Does A Seven-Year-Wait Behind Bars Violate The Sixth Amendment Right To A Speedy Trial?

Written by Masoninblue and reblogged here with permission.

What were you doing in March, 2005?

On February 27, the Georgia Supreme Court denied Khanhn Dinh Phan’s request to dismiss the death penalty case pending against him. Such an order under ordinary circumstances would not merit comment, but these are not ordinary circumstances. Khanh Dinh Phan has been locked up in the Gwinnett County Jail in Georgia for seven years without a trial.

In addition to rejecting his argument that the State of Georgia has violated his Sixth Amendment right to a speedy trial (See: Barker v. Wingo, 407 U.S. 514 (1972); Strunk v. U.S., 412 U.S. 434 (1973)), the Court removed his court-appointed counsel and appointed new counsel over his objections, even though his lawyers did not cause the delay in bringing him to trial and did nothing wrong. In fact, they did what they were required to do and what I would have done if I had been representing Mr. Phan in order to provide him with effective assistance of counsel, which is what the Sixth Amendment requires (See Gideon v. Wainwright, 372 U.S. 335 (1963); Strickland v. Washington, 466 U.S. 668 (1984)).

The Facts

Mr. Phan is charged with intentionally killing Hung Thai and his two-year-old son by shooting them in the head execution-style, allegedly as punishment for Hung Thai’s failure to pay a gambling debt. Mr. Thai’s wife, Hoangganh Ta, was also shot in the head, but she survived and returned to live in Vietnam after emerging from a coma seven months after the shooting. She has identified Mr. Phan as the shooter and she also provided law enforcement with information regarding the alleged motive.

The trial court appointed two lawyers to represent Mr. Phan, which is standard operating procedure in a death penalty case. The two lawyers were Chris Adams, who was the Director of the Georgia Capital Defender’s Office at that time, and Bruce Harvey, a lawyer in private practice.

The Pretrial and Mitigation Investigation

Adams and Harvey did what any qualified and experienced death-penalty lawyers would have done in this case. After establishing a relationship of confidence and trust with their indigent client, they asked the trial court to authorize the expenditure of reasonable funds to travel with an investigator to Vietnam to interview Hoangganh Ta about the homicides and to interview members of Mr. Phan’s family, friends, and others who knew him in Vietnam such as neighbors, teachers, employers, counselors, and doctors who might have provided him with medical treatment. The former is routine pretrial investigation that should be conducted in any case and the latter, which we call mitigation investigation, is required in all capital cases so that no stone is left unturned in the effort to discover evidence about the defendant, or the circumstances of the crime, that might in fairness or mercy potentially cause a juror to vote for a sentence of less than death (See Porter v. McCollum, 130 S.Ct. 447 (2009)).

The mitigation investigation must be conducted prior to trial, which is necessarily before the defendant has been acquitted or convicted, because, if the defendant is convicted, the case would proceed to a sentencing phase immediately after the jury returned the guilty verdict, or within a few days, not allowing sufficient time to conduct the investigation. Clients rarely understand the necessity to pry deeply into their past history and relationships searching for clues to explain seemingly unexplainable homicidal behavior that they are adamantly denying. They regard the investigation as a form of rape and it is very difficult for the lawyers to establish a relationship of trust and confidence when the client wants to hear the lawyer say, “I believe you when you say you are innocent and I will do everything that I possibly can to win this case.”

This tension explains why a death-penalty case is much easier to handle, if the client admits guilt. Most clients, however, deny guilt inevitably generating conflict in the attorney-client relationship over the necessity for and wide ranging scope of the search for mitigation evidence. From the results of post-conviction DNA testing and reinvestigation, we now know for certain that a significant percentage of death-penalty defendants are innocent (approximately 20%). The attorney-client conflict generated by the mitigation investigation is an additional, but no less valid reason to abolish the death penalty.

In this case, Mr. Phan’s lawyers appear to have navigated successfully through the minefield.

Gwinnett County Cannot Afford To Pay For What The Law Requires

Mr. Phan’s case went off the rails when Gwinnett County could not afford to pay for the trip to Vietnam. Defense counsel could not agree to forego the necessary trip and they could not reasonably or legally be expected to finance the trip themselves.

Contrary to long established United State Supreme Court precedent, Gwinnett County also refused to pay for a defense expert regarding the effect of gunshot injuries to the brain on memory (Cf Ake v. Oklahoma, 470 U.S. 68 (1985)).

Since defense counsel could not adequately prepare for trial, the trial could not go forward. And so, Mr. Phan languished and continues to languish in jail waiting for his day in court, a day that may never come.

The Georgia Supreme Court’s Decision

Notwithstanding the passage of seven years without a trial, due to the trial court’s failure to pay for reasonably necessary defense costs to prepare for trial that it is required to compensate (Cf, Ake v. Oklahoma, 470 U.S. 68 (1985) and its progeny), the Georgia Supreme Court not only refused to dismiss the case for violation of Mr. Phan’s right to a speedy trial, it aggravated the situation by dismissing his lawyers replacing them with public defenders who will cost less because they are already paid a salary, regardless of how many hours they work, rather than an hourly wage.

Rather than requiring the Gwinnett County Circuit Court to pay the necessary and reasonable expenses for counsel to defend Mr. Phan, an obligation imposed by long-standing United States Supreme Court precedent, the Georgia Supreme Court fashioned a ‘solution’ to save money by destroying an existing attorney-client relationship by appointing new lawyers. Presumably, the Court believes that the financial savings can free-up sufficient funds to pay for the reasonably necessary expenses that must be paid for the trial to go forward.

Whether and when that will happen is anybody’s guess.

Conclusion

The prosecuting attorney in Gwinnett County should not be seeking the death penalty in a case when the circuit court cannot afford to pay for the reasonably necessary expenses to defend the case.

Ultimately, of course, it is the State of Georgia’s responsibility to budget and pay for the reasonable and necessary expenses that the county circuit courts must pay to fund indigent defense. Death penalty cases are expensive and, if Georgia wants to kill people, then Georgia must bear the cost of prosecuting, defending, and killing them.

Savaging and scavenging a successful seven-year attorney-client relationship to free-up money to pay for reasonably necessary defense expenses is a willful and intentional destruction of Mr. Phan’s right to counsel and a gross denial of his right to a speedy trial — all of which has been done to fund a robbing-Peter-to-pay-Paul scheme.

The Georgia Supreme Court’s decision is little more than a variation of the Ponzi Scheme. That it would employ such a tactic to kill someone speaks volumes as to its regard for the United States Constitution, the Sixth Amendment, and the Rule of Law.

If the right to a speedy trial means anything, it means that no one should be forced to rot in jail for seven years without going to trial. After all this time, he is no closer to trial than he was after he was arrested in March, 2005.

Shameful and disgusting.

For additional information, see John Rudolph’s article at the Huffington Post.

Cross posted at my law blog.

Hearsay, Part Deaux: Frog Gravy Legal Case

Written by my husband Masoninblue, and reprinted, full-text, here with permission.

Good afternoon, class.

Now that you are experts regarding what constitutes hearsay, let’s take a look at an interesting issue in Crane-Station’s case.

The arresting officer, McCracken County Sheriff’s Deputy Eddie McGuire testified at her Preliminary Hearing that, after she was thoroughly searched at the roadside by a female officer who did not find any contraband or paraphernalia, he arrested her for DUI, handcuffed her with her hands behind her back, placed her in the backseat of his patrol vehicle, and transported her to Lourdes Hospital in Paducah for a blood draw. As he was assisting her to get out of the backseat at the hospital, she told him that her watch had fallen off her wrist during the ride and it slipped beyond her reach behind the seat. She asked him to please retrieve it, which he agreed to do.

When the returned to his vehicle after the blood draw, he unlocked the back door, pulled the seat forward, and reached beneath it to grab the watch. When he handed her the watch, he also showed her a small crumb-like object and said, “Sure looks like heroin to me.”

He also testified that he field tested the substance after he took her to jail and it tested negative for the presence of heroin. He said he did not field test it for cocaine because “We knew all along it would be crack.”

In the trial judge’s chambers before jury selection on the first day of the trial, the prosecutor asked the trial judge to prohibit the defense from mentioning during jury selection and opening statement her statement about her watch and her request to retrieve it on the ground that the statements were inadmissible hearsay unless he offered them into evidence as an admission by a party opponent, which he did not intend to do. He also asked the judge to prohibit the defense from attempting to introduce her statements into evidence during the trial or to mention them in closing argument.

The trial judge agreed despite defense counsel’s objection.

To make matters more bizarre, Deputy McGuire changed his testimony regarding how he retrieved the watch. Without mentioning her statements, of course, he said he saw her watch and the rock together in the seatbelt crack in plain view on the seat beside her before he helped her to get out of the backseat after they arrived at the hospital.

When her attorney attempted to confront him on cross examination with the deputy’s prior inconsistent testimony under oath at the Preliminary Hearing, the prosecutor objected and the trial judge sustained the objection.

In closing argument, the prosecutor argued that she had not explained why her watch was in plain view next to the rock of crack in the seatbelt crack right beside her. Not surprisingly, the jury convicted her of possessing the rock of crack and tampering with evidence (i.e., attempting to conceal it in the seatbelt crack).

Now, let’s analyze her statements. To determine if they were hearsay, we begin by asking if the defense would have offered them to prove the truth of the matters asserted in her statements.

Answer: No, because they would have been offered to show that in response to something she said, he pulled the seat forward to look for her watch and that is when he found it, handed it to her, and produced the crumb-like substance that by his own admission he “knew all along was going to be crack.”

Notice that phrased this way, it is clear that what she actually said was not important. The point is she said something and whatever it was, it prompted him to pull the seat forward and look under it where he found her watch and the crumb-like object. That is, they were not in plain view and we know that because he testified at the Preliminary Hearing under oath that that is how he found the watch and the rock.

Whenever the actual words in a statement do not matter, as is the case here, the statement necessarily is not being offered to prove the truth of the matter asserted in the statement. Make a note of this and remember it because it is very important.

Not only were her statements admissible, the deputy’s previous testimony under oath at the Preliminary Hearing was admissible to impeach his testimony about finding her watch and the rock together in plain view beside her.

The prosecutor’s incredibly sleazy closing argument commenting on her failure to explain why her watch and the rock were together in plain view, when he persuaded the trial judge to prohibit her from providing that explanation, was an atrocious improper comment on her court ordered silence.

Finally, the trial judge’s evidentiary rulings prevented her from putting on a defense in violation of her Fifth, Sixth, and 14th Amendment rights.

Namaste

Cross posted at my blog and the Smirking Chimp.

Author’s Note: Due to the length of this essay, I have decided to discuss the rest of the hearsay rule in Part 3 tomorrow.