On July 6, 2009, the trial court in this capital murder case denied both Khahn Dinh Phan’s motion to dismiss the charges against him and his motion asserting a speedy trial violation. As the basis for these motions, Phan maintains that, pursuant to Vermont v. Brillon , __U.S.__ III C 129 SC 1283, 173 LE2d 231 2009, there has been a “systemic breakdown in the public defender system” caused by a lack of funding. In its order denying Phan’s motions, the trial court requests direction from this Court, finding that the law that it must apply is unclear. With this request in mind, we remand this case with direction and vacate the trial court’s order because 1 it fails to fully consider whether, with regard to the individualized facts of this specific case, the entire public defender system has broken down such that no publicly-funded and constitutionally-effective attorney from any source was available to represent Phan, see Weis v. State , __Ga.__ Case No. S09A1591, decided March 25, 2010 and 2 it does not consider Phan’s speedy trial claim within the required parameters of Barker v. Wingo , 407 U.S. 514 92 SC 2182, 33 LE2d 101 1972. See Vermont v. Brillon , supra. In a nutshell, the record shows that, on December 29, 2004, Hung Thai and his two-year-old son were murdered “execution style” by gunshots to the back of the head. Hung’s wife, Hoangoah Thai, was also shot in this manner, but she survived. After waking up from a seven-week coma, Hoangoah left for Vietnam, her family’s native country. When interviewed by Georgia detectives over the telephone, Hoangoah identified Phan as the person responsible for the shootings. Phan was arrested on March 16, 2005, and he was indicted by the Gwinnett County grand jury on September 7, 2005. On October 11, 2005, the State filed a notice of intent to seek the death penalty. Because Phan is indigent, the Georgia Public Defender Standards Counsel GPDSC retained attorneys Bruce Harvey and Christopher W. Adams to represent Phan. Although Adams has been paid through August 30, 2008, his subsequent bills have not been paid, and Harvey apparently has not been paid for his services. In 2006, defense counsel petitioned the GPDSC for funds to travel to Vietnam to investigate Phan’s case for both facts and mitigation evidence. Phan is a native of Vietnam, and all of his family remains there. The GPDSC has not provided funds for this trip. Based on this lack of funding, Phan filed a motion to dismiss the charges against him, and he also claimed that his right to a speedy trial had been violated. Both motions are based on the notion that budgetary shortfalls and the lack of funding have caused a systemic breakdown of the public defender system.
To adequately address Phan’s contentions, the trial court must first thoroughly assess whether there has been an actual breakdown in the entire public defender system prohibiting Phan from receiving counsel within the framework of the facts of this specific case. The trial court’s assessment should include an analysis of alternative sources of funding and alternative representation if necessary under the circumstances of this particular case. As illustration, in our recent opinion in Weis , supra, similar claims were raised that there had been a systemic breakdown of the public defender system. We found, however, that there had been no such breakdown, as the trial court in that case found alternative publicly-funded representation for the defendant. We explained: While the constitutional speedy trial provisions primarily safeguard the defendant’s rights, they also recognize the public’s interest-including the interest of crime victims-in the resolution of criminal cases without unnecessary delay, and the prosecutor and the trial court have a responsibility to protect those interests. See Barker v. Wingo , supra, 407 U.S. at 519 II “The right to a speedy trial is generically different from any of the other rights enshrined in the Constitution for the protection of the accused. In addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused”; id. at 527 III “Society has a particular interest in bringing swift prosecutions, and society’s representatives are the ones who should protect that interest”. See also Zedner v. United States , 547 U.S. 489 III A 126 SC 1976, 164 LE2d 749 2006 discussing the public interest in a speedy trial in the context of the federal Speedy Trial Act. In this regard, the trial court took appropriate action by appointing . . . public defenders to represent Weis rather than his originally appointed attorneys. Id. at __ 1 b. Therefore, the trial court in this case must determine whether any alternatives are available to ensure Phan’s constitutionally-effective representation, including, but not limited to, the possibility of appointing alternative counsel. Id. See also, Georgia Public Defender Standards Council v. State , 285 Ga. 169 675 SE2d 25 2009 trial court properly ordered GPDSC to fund capital case. The trial court may also want to consider alternatives to travel to Vietnam, such as phone or internet interviews of witnesses. By doing so, the trial court may safeguard both the public interest as well as Phan’s rights. Weis , supra; cf. State v. Lattimore , Case No. S10A0172 decided June 7, 2010.
