Ga. Capital Case Revives Controversy Over State's Public Defender System

Janet L. Conley, Fulton County Daily Report, June 30, 2010

In an opinion that once again raises concerns about the state's shortage of funds for indigent capital defense, a divided Georgia Supreme Court has sent a death penalty case back to the trial court to determine if a systemic breakdown in the state's public defender system deprived the defendant of counsel.

If the lower court finds that there was a systemic breakdown affecting this particular defendant, an indigent Vietnamese immigrant who allegedly killed another Vietnamese man and his 2-year-old son and severely injured the man's wife in execution-style, back-of-the-head shootings, Justice Harold D. Melton wrote for the majority in the 4-3 decision, then that determination must be factored into an analysis of whether the defendant's speedy trial rights were violated.

In a concurrence, Justice David E. Nahmias appeared to suggest a solution.

"The trial court may take aggressive action to safeguard the public interest and preclude a speedy trial violation ... and the District Attorney has the authority to dismiss the death penalty notice, if that will make adequate funding available to the defense and allow for a speedy trial of this case," Nahmias wrote.

Then Nahmias, a former Northern District of Georgia U.S. Attorney, pointed out the alternative, citing U.S. Supreme Court precedent: "Once a constitutional speedy trial violation is found to exist, however, the remedy will be dismissal of the case."