A Marsden motion is the only means by which a criminal defendant can fire a court-appointed attorney or communicate directly with a judge in a California state court. [1] It is based on a defendant's claim that the attorney is providing ineffective assistance or has a conflict with the defendant. The name comes from the case People v. Marsden . A defendant is required to know to make a challenge of ineffective assistance of counsel, and make one, or the claim of ineffective assistance of counsel or the issue cannot be raised on appeal. There is no requirement to notify a defendant of such a requirement.
A criminal defendant cannot simply fire a court-appointed attorney. The trial judge has discretion whether or not to appoint new counsel on request of the defendant.
A Marsden motion is a unique means by which a criminal defendant can communicate with the court. A criminal defendant who is represented by counsel can only communicate with the court through that counsel. Since that counsel's competency or ability to work with the defendant is being challenged, the attorney cannot at the same time defend against and represent the defendant's claims of incompetency or conflict. So the California courts allow a defendant represented by court-appointed counsel to directly communicate with the trial judge in the context of a Marsden motion, and only in such a context.
A Marsden motion is a formal request made by a criminal defendant to the court. The court hears arguments on the motion from the defendant and the attorney, without the presence of the prosecutor. The basis for making the motion may be inadequate or ineffective assistance of counsel, legal malpractice, or because there is a conflict between attorney and client that substantially interferes with the attorney representing the client. The defendant must establish either that the representation has been inadequate, or that a conflict makes it likely that it will be inadequate. [2] [3] In the case of a denial of the motion, the standard of review is abuse of discretion.
The language of the Marsden decision contains the sufficient criterion that attorney and defendant are "embroiled in such an irreconcilable conflict that ineffective representation is likely to result." [4]
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In 1968, defendant Michael John Marsden was charged and convicted of crimes in California. Marsden appealed the conviction. The only stated basis of the appeal was that he was denied his constitutional right to counsel because his counsel was ineffective.
At trial, Marsden complained that his attorney was not adequately representing him before his trial. Marsden asked the court to appoint another attorney. The judge refused to listen to the specific examples Marsden tried to tell the judge. Marsden was convicted, and appealed. The appeals court found that the judge must consider specific examples of inadequate representation before deciding whether or not to appoint a new attorney for a criminal defendant.
Marsden requested that his attorney be removed before his trial. He told the trial judge that he was receiving inadequate representation from the attorney. Marsden offered to give the court specific examples. The court would not let Marsden give the specific examples, and denied the motion to have Marsden's attorney removed. In his appeal, Marsden contended that this denial without giving him an opportunity to list specific examples of inadequate representation deprived him of a fair trial.
In its opinion, the appellate court cited the case of Gideon v. Wainwright as establishing that criminal defendants who cannot afford counsel are entitled under the constitution to have the court appoint an attorney to be paid for by the government. [5] It held that this did not give a defendant the right to hire and fire attorneys beyond this appointment, and left it with the trial court to establish whether or not there is adequate assistance. In other words, the court has discretion as to whether to remove an attorney, not the defendant. However, the appellate court found that in Marsden's case, the trial court could not have properly exercised its discretion without allowing Marsden to specify instances of inadequate representation. The court found that critical information about the adequacy of representation may not be in the court records because of that inadequacy, so a defendant must have a right to specify them, and they must be inquired into by the court.
Marsden motion appeals have cited associated cases relevant to application of the case.
In Gideon v. Wainwright , it was determined that a criminal defendant who cannot afford an attorney is entitled to have a court appoint an attorney, and the government must pay for the attorney. Gideon was one of the bases for the Marsden decision.
Schell v. Witek found that forcing a criminal defendant to go to trial with an irreconcilable conflict with their attorney would deprive them of effective assistance of counsel. [6] [7]
Even when counsel is found to be competent, it has been found that a conflict between counsel and defendant that cannot be resolved would create a situation where the defendant is being denied the right to counsel. In Daniels V. Woodford, it was found that when a court refuses to appoint new counsel after a defendant has completely lost trust in their attorney, that defendant is thereby effectively denied any counsel whatsoever, "Even if trial counsel is competent, a serious breakdown in communications can result in an inadequate defense." [8] [9]
A prosecutor may not be present during a court hearing on a Marsden motion.
To require that a Marsden hearing be conducted, "no formal motion is necessary, [but] there must be 'at least some clear indication by defendant that [they] want a substitute attorney.'" Valdez, citing People v. Luck, 45 Ca. 3d 259 (1988
When an attorney makes a motion for determination as to whether or not a criminal defendant is competent, a Marsden motion must be heard before the competency hearing, known as a section 1368 hearing. People v. Stankewitz held that although criminal proceedings must be halted during a hearing for competency, a Marsden motion is not a criminal proceeding and must be heard first. "Hearing a Marsden motion during a competency hearing does not reinstate criminal proceedings against the defendant." [10] From People v. Stankewitz: [11]
(W)hile the trial court may not proceed with the case against the defendant before it determines his competence in a section 1368 hearing, it may and indeed must promptly consider a motion for substitution of counsel when the right to effective assistance `would be substantially impaired' if his request were ignored.
A court refusing a Marsden motion prior to a 1368 hearing is a judicial error, according to People v. Solorzano. However, a subsequent appeal court decision in People v. Govea did not consider such error to be prejudicial, and did not reverse a conviction, finding that "there was no prejudicial Marsden error". [12]
Defendants may present evidence in support of their Marsden motion.
Defendants making Marsden motions are often advised by advocates to create a clear paper trail. This is because the court often gives more credibility to attorneys than to criminal defendants, and a successful motion may trigger a state Bar investigation if granted based on ineffective assistance. Aram Byer James, a former public defender and watchdog of abuses by the public defender, who teaches defendants and their families how to file a Marsden Motion, emphasizes creation of a paper trail as essential to the success of the motion prior to trial, or to basing an appeal on the denial of the motion.
Powell v. Alabama, 287 U.S. 45 (1932), was a landmark United States Supreme Court decision in which the Court reversed the convictions of nine young black men for allegedly raping two white women on a freight train near Scottsboro, Alabama. The majority of the Court reasoned that the right to retain and be represented by a lawyer was fundamental to a fair trial and that at least in some circumstances, the trial judge must inform a defendant of this right. In addition, if the defendant cannot afford a lawyer, the court must appoint one sufficiently far in advance of trial to permit the lawyer to prepare adequately for the trial.
In United States law, ineffective assistance of counsel (IAC) is a claim raised by a convicted criminal defendant asserting that the defendant's legal counsel performed so ineffectively that it deprived the defendant of the constitutional right guaranteed by the Assistance of Counsel Clause of the Sixth Amendment to the United States Constitution. Ineffectiveness claims may only be brought where the defendant had the right to counsel, ordinarily during the critical stages of a prosecution.
In criminal law, the right to counsel means a defendant has a legal right to have the assistance of counsel and, if the defendant cannot afford a lawyer, requires that the government appoint one or pay the defendant's legal expenses. The right to counsel is generally regarded as a constituent of the right to a fair trial. Historically, however, not all countries have always recognized the right to counsel. The right is often included in national constitutions. Of the 194 constitutions currently in force, 153 have language to this effect.
People v. Marsden2 Cal.3d 118 is a 1970 California Supreme Court decision that held it was error for the trial court to deny a defendant's motion to relieve his court-appointed counsel without holding a hearing to allow the defendant to explain his grounds. The trial court had denied the motion based on the trial judge's own observations of the proceedings and belief that the attorney was providing effective representation. Criminal defendants in the United States have the right to appointed counsel if they cannot afford to hire an attorney under the Sixth Amendment as interpreted by the United States Supreme Court case Gideon v. Wainwright.
Legal malpractice is the term for negligence, breach of fiduciary duty, or breach of contract by a lawyer during the provision of legal services that causes harm to a client.
Faretta v. California, 422 U.S. 806 (1975), was a case in which the Supreme Court of the United States held that criminal defendants have a constitutional right to refuse counsel and represent themselves in state criminal proceedings.
Strickland v. Washington, 466 U.S. 668 (1984), was a landmark Supreme Court case that established the standard for determining when a criminal defendant's Sixth Amendment right to counsel is violated by that counsel's inadequate performance.
Wiggins v. Smith, 539 U.S. 510 (2003), is a case in which the United States Supreme Court spelled out standards for "effectiveness" in the constitutional right to legal counsel guaranteed by the Sixth Amendment. Previously the court had determined that the Sixth Amendment included the right to "effective assistance" of legal counsel, but it did not specify what constitutes "effective", thus leaving the standards for effectiveness vague. In Wiggins v. Smith, the court set forth the American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases Guideline 11.8.6.(1989), as a specific guideline by which to measure effectiveness and competence of legal counsel.
Godinez v. Moran, 509 U.S. 389 (1993), was a landmark decision in which the U.S. Supreme Court ruled that if a defendant was competent to stand trial, they were automatically competent to plead guilty, and thereby waive the panoply of trial rights, including the right to counsel.
Indiana v. Edwards, 554 U.S. 164 (2008), was a United States Supreme Court case in which the Court held that the standard for competency to stand trial was not linked to the standard for competency to represent oneself.
Pro se legal representation comes from Latin pro se, meaning "for oneself" or "on behalf of themselves" which, in modern law, means to argue on one's own behalf in a legal proceeding, as a defendant or plaintiff in civil cases, or a defendant in criminal cases, rather than have representation from counsel or an attorney.
Martinez v. Court of Appeal of California, 528 U.S. 152 (2000), is a United States Supreme Court case in which the Court decided an appellant who was the defendant in a criminal case cannot refuse the assistance of counsel on direct appeals. This case is in contrast to Faretta v. California, 422 U.S. 806 (1975), which grants criminal defendants the right to refuse counsel for trial purposes.
The United States Constitution contains several provisions regarding the law of criminal procedure.
The Assistance of Counsel Clause of the Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right...to have the Assistance of Counsel for his defence."
Glasser v. United States, 315 U.S. 60 (1942), was a landmark decision of the US Supreme Court on two issues of constitutional criminal procedure. Glasser was the first Supreme Court decision to hold that the Assistance of Counsel Clause of the Sixth Amendment required the reversal of a criminal defendant's conviction if his lawyer's representation of him was limited by a conflict of interest.
In the United States, a public defender is a lawyer appointed by the courts and provided by the state or federal governments to represent and advise those who cannot afford to hire a private attorney. Public defenders are full-time attorneys employed by the state or federal governments. The public defender program is one of several types of criminal legal aid in the United States.
Bell v. Cone, 535 U.S. 685 (2002), was a Supreme Court of the United States case that upheld a death sentence despite the defendant's argument that he should not be sentenced to death because he was suffering from drug-induced psychosis when he committed the crimes. Cone also argued that he was denied effective assistance of counsel because his attorney failed to present sufficient mitigating evidence during the sentencing phase of his trial and that his attorney inappropriately waived his final argument during the sentencing phase. In an 8–1 opinion written by Chief Justice William Rehnquist, the United States Supreme Court denied Cone's petition for a writ of habeas corpus. The Court held that the actions taken by Cone's attorney during the sentencing phase were "tactical decisions" and that the state courts that denied Cone's appeals did not unreasonably apply clearly established law. Justice John Paul Stevens wrote a dissenting opinion in which he argued that Cone was denied effective assistance of counsel because his attorney failed to "subject the prosecution's case to meaningful adversarial testing."
Lafler v. Cooper, 566 U.S. 156 (2012), was a United States Supreme Court case in which the Court clarified the Sixth Amendment standard for reversing convictions due to ineffective assistance of counsel during plea bargaining. The Court ruled that when a lawyer's ineffective assistance leads to the rejection of a plea agreement, a defendant is entitled to relief if the outcome of the plea process would have been different with competent advice. In such cases, the Court ruled that the Sixth Amendment requires the trial judge to exercise discretion to determine an appropriate remedy.
Kimmelman v. Morrison, 477 U.S. 365 (1986), was a decision of the U.S. Supreme Court that clarified the relationship of the right to effective assistance of counsel under the Sixth Amendment to other constitutional rights in criminal procedure. In this case, evidence against the defendant was probably seized illegally, violating the Fourth Amendment, but he lost the chance to argue that point due to his lawyer's ineffectiveness. The prosecution argued that the defendant's attempt to make a Sixth Amendment argument via a habeas corpus petition was really a way to sneak his Fourth Amendment argument in through the back door. The Court unanimously disagreed, and held that the Fourth Amendment issue and the Sixth Amendment issue represented different constitutional values, and had different requirements for prevailing in court, and therefore were to be treated separately by rules of procedure. Therefore, the habeas corpus petition could go forward. In its opinion, the Court also gave guidance on how to apply its decisions in Stone v. Powell and Strickland v. Washington.
Martinez v. Ryan, 566 U.S. 1 (2012), was a United States Supreme Court case which considered whether criminal defendants ever have a right to the effective assistance of counsel in collateral state post-conviction proceedings. The Court held that a procedural default will not bar a federal habeas court from hearing ineffective-assistance-of-trial-counsel if there was no counsel or ineffective counsel in an initial-review collateral proceeding.