UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION UNITED STATES OF AMERICA v.

JAMES BENJAMIN LEE ) ) ) ) )

NO. 3:12-00055 JUDGE CAMPBELL

ORDER Pending before the Court is Defendant Lee’s Motion Requesting Court-Provided Transcript (Docket No. 86). The Government has filed a Response in opposition (Docket No. 93). The Motion is GRANTED in part and DENIED in part on the following terms and conditions. Defendant Lee moves the Court to “provide Mr. Lee with a Court-funded trial transcript of his previous trial in order to allow him to prepare adequately for the retrial of his case, or, in the alternative, order the government – the party seeking retrial – to pay for and provide Mr. Lee with the trial transcript of his previous trial.” (Docket No. 86, p. 1). The Government argues that the Federal Public Defender’s Office has sufficient funds to pay for a transcript, but has chosen to allocate its funds for other expenses and cases. The Court acknowledges and finds that the budgetary constraints of the Federal Public Defender’s office are real and present a serious risk to the fair administration of criminal justice in the Federal Courts. See Budget Control Act of 2011 (Public Law 112-25), commonly referred to as the “sequester.” The Court also finds that Defendant Lee needs a copy of the trial transcript to prepare adequately for the retrial of his case that previously resulted in a hung jury. The difficult question is who should pay for the transcript and with what funds. Funds appropriated specifically for Court operations should not be used to pay for defense or prosecution expenses, unless specifically authorized by Congress. Congress has appropriated separate funds for defense and prosecution expenses. The use of funds appropriated for Court operations to pay

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for either defense or prosecution expenses runs the risk of such an expenditure being an inappropriate augmentation of the budgets of the offices of the Federal Public Defender or United States Attorney. In addition, it raises possible conflict of interest concerns since the control of funding can possibly control outcomes. It is important that the Court not be perceived to be financially favoring one party over another. It is also unwise to order the United States Attorney’s Office to pay the expenses for the defense when the United States Attorney is not the cause of the lack of funds of the Federal Public Defender or otherwise somehow at fault for the situation. Requiring one party to pay the litigation expenses of another blameless party also may have a tendency to undermine the adversarial system. The Court finds that the most prudent way for the Defendant to obtain the transcript is for the Court to appoint a CJA Panel attorney to represent Defendant Lee, in addition to his Federal Public Defenders. The CJA Panel attorney may then order the transcript and obtain payment for it through CJA funds in accordance with well established procedures. The Court hereby specifically authorizes the payment of the trial transcript through CJA funds. For the reasons stated above, and as stated in a contemporaneous Order, the Court finds good cause for the appointment of one additional counsel. Accordingly, pursuant to 18 U.S.C. § 3006A, the Court orders the Federal Public Defender’s office to designate a member of the Federal Defender’s Panel to represent Defendant Lee. The Court finds that the appointment of one additional attorney is in the interest of justice and necessary in this difficult and complex case. See § 230.53.20 of the Guide to Judiciary Policy, Volume 7, Part A. See also Gideon v. Wainwright, 372 U.S. 335 (1963). IT IS SO ORDERED.

__________________________________ TODD J. CAMPBELL UNITED STATES DISTRICT JUDGE

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Case 3:12-cr-00055 Document 96 Filed 05/01/13 Page 2 of 2 PageID #: 321

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