This murder case, in which the State seeks the death penalty, returns to us for a second pre-trial appeal in which we must address the consequences of a financially strained indigent defense system operating within a recession-era State budget. In Phan v. State,
As set forth in Phan I,
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.
Id. at 697-698. Phan was arrested in March 2005 and indicted in September 2005. In October 2005, the State filed its notice of intent to seek the death penalty. Attorney Christopher W Adams, then the Director of the Office of the Georgia Capital Defender,
In December 2007, defense counsel submitted a written request to the Capital Defender’s Office for authorization of funds for the defense team — including both attorneys, a mitigation specialist, and a translator — to travel to Vietnam for investigation both as to guilt/innocence and mitigation. In January 2008, funds for the trip
In August 2008, the defense filed a motion
In April 2009, on the day before a long-scheduled motions hearing, the defense filed a constitutional speedy trial demand and a motion to dismiss for the State’s failure to provide sufficient resources for the defense. At the outset of the hearing, defense counsel requested a continuance on the basis that the GPDSC had stopped paying their fees in the case. The defense presented testimony to the effect that the then-Director of the GPDSC, having received a recent State audit report indicating potential constitutional problems with the funding structure for GPDSC’s arrangements with outside counsel, had suspended further payments for Phan’s case and approximately ten other similarly situated cases. Further testimony revealed that the GPDSC had asked the legislature for a special
The trial court denied the defense’s motions in a May 2009 order which also purported to certify the case for interlocutory or interim review. In its order, the trial court made various findings of fact regarding the progression of the case, concluding that the GPDSC was at that time unable to provide any further funds for the defense and that there was “[n]o end... in sight to this situation.” The court further concluded that “by a systemic failure GPDSC is denying Mr. Phan the basic resources to mount an effective defense.” However, uncertain of its authority to undertake the remedies requested by the defense, the trial court denied the requested relief and stated that it would “await[ ] further direction from the Georgia Supreme Court on how to proceed.”
On appeal, this Court vacated the trial court’s order and remanded the case with instructions to (1) conduct further analysis on the existence of a “systemic breakdown” in the public defender system, see Vermont v. Brillon,
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. . .. The trial court may also want to consider alternatives to travel to Vietnam, such as phone or internet interviews of witnesses.
Id. at 698-699. The determination as to the existence of a “systemic breakdown” in the public defender system, we explained, “becomes part of the balance in determining whether a speedy trial violation
The trial court held a remand hearing in October 2010. By that time, a limited pool of funds had been located from which the GPDSC had been able to pay all of Adams’ past-due bills in full. Testimony was adduced that this pool of funds was potentially available for Phan’s defense going forward, though whether this was a legally legitimate use of these particular funds was the subject of debate. Further testimony was presented that funding for the defense could also potentially be made available from Gwinnett County. Another option, according to the hearing testimony, was for the GPDSC to terminate its contract with Adams and Harvey and bring the case back “in house” to the GPDSC capital defender division. The director of the capital defender division testified that his office had recently hired an additional staff attorney, and that, while his “first choice” would be to keep the case in Adams’ and Harvey’s hands for the sake of continuity, his office, if necessary, would be able to fully staff the case within a few months.
Based on this testimony, the trial court found that the public defender system was not irretrievably broken, as constitutionally effective attorneys were then available to represent Phan. Noting that Adams had recently relocated his law practice to South Carolina, the court further ordered that Adams and Harvey be removed as counsel and that staff attorneys from the capital defender division be “immediately assigned” to Phan’s case. Having found no systemic breakdown in the public defender system, the trial court proceeded to conduct a speedy trial analysis and rejected Phan’s claim of a speedy trial violation. The case is now ripe for our review.
1. Alleged violations of the constitutional right to a speedy trial are analyzed in two stages under the well established framework set forth in Barker v. Wingo, supra. “First, the court must determine whether the interval from the accused’s arrest, indictment, or other formal accusation to the trial is sufficiently long to be considered ‘presumptively prejudicial.’ ” Ruffin v. State,
(a) Length of the delay. Where no trial has occurred, the length of delay should be calculated from the date of arrest or formal accusation to the date on which the motion to dismiss on speedy trial grounds was decided. State v. Porter,
(b) Reasons for the delay. This factor, which examines whether the defendant or the State bears more responsibility for the delay, is “pivotal in evaluating the strength of a constitutional speedy trial claim, as it can color the consideration of all other factors.” Ruffin, supra,
While we agree that the defense bears some responsibility for the delay, we cannot, even under a deferential standard of review, agree that the defense alone is to blame. The trial court was correct in observing that the defense on several occasions sought and was granted continuances in the case, while the State repeatedly maintained that it was ready to proceed. See Robinson v. State,
Moreover, the trial court seemingly did not take into account the lengthy period of time before the defense began seeking continu-
However, just as we cannot blame the defense alone for the delay initiated by its continuance requests, so also are we unable to consider the State solely responsible for the delay prior to that time. In addition to the defense’s role in delaying the issuance of the indictment, we also note that defense counsel waited until December 2007 — more than two years from the time the death notice issued and more than a year after production of the State’s discovery — to request funds for the trip to Vietnam. Further, the evidence strongly suggests that, had the request been submitted earlier, prior to the GPDSC’s imposition of the one-attorney limit on out-of-state travel, it would have been approved as a matter of course,
It was at this point, in late 2008 and early 2009, that the situation began to resemble a “systemic ‘breakdown in the public defender system’ ” of the type that the United States Supreme Court has recognized as being chargeable against the State in a speedy trial analysis. See Vermont v. Britton, supra,
Overall, the government and the defense share the responsibility for the delays in this case. The prosecution was less than proactive in moving the case forward during the initial years after indictment; the defense also appears to have been in no hurry. This initial, largely unexplained delay pushed the case squarely into the vortex of the State budget crisis, which was beyond the control of either the prosecution or the defense. Though the State is ultimately responsible for delays occasioned by budget problems, see Weis, supra,
(c) Defendant’s assertion of the right. “The relevant question for purposes of the third [speedy trial] factor is whether the accused has asserted the right to a speedy trial ‘in due course.’ ” Ruffin, supra,
Here, Phan first asserted his right to a speedy trial in April 2009, more than four years after his arrest and three-and-a-half years after his indictment. At no point during the years-long period before the funding issues became salient did the defense assert any objection to the slow pace of the case, and the defense actively sought further
(d) Prejudice. Whether the defendant has established prejudice as a result of the delay requires consideration of the oppressiveness of pre-trial incarceration, undue anxiety suffered by the defendant, and impairment of his ability to mount a defense. Ruffin, supra,
We have acknowledged that “the greater the delay between charging and trial, the greater the presumed impairment of witness recollections and other evidence needed for a fair and reliable trial.” State v. Porter, supra,
(e) Summary. We conclude that the trial court properly weighed the length of the delay against the State and properly weighed Phan’s delay in asserting his speedy trial right heavily against the defense. We further conclude that the trial court incorrectly weighed the reasons for the delay against the defense because both parties bore some responsibility for it, and that this factor should have remained neutral in the analysis. In addition, we find that the trial court correctly found no actual prejudice and that, to the extent prejudice was presumed,
the presumptive prejudice arising from any delay . .. was insufficient for [Phan] to prevail on his constitutional speedy trial claim, given that there was no demonstrable prejudice to [Phan’s] defense and [Phan] was dilatory in asserting his rights. [Cit.]
2. Phan contends that his rights to counsel and due process have been violated by the trial court’s decision to replace Adams and Harvey with staff attorneys from the GPDSC’s capital defender division. We first observe that “[a]n indigent defendant has no right to compel the trial court to appoint an attorney of his own choosing.” Davis v. State,
However, when a defendant’s choice of counsel is supported by objective considerations favoring the appointment of the preferred counsel, and there are no countervailing considerations of comparable weight, it is an abuse of discretion to deny the defendant ] . . . the counsel of his preference.
Id. “[T]he court’s exercise of its discretion is to be reviewed in light of the factors before the court at the time of its decision.” Amadeo v. State,
Here, while we recognize the value in having original counsel continue their work on the case — for reasons of efficiency and continuity and due to the relationship of trust they have undoubtedly developed with their client over these many years — we simply cannot overlook the compelling “countervailing considerations” that exist. First and foremost, retaining current counsel would perpetuate the funding problems that have plagued this case thus far. See Weis, supra,
We do note the defense’s contention that the trial court’s resolution fails to address how the GPDSC will pay for the Vietnam trip, expert witnesses, and other costs necessary to mount an effective defense that are not included within the budgeted salaries of GPDSC staff attorneys. However, we also note that evidence was presented at the remand hearing indicating that the GPDSC, and possibly Gwinnett County, currently have funds available for such travel and other investigative expenses. Thus, it appears that funds for such undertakings — the necessity of which is essentially undisputed
the clock is still ticking. It has now been [almost seven] years since [Phan] was [arrested], and the vigor and formality with which he has presented his constitutional speedy trial claim are no longer subject to challenge.
Ruffin, supra,
3. We emphasize that our determination that the trial court acted within its discretion should in no way be construed as an endorsement of the system that has led us down this tortuous path thus far. The interests of no one — neither prosecutors nor defendants, victims nor taxpayers — are served by the uncertainty and delay attending to a chronically underfunded indigent defense system. This case is an object lesson in the perils of such underfunding; 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. We can only hope that those within the branches of government empowered
Judgment affirmed.
Notes
The GPDSC is the agency created under the 2003 Georgia Indigent Defense Act to oversee the provision of effective and uniform indigent defense on a statewide basis. See Ga. L. 2003, p. 191, § 1; OCGA §§ 17-12-1 to 17-12-13. The capital defender’s division is responsible for providing indigent defense in death penalty cases in the State. OCGA § 17-12-12 (a).
The Office of the Georgia Capital Defender was the predecessor to the capital defender division of the GPDSC. See OCGA § 17-12-12 (a). See also OCGA §§ 17-12-120 to 17-12-128 (repealed effective July 1, 2008, see Ga. L. 2008, p. 846, § 42).
Though Adams subsequently left the Office of the Capital Defender to go into private practice, he arranged to continue his representation of Phan, as memorialized in a contract with the GPDSC entered into in February 2008, in which the GPDSC agreed to pay Adams up to a total of $100,500 for his services in the case.
Though there appears to be no dispute that Harvey was retained as defense counsel by the GPDSC prior to issuance of the death notice, the record contains no written contract memorializing his engagement, and apparently Harvey has never sought or received any payment for his services in the case.
This motion was originally filed ex parte, but it and the transcript of the hearing thereon, as well as subsequent ex parte filings and evidence regarding defense funding, have been unsealed by the trial court for use in this appeal.
Striking the death notice, while not only reducing the significance of the Vietnam trip by eliminating the need for a mitigation investigation, would also, the defense argued, have eliminated the statutory impediment to requiring the county to assist in funding the defense. See Ga. Public Defender Standards Council v. State,
Indeed, testimony at the August 2008 hearing from the director of the capital defender division indicated that, absent the various budget directives, the GPDSC would likely have approved the travel request in its entirety.
At the remand hearing, the defense presented testimony, which the State has not challenged, to the effect that an effective mitigation investigation must be conducted in person as opposed to the less costly route of communicating with witnesses via remote means.