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Court OKs county prosecutors to seek death penalty in case

ATLANTA -- The Georgia Supreme Court decided Monday that it would not prohibit Gwinnett County prosecutors from seeking the death penalty in the trial of Khanh Dinh Phan, despite the defense's arguments that state funding problems have inhibited his right to a speedy trial.

Phan, a Vietnamese immigrant, has been charged with the 2004 execution-style shooting of a Lilburn couple and their 2-year-old son. The father, Hung Thai, 37, and son, Hugh Thai, died from bullet wounds to the back of their heads.

Hoangoah Ta, now 41, survived after remaining in a coma for seven weeks, later identifying Phan as the perpetrator.

With the state's public defender agency struggling economically and his lawyers not having been paid, Phan has been waiting to go to trial since his arrest in March 2005.

In July 2009, Phan's attorneys, Bruce Harvey and Christopher Adams, filed motions to dismiss charges against their client because they said the state failed to fund his defense against the death penalty.

Monday, a split 4-to-3 decision by the state Supreme Court returned the case to a Gwinnett judge, urging the trial court to determine whether an actual breakdown has occurred to infringe on Phan's right to a speedy trial.

"The trial court must first thoroughly assess whether there has been an actual breakdown of the entire public defender system prohibiting Phan from receiving counsel," Justice Harold Melton wrote for the majority.

"If the trial court determines that no alternatives are available and that a systematic breakdown of the entire public defender system has actually occurred, this determination must then be factored into a constitutional speedy trial analysis."

Justice David Nahmias also wrote for the majority, pointing out that "time will not be on the state's side, and the trial court and the parties should be keenly aware that the difficult and close questions this cases raises will need to be addressed" promptly.