Try to recall a day exactly five years ago. Who did you see? What were you doing? For most people, it’s almost impossible to recreate a day so long past. Yet, when Khanh Dinh Phan goes to trial, witnesses will be asked to do exactly that — to describe in precise detail what happened on a day more than five years ago. The testimony based on their hazy memories could determine whether Phan, who faces the death penalty, lives or dies.
Phan is accused of the double murder of Hung Thai and his son. He is also accused of shooting Thai’s wife, who survived. The murders occurred in 2004, and the state of Georgia has still not yet brought Phan to trial to determine his guilt or innocence.
Make no mistake, these are horrible allegations. If Phan is guilty, he should be convicted. If he is innocent, then he should be released. But we won’t know this until a trial has taken place.
The reason Phan has not been tried in more than five years since his arrest is that the state has refused to fund an essential component of the criminal justice system — Phan’s defense counsel. Phan is indigent and, therefore, constitutionally entitled to state-appointed counsel. Yet, the state stopped paying one of Phan’s appointed attorneys in 2008. Phan’s other appointed attorney hasn’t been paid at all. Further, the only known eyewitness, Thai’s wife, fled to Vietnam, and the state has failed to pay for defense counsel to travel to interview this witness, even though her testimony is crucial to the case.
The state claims there’s no money to pay counsel or their expenses. But since Georgia’s new indigent defense system was created in 2005, more than $20 million raised from court fines and fees that was originally intended to fund defense counsel has been siphoned off and used for other purposes.
We both serve as members of the National Right to Counsel Committee, a bipartisan group comprising all facets of the justice system, including judges, police, prosecutors and defense attorneys. Last year, our diverse group issued 22 recommendations, the first and foremost among them being that state legislatures should appropriate adequate funding to provide quality indigent defense services.
The state’s failure to pay Phan’s counsel has crippled the justice system in this case. The trial judge in Gwinnett County acknowledged that there had been a “systemic failure.” Even the district attorney has admitted the defender system is “fatally flawed,” having been quoted: “We all agree that funding has not been provided, and I don’t know if there’s a realistic possibility funding will be provided.” Three Georgia Supreme Court justices also agreed that the “evidence demonstrates a systemic breakdown of the public defender system.”
The trial judge will hold a hearing today to determine whether this systemic failure violates Phan’s right to a speedy trial. While this determination is in the judge’s hands, serious consideration should be given to taking the death penalty off the table in this case.
A concurring opinion by Justice David E. Nahmais in the Georgia Supreme Court also offered the suggestion of prosecuting this as a noncapital case. He noted that the district attorney could proceed with trial (and thus potentially avoid a speedy trial violation) by deciding not to seek the death penalty.
That’s because striking the death penalty will solve the funding problem. While the state is responsible for paying for defense counsel in capital cases like this one, Gwinnett County is responsible for paying for defense counsel in noncapital cases, and apparently has sufficient funds to do so. Transforming this into a noncapital case would take the burden off the state to pay for the defense. At that point, the trial could proceed.
Furthermore, Phan’s case is increasingly infused with doubt as the days pass. Because memories fade, evidence disappears and witnesses vanish, the longer the state waits to try a suspect, generally the more doubt surrounds his conviction. Yet, when the state chooses to impose the ultimate punishment, it must also demand the ultimate reliability in the defendant’s guilt. In this case where the crime occurred more than five years ago, this requisite level of certainty is no longer possible.
Victims, citizens and defendants deserve better justice than the state has provided in Phan’s case. Speedy trials bolster accuracy in criminal convictions. When the state has caused such a tremendous delay in bringing a defendant to trial, reliability of convictions suffers, and the death penalty should no longer be an option.
Norman S. Fletcher was a justice on the Georgia Supreme Court from 1989 through 2005. From 2001 to 2005, he served as chief justice. Larry D. Thompson served as deputy attorney general of the United States from 2001 to 2003 and before that, as U.S. attorney for the Northern District of Georgia. Both serve as members of the Constitution Project’s National Right to Counsel Committee.
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