SAN JOSE -- In a twist to an already unusual case, prosecutors have dropped a murder charge against a man they initially thought fatally stabbed a San Jose State student last month at a Piedmont Hills birthday party, and now say his twin brother did it.

Duc Tong, 18, of San Jose, was charged with murder last week in the Jan. 26 stabbing of 22-year-old San Francisco native Richard Phan, A San Jose State University senior studying biological science. Tong's twin brother, Anh Tong, was arrested but not charged.

Now the roles are reversed: Anh Tong, who has been kept in jail since he and his brother were arrested the day after Phan died, has been charged with murder and a knife enhancement, and charges against Duc Tong have been changed to two felony counts of being an accessory in the killing.

The development appears to bear out what one legal expert outlined as unusual challenges for prosecutors as soon as the twins were arrested, including the reliability of witnesses distinguishing between twin suspects who appear to be identical amid a frenzied brawl several hours into a party where guests had been drinking alcohol.

Deputy District Attorney Dan Fehderau said San Jose police continued to investigate the case after the arrests and initial charges against Duc Tong, and uncovered evidence that prompted prosecutors to change course.

"New and credible information came to light that required a re-evaluation of the roles," Fehderau said.


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That led to prosecutors filing an amended complaint Wednesday that essentially flipped the accusations against the brothers. Anh Tong, who is being held without bail, is expected to appear in court by the end of the week. Duc Tong is being held on $200,000 bail with a court hearing scheduled for Feb. 24.

For potential jurors, the seeds of doubt may have been sown, said Steven Clark, a criminal defense attorney, legal analyst and former Santa Clara County prosecutor.

"A jury could be somewhat skeptical of the prosecution's case with this fairly pronounced shift," Clark said. "The jury is going to want assurance they got it right this time."

According to police, Phan was attending a birthday party at a home in the 3400 block of Suncrest Avenue when a fight broke out around 1 a.m. Jan. 26. Phan was somehow involved and may have been trying to break it up when he was stabbed. He died at the hospital.

The Tongs reportedly left the scene, and detectives, aided by witness accounts, tracked the brothers to their San Jose home, where they were arrested a little over a day after the stabbing.

While additional details of the case are concealed under court order, Fehderau said that Duc Tong is "accused of aiding his brother in avoiding arrest or conviction in the murder." He added that he has no reservations about the strength of the case.

"We're confident in the charges that we filed," he said. "We have to follow where the evidence goes. This is an example of police keeping an open mind, pursuing an investigation and wanting to get it right."

But the questions elicited by twin defendants and now the shifting charges will likely linger, Clark said.

"I suppose you could ask why (prosecutors) didn't wait to file charges, whether they were premature. But it's better to get it right," he said. "It's going to be difficult, and there may be more to it in the weeks to come."

Contact Robert Salonga at 408-920-5002. Follow him at Twitter.com/robertsalonga.