county managed capital cases. David Lipscomb, who chairs Gwinnett's indigent defense committee, testified that he doesn't believe the committee is authorized by law to handle death penalty cases anymore.

However, Lipscomb said he would comply with a judge's order to take on Phan's case. He could pay the lawyers by drawing from a $200,000 reserve fund set aside for older death penalty cases. Only one is still active on appeal.

Phan is accused of shooting Hung Thai, 37, his 2-year-old son and his wife in the head on Dec. 29, 2004. Authorities say that Phan shot them because of a gambling debt. Hung Thai and his son died, but the wife awoke from a seven-week coma and identified Phan as the killer.

Hoang Thai said that his daughter-in-law is partially disabled now, but she is able to care for herself and she remembers everything that happened on the night of the shooting.

Defense attorneys have submitted about $100,000 in legal bills to date. One of Phan's defense attorneys, Bruce Harvey, has not been paid a dime. The state public defender agency sent the other defense attorney, Christopher W. Adams, a $60,000 check last week after failing to pay him for two years. The agency also deposited about $37,000 last week into a registry of the Gwinnett County Superior Court for future defense costs.