Georgia Appellate Law Blog

J. Scott Key, P.C.

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Some Notes on Today's Phan Decision

Khahn Dinh Phan v. State of Georgia

Case Number S10A0374

Vote: 4-3

For the Majority:    Melton, Nahmias, Hines, and Carley

For the Minority:    Hunstein, Benham, and Thompson

Opinion Authors:     Majority Opinion by Justice Melton

Concurring Opinion by Justice Nahmias

Dissenting Opinion by Justice Thompson

Attorneys: For Mr. Phan: Bruce Harvey and Chris Adams

For the State: Danny Porter

Facts of the Case

Mr. Phan is charged with the murder of Hung Thai and his two year old son and the shooting of Mr. Hung’s wife, Hoangoah Thai. The shooting took place on December 29, 2004. Mr. Hung and the child were killed immediately and Ms. Hoangoah was in a coma for seven weeks. After her release from the hospital, she moved to Vietnam, which is her native country. Detectives interviewed her by phone, and she identified the Appellant as the shooter.

Police arrested Mr. Phan on March 16, 2005, and he was subsequently indicted on September 7, 2005. The State filed a notice of intent to seek the death penalty on October 11, 2005. Mr. Phan is indigent. The Georgia Public Defender Standards Counsel retained Bruce Harvey and Chris Adams to represent him. Mr. Harvey’s has never been paid, and the State stopped paying Mr. Adams on August 30, 2008.

GPDSC has not provided funds for defense counsel to travel to Vietnam to explore mitigation and fact evidence. Vietnam is Mr. Phan’s native country and the country where the surviving victim resides.

Mr. Phan filed a motion to dismiss the charges against him and claimed that his right to speedy trial had been denied. Both motions were premised on budgetary shortfalls and claim that the lack of funding has caused a “systematic breakdown of the public defender system.”

The Case was argued to the Court on March, 2010

Bruce Harvey's Argument on Behalf of Mr. Phan to the Supreme Court

http://multimedia.dailyreportonline.com/2010/03/video-bruce-harvey-argues-at-the-high-court/

Chris Adams's Argument to the Court

http://multimedia.dailyreportonline.com/2010/03/video-christopher-adams-argues-at-the-high-court/

Danny Porter's Argument to the Court

http://multimedia.dailyreportonline.com/2010/03/video-christopher-adams-argues-at-the-high-court/

The Opinion is Here:

http://www.gasupreme.us/sc-op/pdf/s10a0374.pdf

Holding

The Court remanded the case to the trial court with the following Directions:

• To thoroughly assess whether there has been an actual breakdown in the entire public defender system prohibiting Mr. Phan from receiving counsel within the framework of the specific facts in the case
• • The Court is instructed to analyze whether alternate funding sources are available and whether alternate representation can be provided at a lower cost
  • To consider whether the trip to Vietnam is necessary or whether counsel can do phone or “internet interviews”
• If no alternatives are available and a systematic breakdown has occurred, the trial court is instructed to run the case through the Barker v. Wingo test for a speedy trial violation, examining
• • The length of the delay
  • The reason for the delay
  • The Defendant’s assertion of the right to speedy trial
  • The prejudice to the defendant

The Dissent

Justice Thompson, joined by Justices Hunstein and Benham, held that the trial court had already found a systematic breakdown of the public defender system. The Court found already that the trip to Vietnam was necessary and that GPDSC lacks funds to pay for it and that GPDSC will not be able to pay for the defense of Mr. Phan in the near future. The remand with the paint-by-numbers instruction to the trial court is merely redundant

The Concurring Opinion

Justice Nahmias’s opinion is notable. He warned the State and the trial court to do its job on remand quickly, pointing out that Mr. Phan has been in jeopardy for six years and that the interlocutory appeal has taken a year to resolve. More presisely, Namias writes, “after this case is remanded, time will not be on the State’s side, and the trial court and parties should be keenly aware that the difficult and close questions this case raises will need to be addressed with alacrity.”

Analysis

This case is troubling for a number of reasons. For one, it is clear that that State has the funds to seek the death of a murder defendant but that the State does not have the funds for the defense. The fact that we are even in this mess demonstrates the sad state of indigent defense in Georgia. It is terribly broken and dysfunctional. Equally as troubling is the fact that the Court views defense counsel on any case, much less a death penalty case, as fungible. It is troubling that GPDSC could contract with death penalty counsel, allow an attorney client relationship to develop, and pull the rug out from under the man the State is trying to kill by substituting cheaper counsel. 

However, Nahmias may be a swing vote on a subsequent challenge, particularly if this case is not resolved quickly on remand. Also, how could any lawyer adequately represent Mr. Phan without visiting his native country and securing records and interviews with people who have no phone access or internet connection?

Live Video Feed of the Kagan Confirmation Hearing

Nightmare of federal sentencing guidelines

Nightmare of federal sentencing guidelines.  Bob Barr's blog post at the AJC on the Federal Sentencing Guidelines.

The Supreme Court of Georgia will Issue Several Opinions Monday

Yesterday, the Supreme Court of Georgia announced that opinions will issue on several cases on Monday, including the JQC action into Judge Kenneth Fowler and a set of attorney discipline cases. A list of cases can be found here. Speaking of Judges Gone Wild, some details of Johnnie Caldwell's undoing can be found here. Mr. Caldwell's resigned his position amidst a JQC investigation, apparently into his conduct in the Crook v. Crook case and a female attorney for one of the parties. This has been a particularly busy year for JQC. Are judges acting worse than ever or are they being scrutinized more than ever?

What might be the appellate implications? I argued a case to the Supreme Court a few weeks ago that had been tried by Mr. Caldwell. I named him at the beginning of the argument rather than simply referring to him as "the court below" or "the trial court." The standard of review on appeal is typically deferential. Appellate courts typically will not reverse a judge's finding of fact unless there is no evidence to support the ruling or where the Court has "abused its discretion." The Supreme Court and JQC taking more judges to task than in recent memory, is it time to revise our standards of review. After all, to what extent do we defer to some judges? Perhaps not so much, which was the point I made by naming the Court on that case. A man like Mr. Caldwell should perhaps be subject to de novo review.

PD director's bid for bench criticized

PD director's bid for bench criticized.

Steven Bright sent a letter to the Judicial Nominating Committee expressing serious reservations about Mack Crawford's nomination to replace Johnnie Caldwell, the judge who abruptly resigned from the Superior Court of Spalding County. Two days later, the committee named Mr. Crawford to the short list.

Indigent defense in Georgia is quite frankly an embarrassment. I spoke to a public defender today who is in an awful ethical quandry where he is torn between his ethical duties to his client and the politics of being in this awful system.

I'm not sure how much blame should be put to Mr. Crawford, who has been at the helm of a system that is apparently the red-headed stepchild of the Georgia Republican establishment, other than the fact that he apparently is within that machine. My college roommate and I once contemplated running for president and vice-president of SGA on the platform of "elect us, and we'll abolish SGA." One wonders if similar things aren't afoot in the way the powers that be choose the heads of indigent defense in Georgia.

Having spoken to that commission in the past when I was a Vice-President for GACDL, the whole thing had the dramatic value of a preliminary hearing or a school disciplinary hearing. The ghost of Clarence Darrow wouldn't change the result. It really looked like a serious committee meeting, but it had the feeling of a rubber stamp of a pre-anointed gubernatorial pick. Put more succinctly, I think the fix is in.

Mr. Bright's comments either encouraged Mr. Crawford's selection or they hit the governor and the committee like Charlie Brown's teacher's voice in an episode of The Peanuts.

Double-Header at the Supreme Court

I was stoked on June 7. I had two arguments at the Georgia Supreme Court. For an appellate law nerd like myself, going to the Supreme Court is like getting to suit up an play pro ball. By that tortured analogy, June 7 was a double header. To push the analogy a little further, both arguments were team efforts. 

My morning argument was Ling v. State. I think I wrote about this case a few weeks ago. The Court granted a certiorari petition on this case. That means that I lost this case in the Court of Appeal, and I had to petition the Court to convince them that the issues in this case. The Court gets a gi-normous number of petitions each year and grant very few of them. The Court granted this one because the justices wanted to consider just what the responsibilities are for a trial court and for trial counsel when the client does not speak English to get an interpreter. 

The issue got some press right after the petition was granted, and several groups showed some interest. While I was on vacation with my son, Baxter and my father in law in D.C. to take in a Nationals game and see the cool airplanes and spaceships at the Air and Space Museum, I received an email from the ACLU Immigrants Rights Project. They were interested in submitting an amicus brief on the case along with the Employment Law Center. Amicus briefs are often submitted in notable cases where a group has some interest or stake in the outcome. Their brief was fantastic, but they offered something else just as valuable.

Being a small law firm provides me enormous flexibility and freedom, but it doesn't offer the opportunity to brainstorm and bounce ideas around with colleagues. Beyond the walls of my office, there aren't a bunch of appellate lawyers around either. The ACLU attorneys started a dialog with me over several emails and phone calls, and the collaboration culminated with a moot court on the Friday before argument with two panels of three as well as a conference call with the ACLU lawyers on the west coast who offered critiques via email later. I booked the practice courtroom at the State Bar building for free, and spent a few hours practicing argument in a simulated environment, with each of the "justices" throwing aggressive and very hard questions at me.

I walked out feeling two things: (1) prepared; and (2) resolved never to argue again without doing a moot court. I flew out to meet my family in Brunswick for the weekend, and I got an email from one of the lawyers on the west coast with excellent critique.

Monday morning, I came to court relaxed but nervous. The Oral Argument went well, and I was gratified to be part of a team effort.

Check out this link, for the video of the Oral argument. While it was just me at the podium, there was a team on the field. On another, the Fulton Daily Report has, for the past several months, posted a cameraman in the Court to record every argument for posting on its website within a day or so. They also go to some trials and record lawyers at work. They do great work, and I have found it to be a resource for me to learn from the mistakes I make at argument as well as from the many lawyers who practice before our Supreme Court.

The afternoon argument involved an inmate who had filed a habeas corpus petition. Habeas corpus is a civil remedy that convicted persons have to challenge whether they are being held in violation of their constitutional rights. The petitioner, Christopher Lucas, had filed his own petition in the county were he is in prison. The court ruled without giving him a hearing first, and he successfully petitioned the court to take on his case. Mercer Law School has a habeas clinic that takes on cases for some inmates in Georgia before the appellate courts. The professor who runs the clinic is Sarah Gerwig-Moore, a friend of mine from college who is brilliant and who cares about the rights of the accused. She asked me if I would be interested in taking Mr. Lucas's case on because school was about to recess for the summer. So, in a way, this case was a team effort, too.

Here's the link to my argument on Lucas

Both cases went very well, and the best part was that I had great lawyers on the other side representing the State, and a Court that was very informed and engaged in the issues.

I will not know the results of these cases for several weeks. Win or lose, it was a great day doing the stuff in my job I love the most.

The End of Time Matters and the Introduction of Cloud Practice Management

I finally decided that I am done with Lexis Nexis Time Matters.  It's horrible, really.  The forms are complicated.  The user interface is bloated.  They don't make it for the Mac.  If you remote into it, as many solo practitioners do from the courthouse, the road, or from a home office, it crashes the program a good bit of the time.  The program crashes on its own.  To become genuinely proficient in it requires hours of one on one instruction by someone who is a specialist.  It is one of those applications that has become an end to itself rather than a means to an end.

This month, we are trying out Rocket Matters, a cloud based practice management solution.  So far, the thing just works.  The interface does a few things well, and it does it all simply.  The tech support people are friendly and helpful, and I can log into it from any computer.

The interesting thing is that my assistant told me that she has been putting stuff on TM because she felt like she had to.

Case closed.

Being the Messenger Means Occasionally Getting Shot

Seth Godin's blog yesterday is particularly relevant to an inevitable moment between lawyers and clients, particularly in something like appellate law or criminal defense.  Whenever you are in the position of helper to people who are going through crisis, often you are the lightening rod.  The justice system is feels nameless and faceless to your client.  While only a small percentage of your cases is on a lawyer's front burner at any particular time, every client's case is constantly on that client's front burner.  Often, the lawyer is the only piece of the machine of justice with which the client can interact.  Bottom line:  get ready to be the object of rage.  You can argue or defend yourself, but Godin point out that the best thing to do is simply acknowledge the rage.  It will make the relationship stronger at a point where it might appear that your client hates you.  

Civil and Criminal Appeals, Too

IMG_6396, originally uploaded by J. Scott Key.

Great Blog Post on How Fear Makes for Bad Appellate Writing

Check it out here.