In Phan, the defendant in a death penalty case filed a motion to dismiss and a motion based upon the violation of his right to a speedy trial.  The defendant asserted that there has been a systematic breakdown in the public defender system caused by lack of funding which has led to a violation of his rights.      

    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.    

   “There was a time before the funding problems that we had a public defender system in place that was the envy of the nation.” Attorney Bruce Harvey.     

    In 2005 the state of Georgia created GPDSC to oversee indigent defense statewide.  The purpose was to create a central state system to replace the county run systems that had been challenged for allegedly providing inadequate representation. The Office of the Capital Defender handles death penalty cases.  The state through GPDSC is responsible for funding death penalty cases.        GPDSC has had financial problems since it began leading to several lawsuits claiming that defendant’s have had their constitutional rights violated due to inadequate representation resulting from inadequate funding.  Supporters of the agency point out that more than $23 million collected through court fees which were designed to fund GPDSC has been redirected to Georgia’s General Fund and used for purposes other than indigent defense. Phan appealed the denial of his motions.  The trial court presented the issue as follows : 

Whether the Gwinnett County Superior Court has the authority to dismiss all charges or to dismiss the death notice when an indigent defendant facing the death penalty is being denied basic and minimum resources to prepare his defense in what amounts to a systematic breakdown of the defense?

      The trial court found that “by a systematic failure GPDSC is denying Mr. Phan the basic resources to mount an effective defense as required by the Georgia and United States Constitutions.” The order states that “the District Attorney agrees that GPDSC is systematically failing to provide Mr. Phan the tools for effective assistance of counsel.”          

    On appeal, the Georgia Supreme Court held that “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 Phan case has been sent back to the trial judge to answer that question. If there was a breakdown the judge will have to determine if it caused a violation of Phan’s constitutional right to a speedy trial.      In another death penalty case, Weis v. State, S09A1951, the defendant also claimed a breakdown in the public defender system.  Weis claimed his speedy trial rights were violated due to the delay when his court appointed lawyers were removed from the case because the state ran out of money to pay them.  Public defenders who work on a set salary were put on the case.  Fifteen months later with the promise of funding Weis’ original lawyers were reinstated.  They later filed a motion to dismiss which was denied by the Georgia Supreme Court.  The case is now headed to the United States Supreme Court.        Earlier this year a State Bar of Georgia committee approved a formal advisory opinion that prohibits public defenders working in the same office from representing more than one    defendant in a particular case.  “Conflict cases” arise when the public defender is unable to represent more than one defendant in a case or have a conflict of interest due to prior representation of a victim/witness. Georgia law says that “the current public defender shall establish a method of identifying conflicts of interest at the earliest possible opportunity.”GPDSC created a conflict office to establish criteria for declaring a conflict and offices to handle the conflicts or enter contracts with private attorneys to handle conflict cases. Conflict cases are often handled by private attorneys who are either appointed on a case by case basis or contracted to handle a number of cases for a set fee.      The advisory opinion went to the Supreme Court of Georgia for approval.  On the last day of this year’s legislative session the Georgia legislature passed a law that allows public defenders to transfer these conflict cases to a neighboring public defenders office. OC.G.A. § 17-12-22.      

    GPDSC has expressed concern that conflict cases could cost millions of dollars.  In a budget proposal released earlier in the year GPDSC estimated that the cost of conflict cases could rise from $8 million dollars in 2010 to $15.8 million dollars in 2012.  In  February 2008, the Georgia Supreme Court ruled that a criminal defendant’s right to a lawyer without a conflict of interest was more important than the budgetary concerns of GPDSC.  Garland v. State, 283 Ga. 201 (2008) says that any defendant who raises a claim that his public defender was ineffective at trial is entitled to a conflict free lawyer to handle the appeal.                    

    The Southern Center for Human Rights sued GPDSC seeking to force GPDSC to assign attorneys to 187 defendants who had no attorneys to handle their appeals.  The lawsuit accused GPDSC of violating the U.S. and Georgia constitutions as well as Georgia’s Indigent Defense Act of 2003. Fulton Superior Court Judge Jerry Baxter entered an order that indigent defendants be provided conflict-free lawyers to handle their appeals within 30 days of requesting a new lawyer.  Flournoy et al. v. State of Georgia et al. 2009CV178497.  Judge Baxter said GPDSC has a “clear and non-discretionary duty to provide the effective assistance of conflict-free counsel”  to the defendants. GPDSC appealed the order.  The Supreme Court dismissed the appeal therefore the order stays in place. State of Georgia et al v. Flournoy et al. S10A1472.