Defense attorneys appeal decision overturning bail for brothers charged in Lowell killing
Lawyers representing three brothers who have been held without bail for more than five years after being indicted on first-degree murder charges in 2021 are appealing a decision by a single justice of the Supreme Judicial Court denying their release on bail.
Justice Dalila Argaez Wendlandt overturned a decision by Superior Court Judge Christopher Barry-Smith granting bail to Billoeum, Billy Lee and Channa Phan after prosecutors appealed Barry-Smith's ruling.
Barry-Smith's decision came after the planned retrial of the brothers was upended by revelations that an investigator involved in the case may have been driving drunk when he was involved in a fatal crash .
The investigator, Massachusetts State Police Sgt. Scott Quigley, was indicted by a grand jury on Thursday on a charge of felony motor vehicle homicide in connection with a crash in Woburn in December 2023. Prosecutors say Quigley was driving both negligently and under the influence of alcohol on Dec. 12, 2023, when his unmarked State Police vehicle crossed the centerline and crashed into an oncoming van, killing the van's passenger.
Prosecutors in Middlesex County did not disclose that Quigley had been involved in a fatal crash or that he may have been driving under the influence at the time to defense attorneys for the Phan brothers until jury selection was underway in the retrial. Under standard criminal procedure, prosecutors are required to turn over any information that could benefit the defense.
The revelations regarding Quigley's conduct prompted Barry-Smith to further delay the planned retrial for the Phan brothers to allow their defense attorneys to fully investigate what they have described as a "cover-up."
After delaying the trial, the judge agreed to release the brothers on bail even though they are charged with first-degree murder.
"The most recent delay in trial, at least four months and perhaps meaningfully more, is attributable in full to the prosecution," Barry-Smith wrote. "The 'length of the defendant's pretrial detention and the equities of the case' compel the opportunity for bail."
Prosecutors immediately appealed the order to a single justice of the Supreme Judicial Court, who agreed to pause Barry-Smith's ruling and decide the issue herself.
While Wendlandt agreed that the recent Quigley-induced delay was the fault of prosecutors, she wrote that "it is unknown whether any ... members of the prosecution team were aware and failed timely to disclose the circumstances of the December 2023 crash."
"The belated disclosures related to Quigley's conduct, and the prospect of a potentially larger scope of misconduct, certainly is troubling," she wrote. "That said, the bulk of the time that the defendants have been detained, to date, is unrelated to the Quigley disclosure."
Wendlandt wrote that the original reasons that support holding the brothers without bail haven't changed and suggested they are as much at risk of fleeing to avoid being prosecuted now as when they were first charged.
All three Phan brothers have deep ties to Lowell, but Wendlandt noted those ties are "intermingled with criminal activity," as prosecutors say they are members of a gang. She also said the prosecution's case was strong at the time of the indictments and hasn't weakened since then.
The Phans are accused of shooting 22-year-old Tyrone Phet in a hail of bullets as he sat in his car outside a home in Lowell. Prosecutors described the shooting as a "show of strength."
Channa Phan is accused of disposing of the car used in the killing, and prosecutors contend at least two of the brothers tried to evade arrest by fleeing Lowell as investigators closed in on them.
Wendlandt also pointed to the brothers' long criminal histories, noting that Billoeum Phan was convicted of manslaughter in 2009 when he was a minor. While in custody awaiting trial in the current case, prosecutors say Billoeum Phan participated in two separate attacks on other incarcerated men.
Billy Lee Phan was convicted of being an "armed career criminal" in 2010. Channa Phan has prior criminal convictions, including for crimes such as assault and battery with a dangerous weapon.
Barry-Smith put too much weight on the time factor in his analysis of whether the brothers could be released on bail, Wendlandt said, writing that it fell "outside the range of reasonable alternatives."
Defense lawyers have since filed notice of intent to appeal the decision, asking a full panel of the Supreme Judicial Court to rule on the bail issue.
Barry-Smith has scheduled a status conference for the Phan murder case on June 2. He has yet to rule on a defense request for an evidentiary hearing on a motion to dismiss the case over the Quigley issues.
In addition to the criminal investigation that led to his indictment, questions about whether Quigley's conduct was adequately investigated have prompted three other investigations. They include an Internal Affairs investigation by the State Police, a third-party review from the firm 21CP Solutions and an investigation of the district attorney's office led by a retired judge.
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