LOWELL — The commonwealth is urging the state’s highest court to reverse a judge’s decision granting bail to three Lowell brothers charged with first‑degree murder, arguing the ruling was “erroneous” and an “abuse of discretion” that ignored the seriousness of the case and the defendants’ criminal backgrounds.
The defense team for Billy, Billoeum and Channa Phan, meanwhile, argues the delay that prompted the bail request is the commonwealth’s own doing, saying prosecutors failed to disclose for more than a year that State Police Sgt. Scott Quigley — a sergeant assigned to the detective unit attached to the Middlesex District Attorney’s Office — was involved in a fatal drunk‑driving crash.
The defense said Judge Christopher Barry‑Smith acted well within his discretion in setting bail after the revelations derailed the retrial and forced the court to reopen discovery.
The dispute is now before the Supreme Judicial Court, which is expected to have a decision this coming week.
In a petition filed on Wednesday, the Middlesex District Attorney’s Office urged the SJC to reverse Barry‑Smith’s decision setting $25,000 bail for each defendant as they await retrial in the September 2020 shooting death of 22‑year‑old Tyrone Phet in Lowell.
A single justice of the SJC put that ruling on hold within hours, issuing a temporary stay that has kept the brothers in custody, where they have remained since their arraignments roughly five and a half years ago.
Prosecutors argued that Barry-Smith improperly granted what they described as an “open‑ended continuance” to allow the defense to investigate allegations that Quigley, a key investigator in the Phan case, was intoxicated during the fatal 2023 crash in Woburn.
They said Barry‑Smith then used the resulting delay as the basis for granting bail.
“The continuance rested on the speculative premise that information related to a separate, years‑later investigation into a non‑testifying officer’s alleged misconduct might yield admissible impeachment evidence,” the filing states. “Neither theory is legally viable.”
The commonwealth stressed that because Quigley will not testify at the retrial and has a Fifth Amendment privilege, any misconduct allegations cannot be used to impeach him. Prosecutors also argue the defense cannot use the crash to challenge the adequacy of the 2020 murder investigation because the wreck occurred years later.
“There was no need to delay a murder trial indefinitely to allow the defendants to engage in a free‑wheeling investigation of a matter that … is entirely extraneous to this case,” the filing stated.
Even if reconsideration were appropriate, prosecutors said, the judge misapplied the bail factors by giving “dispositive” weight to the length of detention while downplaying the seriousness of the charges and the brothers’ criminal histories.
The filing describes the fatal shooting as a “coordinated, premeditated killing” of a stranger and says all three defendants have “an extensive history of escalating violent crime” and ties to the Outlaws street gang, which it says is involved in violence and illegal drug manufacturing and distribution.
Though not mentioned in the prosecution’s filing, Billoeum Phan’s record includes a 2006 voluntary manslaughter conviction in the shooting death of 21‑year‑old Samnath Oth during a gang‑related fight in Lowell. He was 14 at the time and tried as an adult on a charge of second-degree murder.
A jury convicted him of the lesser charge after he claimed self‑defense. At sentencing, a judge called the killing “the single most grievous offense to mankind” but said he believed Billoeum Phan was “salvageable,” committing him to the Department of Youth Services until age 21 with a suspended sentence to follow.
Prosecutors also cite in their filing what they describe as a “demonstrated risk of flight,” a history of defaults, and the mandatory life‑without‑parole sentence the brothers face if convicted.
“These factors overwhelmingly favor detention,” the commonwealth stated, while arguing that the judge’s ruling amounted to “a clear error of judgment.”
The Phan defense team, in an opposition filed Friday, argued Barry-Smith’s bail ruling was the product of a “careful, deliberate and unhurried review.”
The filing states the retrial’s delay prompting the bail request “is entirely the Commonwealth’s fault,” pointing to the late disclosure of Quigley’s December 2023 crash, in which Special Olympian Angelo Schettino was fatally injured.
“The Commonwealth seeks to control how much time the defense may have to investigate the new developments,” the filing states. “The Commonwealth cannot be allowed to sidestep its discovery obligations, regardless of how the Commonwealth continues to drag its feet.”
According to the defense, prosecutors first revealed during jury selection in January that Quigley had reportedly ingested alcohol before the crash. Subsequent disclosures showed his blood alcohol concentration was .114, based on hospital records released in a civil lawsuit.
The defense argues the revelations forced the judge to dismiss 12 seated jurors, halt the retrial, and reopen discovery — all because the commonwealth failed to investigate or disclose the incident sooner.
“The unexpected disclosure about Quigley warranted dismissing twelve seated jurors, cancelling the trial after two weeks of lengthy proceedings, and reopening discovery,” the defense stated. “Simply put, the false start scenario of late, or worse, could be repeated.”
They also argue that ongoing discovery could reveal admissible evidence, noting that Quigley had eight car crashes during his time as a trooper and that the Middlesex DA’s Office may have been aware of the 2023 crash before the first trial.
“There is no support to the Commonwealth’s contention that the investigation will resolve shortly and produce nothing relevant to the Phans’ prosecution,” the filing states.
The defense added the commonwealth is asking the SJC to make evidentiary rulings “in a trial in which it has only partially been presented with all the relevant information,” and argues that “a bail argument is not the place to argue the admissibility of evidence.”
The defense stated that Barry‑Smith weighed the seriousness of the charges, the potential penalties, the brothers’ family ties and financial circumstances, their minimal history of failing to appear in court, and what they describe as the weakening of the commonwealth’s case after a hung jury in 2024, necessitating a retrial.
The conditions the judge imposed — including home confinement with GPS monitoring — were “sufficiently stringent,” the defense wrote.
“There is nothing in the Order even suggesting that Judge Barry‑Smith abused his discretion,” the filing states.
Their retrial began in January, but jury selection was halted after news of the 2023 crash emerged.
“The credibility of all the investigators in this case is at issue,” attorney William Dolan, representing Billy Phan, wrote in a motion filed in January requesting a pause in the retrial.
The Suffolk County District Attorney’s Office, meanwhile, is investigating the 2023 crash to determine whether criminal charges will be filed against Quigley.
Schettino’s family has also filed a wrongful‑death lawsuit in Essex County Superior Court against the State Police.
The Middlesex District Attorney’s Office has hired a retired judge to conduct an independent review of the office’s handling of the case, and the State Police have brought in an outside firm to review their response to the crash while conducting an internal affairs investigation.
Barry‑Smith has again postponed the Phan retrial date — previously set for April 27 — and scheduled a status conference for June 2, noting in his bail ruling that “the disclosure was unquestionably late because of the particular State Police Troopers involved and their role in this case.”
Follow Aaron Curtis on X @aselahcurtis, or on Bluesky @aaronscurtis.bsky.social.
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