Khahn Dinh Phan, Accused Killer, Could Go Free If Public Defender Problems Persist, Says Georgia Court

The case of a Georgia man who has spent nearly seven years in jail waiting for his death-penalty trial to begin is an "egregious" example of the state's failure to provide sufficient funding for indigent defense, a former Georgia Supreme Court chief justice said Thursday.

"It is egregious when seven years go by and you still haven't been tried," Norman S. Fletcher, who retired as chief justice of the Georgia Supreme Court in 2005, said in an interview with The Huffington Post. "The state has not lived up to its obligations."

On Feb. 27, the Georgia Supreme Court rejected an appeal by Khahn Dinh Phan, charged with two counts of murder, to have his case dismissed because the state had violated his constitutional right to a speedy trial. Phan has been jailed in Gwinnett County, Ga., about 30 miles northeast of Atlanta, since his arrest in March 2005.

While the court denied the motion, Chief Justice Carol Hunstein noted in the decision that further delay in the case could well "tip the scales" in Phan's favor and lead to his release. "We warn the clock is still ticking," Hunstein wrote.

The court found that the delay in Phan's case was largely attributable to Georgia's failure to provide sufficient funds for him to mount a defense in the death penalty case, part of a system-wide shortage of funding statewide.

"This case is an object lesson in the perils of such underfunding," Hunstein wrote. "The fact that the dismissal of murder charges has had to be legitimately considered for reasons so far removed from the accused's guilt or innocence underscores the stakes involved."

The case began with the execution-style murders of Hung Thai, 37, and his 2-year-old son, who were each shot in the head in their home in Lilburn, a small town northeast of Atlanta. Thai's wife, Hoanggoanh Ta, also was shot in the head, but survived.

Ta spent seven weeks in a coma. When she woke up, she checked out of the hospital and flew back to Vietnam, her home country. From Vietnam, she provided an account of the crime identifying Phan as the shooter and indicating that the motive was payment of a gambling debt. She remains in Vietnam.

After the identification, Phan was arrested and charged with two counts of capital murder. Danny Porter, the Gwinnett County district attorney, announced that he would seek the death penalty in the case.

Chris Adams, then the director of the Georgia Capital Defenders Office, and Bruce Harvey, a private attorney, were authorized by the state to represent Phan. But as they prepared for trial, they ran into insurmountable funding problems, Adams said.

A crucial sticking point involved a 10-day investigatory trip to Vietnam to interview Ta and to gather mitigating evidence about Phan's background in the event that he was convicted and the jury charged with deciding whether or not he should die for the crimes.

The state offered some money for the trip, but it was much less than what was needed, Adams said. After he refused the money, and filed motions seeking to compel the state to fully fund the trip, the economic crisis hit with full force, and all funds for travel were suspended by the state.

"It was wholly inadequate to get the job done for my client," he said. "I think they knew it was inadequate."

The state also declined to provide the defense money to retain an expert witness on head injuries and memory. Victims of gunshot wounds to the head often suffer severe memory loss, making such an expert a potentially critical for the defense.

Adams blames the long delay in bringing the case to trial on the state's refusal to fund the investigative trip and the expert witness. Porter, the district attorney, disagreed, saying that the delay in the case was entirely Adams' fault.

"Adams was paid and had the money to travel, but refused unless he got everything he wanted -- then the funding ran out," Porter said in an email. "So yes, I hold him responsible."

Porter did, however, acknowledge the state's overall problem funding death penalty defenses. "The failure to adequately fund pervades all death cases in Georgia," he said.

Adams called the contention that he was wholly responsible for the delay in the trial "ridiculous." "We did everything we were supposed to do," he said. "I don't think it can be said in any way that the defense was dragging their feet."

Funds for travel or the experts have yet to be provided, almost seven years after the arrest of Phan, who has spent the time waiting for trial in the Gwinnett County jail. Despite his attorneys' long history with the case, and their success litigating the issue of funding and the trial delay up to the Georgia Supreme Court, both Adams and Harvey have been removed as Phan's counsel under the order of the trial judge.

Their removal from the case will reduce the cost of Phan's defense to the state, Hunstein wrote in her opinion authorizing the change, because the two attorneys, previously contracted by the state, will be replaced by public defenders on salary.

Fletcher, the former Georgia chief justice, said removing Phan's lawyers this far into the case was unusual and unfortunate. "That is very troubling," he said. "It hardly passes the smell test."

Phan may still appeal the decision removing Adams and Harvey from the case, said Adams, but such a motion would have little chance for success.

He called their removal from the case for financial reasons deeply disturbing, as he had pledged to Phan in 2005 that he would not abandon him as the state sought execution.

"Mr. Phan has placed all of his trust in us, and we have worked very, very hard to earn his trust, and now we've been tossed off the case," he said. "As a practicing lawyer for 20 years, this has been the single most disappointing event in my life in the law."

Still, the Phan case may help spur broader change in Georgia's public defender system, Fletcher said. The state legislature recently passed a law authorizing a ballot measure this fall that would for the first time create a constitutional amendment ensuring that fees previously designed to fund the defender system cannot be diverted to other budgetary needs.

"I think we're turning the corner on some things," Fletcher said.