Georgia is seeking the death penalty for Khan Dinh Phan, a Vietnamese immigrant charged with murder, but after four years the case has not come to trial because the state has failed to adequately fund the defense. Phan's defense attorneys are asking the Georgia Supreme Court to dismiss the death penalty part of the prosecution. "You don't have to have the death penalty in Georgia, but if you have it, the Constitution requires you must provide the defense the basic tools to prepare," said Chris Adams, one of Phan's attorneys. "Georgia has failed to provide Mr. Phan basic resources for several years, and there is no end in sight." The prosecutor in the case, Gwinnett District Attorney Danny Porter, agreed that the state is obligated to provide the necessary funds for the defense, "The state voluntarily took on this obligation of the public defender system. It's up to them to adequately fund it." A typical defense in a capital case in Georgia costs about $150,000 to $200,000. Phan's attorneys are seeking funds for overseas travel and interpreters so that they can interview his relatives and witnesses in Vietnam.
The District Attorney suggested that one way to resolve the funding dispute would be to send the head of the defender council to jail for contempt in failing to provide the necessary funding for the case. But the legislature has not provided sufficient funds to the defender council. Since 2005, the system has been shortchanged a projected $21.8 million from funds it was supposed to receive. In an order signed last month, Gwinnett County Superior Court Judge Ronnie Batchelor said the overseas investigative trip was necessary, and the defender council's failure to fund it "denies counsel the basic tools to build a defense." The judge also found there was a "systemic failure" by the council to allow Phan's defense team “to mount an effective defense as required by the Georgia and U.S. Constitutions." Phan's prosecution could be entirely dismissed because of a defendant's constitutional right to a speedy trial.