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United States v. Smith

United States District Court, M.D. Tennessee, Nashville Division

January 3, 2018

UNITED STATES OF AMERICA
v.
JERROD NICHOLS SMITH

          ORDER

          Billy Roy Wilson UNITED STATES DISTRICT JUDGE

         In August 2017, the jury trial in this case was continued because Defendant's lawyer, Mr. Kendrick, broke his hip.[1] On November 20, 2017, eight days before trial, Defendant filed a motion for a continuance, asserting that his lawyer needed additional time to prepare for trial.[2]The motion was denied on November 21, 2017.[3] Just over five hours later, Defendant filed a Motion to Continue because his lawyer had pneumonia.[4] The motion was granted.[5]

         On November 22, 2017, I raised the issue of the need for back-up counsel in this case. Mr. Kendrick indicated that he “would welcome co-counsel” after “giving thought to the effect of [his] age and apparently declining health may have on [his] client and [his] ability to properly represent him in the upcoming trial.”[6] He added that he would “of course, cooperate fully with co-counsel if [I were to] appoint one.”[7]

         In response to Mr. Kendrick's email, I notified the parties that I had retained a back-up judge in case I was unavailable for the February 2018 trial. The Prosecution assured me that it too had back-up. However, when I suggested again that Mr. Kendrick or his client retain backup counsel, Mr. Kendrick responded with the following:

I have discussed your indication of intent with my client. In addition, I have sought personal legal counsel since you do indicate intent to take action against me personally.
My client continues to maintain, as I have stated before, that he does not have the financial ability to employ additional counsel. I also asked him if he was satisfied with me as his counsel and he stated that he was.
Your Honor, I don't know whether it is proper for me so say or not, but I would show the court that if my client has resources, I would seek to have them apply to the sizeable balance which he owes me.
I also show the court that any attempt to charge me with payment for my client's co-counsel will have a number of negative effects, among which are:
1. It would constitute an unlawful taking of my property and
2. It would create a conflict of interest between me and my client.
In any event, I continue to announce ready for trial on February 20, 2018.[8]

         On December 19, 2017, I directed Mr. Kendrick to have his client fill out an in forma pauperis form so that I could appoint back-up counsel. Two weeks later, when no in forma pauperis application had been filed, I followed up with Mr. Kendrick. He responded:

My client stated that he did not believe that a lawyer new to the case could become adequately prepared to represent him ...

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