Marsden Motions and Hearings in California – How to Fire Your Public Defender

Marsden Motions — How to Fire Your Public Defender

California criminal defense attorney Neil Shouse explains the process for removing a public defender and asking the judge to assign a new one. A “Marsden Motion” is the process for replacing your court-appointed public defender with a different public defender. This is not the same process as just firing your public defender, and paying to hire a private attorney, which is something the court will almost always allow a defendant to do. But if you still would like to have a public defender, just a new and different public defender from the one that’s already representing you, then that’s when you file a Marsden motion. After filing the motion, there will be what’s called a Marsden hearing, between the defendant, the judge, and the current public defender. It is during this hearing, that the judge will make a ruling on whether they will grant the Marsden motion, and allow a new public defender to be assigned to the case, or whether they will deny the motion, and require the defendant to keep their current public defender. However, judges rarely grant Marsden motions, and there need to be extreme circumstances to convince a judge to grant the Marsden motion. Simply having a rude or disrespectful public defender, or a public offender that doesn’t return your calls, or has differing legal opinions, is normally not enough for a judge to grant the motion. In order to get a judge to grant the Marsden motion, you will need to show a more severe cause, such as a conflict of interest, legal misconduct, or ineffective assistance of counsel. One other cause for granting a Marsden motion, is if the public defender forces their client to take a plea deal. PD’s can advise a client to take a deal, but it’s the client’s right, and the client’s right alone, to choose whether they accept the deal in the end. The best option, if a client is unhappy with their public defender, is to pay money to hire private counsel. Since most Marsden motions are denied by the judge, filing a Marsden motion will likely only make the defendant’s relationship with their PD even more strained, and it may make it less likely to get the outcome they are hoping for. More info at https://www.shouselaw.com/marsden-motion or call (888) 327-4652 for a free consultation. If you or a loved one is charged with a crime we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

A Marsden motion is a legal document, brought by a defendant and filed with the court, for the purpose of firing a defendant's court-appointed attorney. The court considers and rules on the motion at a "Marsden Hearing."

The name of the motion comes from a real California court case, People v. Marsden. And, the motion can be filed in either misdemeanor or felony cases.

A defendant typically brings the motion because he wants to fire his public defender for one of the following reasons:

  1. inadequate or ineffective assistance of counsel,
  2. legal malpractice, or
  3. 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 a new one. 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:

Note that a defendant's right to counsel is guaranteed by the Sixth Amendment, which provides for the assistance of counsel for all accused persons.

This right 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.

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:

judge reading marsden motion

1. What is a Marsden motion in California?

A Marsden motion is a legal document, brought by a defendant and filed with the court, for the purpose of firing a defendant's court-appointed attorney (i.e., a public defender).

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:

  1. inadequate or ineffective assistance of counsel,
  2. legal malpractice, or
  3. there is a 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.

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 one.

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.

judge looking at defendent

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 the 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:

  1. the attorney did not make certain arguments at a prior motion3, or
  2. the lawyer did not bring certain motions that the defendant wanted to be brought before the court4.

Also note that a judge will not remove a public defender if that lawyer has only visited, or seen, the defendant one time.5

4. What is “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:

  1. that the attorney's conduct was deficient because his representation fell below an objective standard of reasonableness under prevailing professional norms, and
  2. 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,
  • 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:

  1. if the complaint arises during trial, a new defense lawyer can be appointed or hired,
  2. if the complaint arises after trial and relates to a lawyer's actions during trial, a new trial may be ordered, or
  3. 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:

  1. a defendant has the right to be represented by an attorney during trial, and
  2. 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.

Are you considering firing your public defender in California? Call us for help…

criminal defense attorneys
Call us for help at (855) LAW-FIRM

If you or someone you know is interested in filing a Marsden motion, we invite you to contact us for a free consultation. We can be reached 24/7 at 855-LawFirm.


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