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Top Georgia court gives guidance on handling complaints about long waits for trials

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ATLANTA --- A divided Georgia Supreme Court issued new orders Monday for how judges should assess speedy trial complaints amid a growing number of lawsuits questioning whether the cash-strapped public defender system can afford to represent poor defendants in costly capital cases.



The 4-3 ruling Monday declined to block state prosecutors from pursuing the death penalty against Khanh Dinh Phan, who has become a focal point for the debate because he claims his right to a speedy trial has been violated. He has waited in jail for more than five years while the state struggles to pay his defense bills.

Phan was accused of the 2004 killings of a 37-year-old man and his 2-year-old son in what prosecutors say was a dispute over a gambling debt. Prosecutors said they would pursue the death penalty after his March 2005 arrest. But the statewide public defender system ran out of money, his attorneys have not been paid and he remains in jail.

Both prosecutors and Phan's appellate attorneys agreed there had been a breakdown in the system because of the funding problems. A Gwinnett County trial judge ruled there was a "systemic failure" in the public defender system but that it was unclear whether prosecutors could still pursue the death penalty.

The high court's ruling Monday attempts to provide more clarity with how judges should handle the complaints. It sent Phan's case back to a trial judge who must review whether there "has been an actual breakdown in the entire public defender system prohibiting Phan from receiving counsel."

The state's top court had ruled in March that there was no such breakdown in a similar case involving death penalty defendant Jamie Ryan Weis, who waited in jail for more than two years without an attorney.

Monday's ruling said that if a trial court has determined the system is so broken that no qualified public defender can take the case, it should conduct a four-part test established by a 1972 U.S. Supreme Court ruling to determine whether the speedy trial rights have been violated.

That test would involve balancing the length of the delay, the reasons for it, the timing of the complaint and the damage it has done to the case.

"In the current case, the trial court's order does not fully address options, if any, for Phan's representation," Justice Harold Melton wrote for the majority, which also included Justices David Nahmias, George Carley and Harris Hines.

In a dissent, Justice Hugh Thompson argued that he sees no reason to send the case back to the Gwinnett County judge because "the evidence demonstrates a systemic breakdown of the public defender system, and the Superior Court has already made a finding in this regard."


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