Marsden Motions and Hearings – How to Fire Your Public Defender

A “Marsden Motion” is brought by a defendant in a California criminal case asking to discharge the court-appointed attorney or public defender. This motion is filed with the court and the request is evaluated at a Marsden Hearing where the court makes a ruling.

The name of the motion comes from a real California court case People v. Marsden.

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 as his defense counsel 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 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.

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:

• 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?
• Additional reading

1. What is a Marsden motion?

A Marsden motion is a legal document, brought by a criminal defendant and filed with the court, to fire a defendant’s court-appointed counsel (usually a public defender) and get new counsel.

The name of the motion comes from a real California court case of 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 representation or ineffective representation,
2. legal malpractice, or
3. 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 to public defenders. If a private lawyer represents a defendant, 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 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 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:

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 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 the judge grants it, 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.

Additional reading

For more in-depth information, refer to these scholarly articles

• When the Public Defender Falls Short – UC Davis Law Review.
• Do Public Defender Resources Matter? The Effect of Public Defender and Support Staff Caseloads on the Incarceration of Felony Defendants – Journal of Society for Social Work and Research.
• Physician–Public Defender Collaboration — A New Medical–Legal Partnership – Medicine and Society.
• Idleness as work? How public defenders do their job by waiting – Crime, Law and Social Change.
• Public Defenders as Gatekeepers of Freedom – UCLA Law Review.

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