A Marsden motion is a legal document, brought by a defendant and filed with the court, seeking to fire the person’s court-appointed attorney. The court considers and rules on the motion at a “Marsden Hearing.”
A defendant typically brings the motion because he wants to fire his public defender as his defense counsel for one of the following reasons:
- inadequate or ineffective assistance of counsel,
- legal malpractice, or
- a conflict between the attorney and defendant.
Please note that a Marsden motion is the only way by which a defendant in a California criminal case can fire his court-appointed lawyer.
A Marsden hearing is when the judge rules on the Marsden motion. If he grants the motion, the public defender is removed from the case and the judge will appoint an alternate public defender. If the judge denies the motion, then the public defender remains as the defendant’s lawyer.
Please note that “ineffective assistance of counsel” refers to situations where an attorney’s performance is so flawed that it deprives the defendant of his Sixth Amendment right to a fair trial.
Examples of ineffective assistance of counsel include when a lawyer fails to:
- adequately investigate and prepare for a case,
- raise or vigorously argue the appropriate motions, and
- address concerns about potential prosecutorial misconduct or jury misconduct.
Note that a defendant’s constitutional right to counsel is guaranteed by the Sixth Amendment, which provides for the assistance of counsel for all accused persons.
A Marsden motion is different from a Faretta Motion. A Faretta motion and hearing is when a defendant is seeking to represent himself in pro per.
Our California criminal defense attorneys will highlight the following in this article:
- 1. What is a Marsden motion?
- 2. What happens at a Marsden hearing?
- 3. How does a judge rule on a Marsden motion?
- 4. What is the ineffective assistance of counsel?
- 5. What is a person’s right to counsel?
1. What is a Marsden motion?
A Marsden motion is a legal document, brought by a criminal defendant and filed with the court, for the purpose of firing a defendant’s court-appointed counsel (i.e., a public defender) and getting new counsel.
The name of the motion comes from a real California court case, People v. Marsden.1
A defendant typically brings the motion because he wants to fire his public defender for one of the following reasons:
- inadequate representation or ineffective representation,
- legal malpractice, or
- there is an irreconcilable conflict between the attorney and defendant that substantially interferes with the lawyer’s representation.
Please note that a Marsden motion is the only way by which a defendant in a California criminal case can fire his court-appointed lawyer to get a substitution of counsel.
Please also note this motion only applies with public defenders. If a defendant is represented by a private lawyer, then the party can simply fire the attorney at any time and hire a new attorney as substitute counsel.
2. What happens at a Marsden hearing?
A Marsden hearing is when the judge hears evidence concerning the Marsden motion and decides to either grant it or deny it.
These hearings are in a courtroom and the following parties are typically present:
- the judge,
- the defendant,
- the public defender,
- a court reporter, and
- the courtroom staff members.
The prosecutor may or may not be present. As a practical matter, the defendant’s attorney should request that the prosecutor not be allowed at the hearing. This is to protect any confidential information of the defendant, or confidential information between the defendant and his lawyer.2
During the hearing, the judge hears arguments from the defendant and the attorney on:
- why the lawyer should be removed from the case, and
- why the lawyer should remain on the case.
It is up to the defendant to show that the public defender’s representation has been ineffective or that a conflict is present.
3. How does a judge rule on a Marsden motion?
Upon hearing arguments from the parties, the judge will rule on the motion.
If he grants the motion, the public defender is removed from the case and the judge will appoint a new one.
If the judge denies such motion, then the public defender remains as the defendant’s lawyer.
Please note that California courts have ruled that a public defender cannot be removed for the following reasons:
- the attorney did not make certain arguments at a prior motion3, or
- the lawyer did not bring certain motions that the defendant wanted to be brought before the court4.
Also note that a judge will issue a court order to remove a public defender if that lawyer has only visited, or seen, the defendant one time.5
4. What is the ineffective assistance of counsel?
Ineffective assistance of counsel refers to situations where an attorney’s performance is so flawed that it deprives the defendant of his Sixth Amendment right to a fair trial.
But before a defendant can obtain relief for this claim, he has the burden of proving:
- that the attorney’s conduct was deficient because his representation fell below an objective standard of reasonableness under prevailing professional norms, and
- that the attorney’s failure to act competently resulted in prejudice to the defendant.6
Examples of ineffective assistance of counsel include when a lawyer failed to:
- investigate and prepare for the case adequately,
- raise or vigorously argue the appropriate motions to the trial court,
- object to improper evidence or testimony,
- address concerns about potential prosecutorial misconduct or jury misconduct, or
- present enough mitigating circumstances to obtain a less severe sentence.
If a defendant brings a motion alleging ineffective assistance of counsel, and it is granted by the judge, then there are three possible results. These are:
- if the complaint arises during trial, a new defense lawyer can be appointed or hired,
- if the complaint arises after trial and relates to a lawyer’s actions during trial, a new trial may be ordered, or
- if the complaint arises from a sentencing hearing, the court will dismiss the sentence and resentence the defendant.
5. What is a person’s right to counsel?
A defendant’s right to counsel is guaranteed by the Sixth Amendment to the U.S. Constitution, which provides for the assistance of counsel for all accused persons.
This means that:
- a defendant has the right to be represented by an attorney during trial, and
- if a defendant cannot afford a lawyer, the court will appoint a public defender to the case at no cost to the accused.
Please note that a person’s right to counsel is not limited to legal representation at trial. A person has this right in connection with every important proceeding in a criminal case, from arrest through sentencing and appeal.
An attorney’s assistance is critical in a criminal proceeding for several reasons. Some of these include that a lawyer helps in:
- protecting the accused’s rights,
- negotiating plea bargains,
- investigating facts and analyzing evidence,
- cross-examining witnesses,
- objecting to questions and evidence,
- raising legal motions,
- presenting legal defenses, and
- securing a favorable sentence.
For additional help…
If you or someone you know is interested in filing a Marsden motion, we invite you to contact us for legal help. We are headquartered in Los Angeles but create attorney-client relationships throughout the state of California.
- See People v. Marsden (1970), 2 Cal.3d 118. See also People v Smith (1993) 6 Cal.4th 684, 25 Cal.Rptr.2d 122, Gideon v. Wainwright (1963) 372 U.S. 335, 9 L.Ed. 2d 799, 83 S.Ct. 792, and Faretta v California (United States Supreme Court, 1975) 422 US 806, 835 95 S Ct 2525, 45 L.ed.2d 562. See also California Penal Code §§ 686, 859, 987.
- See People v. Madrid (1985), 168 Cal.App.3d 14.
- See People v. Carr (California Supreme Court, 1972), 8 Cal.3d 287.
- See People v. Silva (1988), 45 Cal.3d 604.
- See same. See also People v Hill (1983) 148 CA3d 744, 755, 196 CR 382.
- See People v. Lewis (1990), 50 Cal.3d 262.