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  • atlanta mainstream

    Gwinnett judge must assess ‘systemic breakdown’ in defender system

     

    A Gwinnett County judge must decide whether “an actual breakdown in the entire public defender system” has denied an accused murderer a speedy trial, the Georgia Supreme Court ruled today.

    Khanh Dinh Phan was charged in 2005 with the execution-style shooting of a Vietnamese man and his 2-year-old toddler in their Lilburn home. Gwinnett District Attorney Danny Porter filed notice he would seek the death penalty.

    The case has stalled since then because the state’s public defender council, facing funding shortages, has never paid two lawyers hired to represent Phan. Last July, the attorneys asked a judge to dismiss the murder charges because the state had failed to fund the defense, denying his constitutional right to a speedy trial.

    A Gwinnett judge refused to dismiss the murder charges. But, in an opinion released today, the Supreme Court ruled he must reconsider and examine whether there is another way to pay for Phan’s defense. If not, the judge must apply a four-part balancing test laid out by the U.S. Supreme Court in 1972.

    Justice David Nahmias, in a concurring opinion, noted one alternative to dropping murder charges: Gwinnett DA Danny Porter could drop the death-penalty notice. That would reduce the enormous cost of defending a capital case.

    But Porter must move promptly if he chooses that course, Nahmias wrote: “Once a constitutional speedy trial violation is found to exist … the remedy will be dismissal of the case.”

     

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