State can't afford to defend Gwinnett capital murder case

“You don’t have to have the death penalty in Georgia, but if you have it, the Constitution requires you must provide the defense the basic tools to prepare,” said Chris Adams, one of Phan’s attorneys. “Georgia has failed to provide Mr. Phan basic resources for several years, and there is no end in sight.”

Gwinnett District Attorney Danny Porter said he has no beef with the defense attorneys’ request for funding, only the remedy the lawyers are seeking. The prosecution is not to blame for the funding problems, so the death-penalty case should survive the challenge, he said.

“I think this appeal presents the state’s obligations of funding the defense of a capital case about as narrowly and as squarely as the court has faced in any other case,” Porter said. “The state voluntarily took on this obligation of the public defender system. It’s up to them to adequately fund it.”

Capital cases in Georgia with two private attorneys typically cost about $150,000 to $200,000, which covers attorney and expert witness fees. Phan’s attorneys are also asking for funds for overseas travel and interpreters so they can interview his relatives and witnesses in their client’s homeland.

During a pre-trial hearing, Porter suggested one way to force the issue was to find the head of the defender council in contempt. “I don’t know how Governor [Sonny] Perdue feels about his employee going to jail,” Porter said.

Mack Crawford, executive director of the Georgia Public Defender Standards Council, declined comment.

Gwinnett authorities say that on Dec. 29, 2004, Phan broke into the home of Hung Thai, 37, and killed Thai and his son, Hugh, because of a gambling debt. Phan is also accused of shooting Thai’s wife, Hoangoah Ta. She survived and has identified Phan as the alleged shooter.

Phan has pleaded not guilty. He is being held without bond.

After he was indicted in 2005, the state defender council provided Phan, 43, with two lawyers, Adams and Bruce Harvey. But the council has only paid Adams for his work through August of 2008 and has yet to give Harvey a contract so he can be paid, according to court testimony.

Georgia’s defender system began operating in 2005, replacing county-run systems found incapable of providing an adequate defense of the poor. The system is funded through surcharges on criminal fines and bonds and add-ons to court filings.

Yet since the indigent defense fund began collecting these fees, the Legislature has not transferred all of the collections to pay for the defender system, instead using some of the money to fund other programs. Since fiscal year 2005, the defender system has been shortchanged a projected $21.8 million in collections, according to council records.

To make matters worse, the council had asked lawmakers this past session for $1.1 million in emergency funds for a number of death-penalty cases that were stalled because there was no money for the defense. Although the House put the money into the budget, the Senate cut it out.

In the meantime, the council has shifted some money in its budget to get a number of capital cases moving toward trial.

One of these capital cases involves Jamie Weis, accused of killing an woman in her Pike County home during a 2006 burglary. In July, Weis’ lawyers were told they would get $115,000 for their fees and experts for an Oct. 5 trial. This money was made available after the defense had not been paid for almost two years, court records show.

“It is contrary to every notion of fairness, due process and the proper working of an adversary system for one side to be held down until right before trial and then suddenly given some funding and told to make up in two or three months for three years,” says a legal brief filed on Weis’ behalf last week before the state Supreme Court.

Weis’ appeal contends he has been denied the right to a speedy trial because of a lack of funding. It cites a speedy trial ruling the U.S. Supreme Court handed down in March in a Vermont case. By a 7-2 vote, the high court rejected Michael Brillon’s motion to overturn his domestic assault and habitual violator convictions because it took nearly three years to get his case to trial.

Writing for the majority, Justice Ruth Bader Ginsburg attributed the delays to Brillon, who went through six lawyers, some of whom he threatened and fired. Ginsburg indicated the outcome could have been different if the delay had been caused by a “systemic breakdown in the public defender system.” Such a delay would have been charged to the state, she wrote.

In Phan’s case in Gwinnett, his defense team needs money to interview the defendant’s relatives, teachers and friends in Vietnam, where Phan lived until 1982 when he fled to a refugee camp in the Philippines.

The defense lawyers say the overseas investigative trip is needed to help them prepare for trial, especially to present mitigation evidence on Phan’s behalf if he is convicted and the trial moves to the penalty phase. In a number of rulings, the U.S. Supreme Court has overturned death sentences when defense counsel did not conduct an adequate investigation or present a robust mitigation case.

In an order signed last month, Gwinnett County Superior Court Judge Ronnie Batchelor said the investigative trip was necessary, and the defender council’s failure to fund it “denies counsel the basic tools to build a defense.” Batchelor also found there was a “systemic failure” by the council to allow Phan’s defense team “to mount an effective defense as required by the Georgia and U.S. Constitutions.”

Batchelor denied the defense’s request to strike the death penalty or dismiss the murder charges. In a July order, he said he believed his authority to impose such sanctions was unclear under Georgia law.

Batchelor asked the state Supreme Court to hear the appeal so he would have the proper guidance on how to proceed.

“Somebody’s got to do something,” Porter said in an interview last week. “Someone’s got to break this impasse.”