Some Notes on Today's Phan Decision

Khahn Dinh Phan v. State of Georgia

Case Number S10A0374

Vote: 4-3

For the Majority:    Melton, Nahmias, Hines, and Carley

For the Minority:    Hunstein, Benham, and Thompson

Opinion Authors:     Majority Opinion by Justice Melton

Concurring Opinion by Justice Nahmias

Dissenting Opinion by Justice Thompson

Attorneys: For Mr. Phan: Bruce Harvey and Chris Adams

For the State: Danny Porter

Facts of the Case

Mr. Phan is charged with the murder of Hung Thai and his two year old son and the shooting of Mr. Hung’s wife, Hoangoah Thai. The shooting took place on December 29, 2004. Mr. Hung and the child were killed immediately and Ms. Hoangoah was in a coma for seven weeks. After her release from the hospital, she moved to Vietnam, which is her native country. Detectives interviewed her by phone, and she identified the Appellant as the shooter.

Police arrested Mr. Phan on March 16, 2005, and he was subsequently indicted on September 7, 2005. The State filed a notice of intent to seek the death penalty on October 11, 2005. Mr. Phan is indigent. The Georgia Public Defender Standards Counsel retained Bruce Harvey and Chris Adams to represent him. Mr. Harvey’s has never been paid, and the State stopped paying Mr. Adams on August 30, 2008.

GPDSC has not provided funds for defense counsel to travel to Vietnam to explore mitigation and fact evidence. Vietnam is Mr. Phan’s native country and the country where the surviving victim resides.

Mr. Phan filed a motion to dismiss the charges against him and claimed that his right to speedy trial had been denied. Both motions were premised on budgetary shortfalls and claim that the lack of funding has caused a “systematic breakdown of the public defender system.”

The Case was argued to the Court on March, 2010

Bruce Harvey's Argument on Behalf of Mr. Phan to the Supreme Court

http://multimedia.dailyreportonline.com/2010/03/video-bruce-harvey-argues-at-the-high-court/

Chris Adams's Argument to the Court

http://multimedia.dailyreportonline.com/2010/03/video-christopher-adams-argues-at-the-high-court/

Danny Porter's Argument to the Court

http://multimedia.dailyreportonline.com/2010/03/video-christopher-adams-argues-at-the-high-court/

The Opinion is Here:

http://www.gasupreme.us/sc-op/pdf/s10a0374.pdf

Holding

The Court remanded the case to the trial court with the following Directions:

• To thoroughly assess whether there has been an actual breakdown in the entire public defender system prohibiting Mr. Phan from receiving counsel within the framework of the specific facts in the case
• • The Court is instructed to analyze whether alternate funding sources are available and whether alternate representation can be provided at a lower cost
  • To consider whether the trip to Vietnam is necessary or whether counsel can do phone or “internet interviews”
• If no alternatives are available and a systematic breakdown has occurred, the trial court is instructed to run the case through the Barker v. Wingo test for a speedy trial violation, examining
• • The length of the delay
  • The reason for the delay
  • The Defendant’s assertion of the right to speedy trial
  • The prejudice to the defendant

The Dissent

Justice Thompson, joined by Justices Hunstein and Benham, held that the trial court had already found a systematic breakdown of the public defender system. The Court found already that the trip to Vietnam was necessary and that GPDSC lacks funds to pay for it and that GPDSC will not be able to pay for the defense of Mr. Phan in the near future. The remand with the paint-by-numbers instruction to the trial court is merely redundant

The Concurring Opinion

Justice Nahmias’s opinion is notable. He warned the State and the trial court to do its job on remand quickly, pointing out that Mr. Phan has been in jeopardy for six years and that the interlocutory appeal has taken a year to resolve. More presisely, Namias writes, “after this case is remanded, time will not be on the State’s side, and the trial court and parties should be keenly aware that the difficult and close questions this case raises will need to be addressed with alacrity.”

Analysis

This case is troubling for a number of reasons. For one, it is clear that that State has the funds to seek the death of a murder defendant but that the State does not have the funds for the defense. The fact that we are even in this mess demonstrates the sad state of indigent defense in Georgia. It is terribly broken and dysfunctional. Equally as troubling is the fact that the Court views defense counsel on any case, much less a death penalty case, as fungible. It is troubling that GPDSC could contract with death penalty counsel, allow an attorney client relationship to develop, and pull the rug out from under the man the State is trying to kill by substituting cheaper counsel. 

However, Nahmias may be a swing vote on a subsequent challenge, particularly if this case is not resolved quickly on remand. Also, how could any lawyer adequately represent Mr. Phan without visiting his native country and securing records and interviews with people who have no phone access or internet connection?

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