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Q: Firing and rehiring a different court appointed attorney (California) ( Answered 4 out of 5 stars,   2 Comments )
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Subject: Firing and rehiring a different court appointed attorney (California)
Category: Miscellaneous
Asked by: kencarroll1-ga
List Price: $25.00
Posted: 14 Nov 2006 11:07 PST
Expires: 14 Dec 2006 11:07 PST
Question ID: 782692
How do we fire a court-appointed attorney, and ask the court to
appoint another attorney?

Details: My son was charged with a capital offense in Orange County
Superior Court and hired an attorney. After two and half years, he
finally made it to trial (he is still being held without bail) only to
have a mistrial called and the jury dismissed. It will be another four
months before the next schedule trial. During this process, we ran out
of funds. The court appointed the current attorney as counsel and has
been paying his fees.

The current attorney refuses to discuss the case with us or our son.
He has refused to do anything to assist in my son's defense. Actually,
the prosecutor has done more to prove my son's innocence than has the
attorney.

During the trial, all of the prosecutor's own witnesses stated our son
had nothing to do with the murder. The man that did do the murder has
already plead quilty and taken a plea agreement. We are confused as to
why the prosecutor has not dismissed the charges against our son, and
our son's attorney refuses to communicate with us? The judge dismissed
the jury because of juror's misconduct. It will be almost three years
my son has been held in custody without bail. We are beside ourselves
- how can we get a different attorney?

Request for Question Clarification by pafalafa-ga on 14 Nov 2006 19:26 PST
Sorry to hear of your family's difficulties...sounds like something
right out of Kafka.

Have you spoken to anyone at the court itself about the situation?  I
would imagine the court clerk should be able to provide you with the
procedure for requesting a different attorney.

If you've done this already, please let us know what the response has been.

pafalafa-ga

Clarification of Question by kencarroll1-ga on 15 Nov 2006 10:08 PST
I have been unable to reach the court - I keep leaving messages, but
as of yet, no response

Request for Question Clarification by nenna-ga on 16 Nov 2006 10:43 PST
Could you tell me what court district please, if any?

Nenna-GA
Answer  
Subject: Re: Firing and rehiring a different court appointed attorney (California)
Answered By: umiat-ga on 16 Nov 2006 11:35 PST
Rated:4 out of 5 stars
 
Hello, kencarroll1-ga! 

 I spent most of yesterday and today trying to research how you might
petition the court to hear your request for a new attorney for your
son. I kept coming up against dead ends. I finally resorted to
contacting a law librarian via email from the Orange County Law
Library. I explained your dilemma and this was the reply:


Reply - "If defendant has court appointed counsel, I'm going to assume
that this is a criminal case. To replace appointed counsel, a
defendant can request a "Marsden Hearing." For information about a
"Marsden Motion" go to the county law library and ask for the
following title: California Criminal Law: Procedure and Practice by
CEB. Look in the index under Marsden Motion."

==


 I began to research Marsen Motions and Marsden Requests online and
found very little information regarding the procedure, the initiation
of the request, or the timelines involved in requesting a Marsden
Hearing. I have to confess that the information I did find left a
question in my mind as to whether this even applies to all
court-appointed counsel, or just an initial appointment of a public
defendent (which is not your son's case). However, I still have hopes
that this avenue might offer a potential angle in trying to secure
different legal counsel for your son.

As with all questions of a legal nature, I must advise you that I am
not a lawyer (or even close to being one!) Please be advised of the GA
disclaimer below and be aware that this answer is for informational
purposes only!

"Answers and comments provided on Google Answers are general
information, and are not intended to substitute for informed
professional medical, psychiatric, psychological, tax, legal,
investment, accounting, or other professional advice."


==


Now, here is what I have found!


What is a Marsden Hearing?

Marsden Hearing
http://familyrightsassociation.com/bin/marsden_hearing.htm

"It is an attorney?s duty, whether a public defender or privately
employed by you, to be diligent in keeping contact with you. A common
complaint is that they fail to communicate with the defendant prior to
trial. Communication with your attorney is a must and you and your
defense counsel should agree upon defense strategy. As with all cases
the pretrial work begins with a meeting with you. Communication must
remain open throughout the investigation phase as well as the trial
phase of your case.

"In most jurisdictions a "Marsden Hearing" is allowed. This hearing is
to allow the court to hear the defendant's problems with their court
appointed counsel giving the court cause to appoint new counsel.
However you must show the court serious problems, such as lack of
contact and/or communication.

* "To seek a Marsden Hearing, write a letter to the judge, requesting
to a meeting with him regarding your appointed counsel. Send a copy to
both your counsel and the prosecutor sending all copies and the
original (to the judge) via certified mail, remember to keep a copy
for yourself. This letter should state all problems you are having
with your attorney. Keep the letter concise, compact and truthful do
not jeopardize your honor before the judge by stretching the truth."


==


From Roberts & Elliot website
http://www.robertselliott.com/criminal.html

"Criminal law offers a maze of foreign procedures, concepts, and
language. This page is intended to provide an overview of California
criminal law and procedure. It is not intended to replace an attorney
or the large body of work available on California criminal law."

* "Marsden Motion" - A motion made by the defendant claiming he is not
being represented adequately.


==


The Marsden Case can be read here:
http://www.lawyerdude.8k.com/marsden.html


==

MARSDEN MOTION (People v. Marsden (1970) 2 Cal.3d 118).
http://www.bestdefender.com/terms.html

"When defendant expresses to the court a desire to have new counsel
appointed, the court must give the defendant the opportunity to
articulate the reasons in support of the request in order to properly
exercise discretion whether to relieve existing counsel. (But see
People v. Ortiz (1990) 51 Cal.3d 975, holding that a trial court may
not require an indigent criminal defendant to demonstrate inadequate
representation by his retained attorney, or to identify an
irreconcilable conflict between them, before it will approve the
defendant's timely motion to discharge his retained attorney and
obtain appointed counsel.)"


==


From http://fearnotlaw.blogspot.com/2005/11/people-v-cathy.html

A. Standards Applicable to Marsden Motions

An indigent criminal defendant is entitled to an appointed defense
attorney as part of his Sixth Amendment right to the effective
assistance of counsel. Accordingly, under the rule first established
in Marsden, supra, 2 Cal.3d at page 123, the trial court must appoint
substitute counsel if the current appointed attorney is providing
inadequate representation or if the attorney-client relationship has
become embroiled in an irreconcilable conflict that make ineffective
representation likely. (People v. Vera (2004) 122 Cal.App.4th 970,
978-979 (Vera).) When a defendant brings a Marsden motion, the court
must give the defendant the opportunity to state the specific reasons
why he believes he is not being adequately represented. (Id. at p.
979.) In order to prevail on such a motion, the record must clearly
show that substitution of counsel is required under the Vera test.
(People v. Lara (2001) 86 Cal.App.4th 139, 150.)


====


 Now, I cannot say whether you will have any luck in pursuing this
angle but it is worth a try. I was unable, after hours and hours, to
find any sample forms or any references concerning exactly "how" to go
about this procedure.


 My best suggestion is for you to go to a local law library and read
the book suggested by the librarian in my email chat session -
"California Criminal Law: Procedure and Practice by CEB. Look in the
index under Marsden Motion."


 If you can find a book outlining California Criminal Law, the
relevant sections have been posted here:
http://www.witkin.com/pages/witkin_library_pages/outlines/CRIM/Crim%20Trial.htm  

 Scroll down to 

 IV. RIGHT TO COUNSEL

    G. Competency and Effective Assistance of Counsel.

       6. Procedure in Raising Issue.

          (a) Marsden Motion.

          (1) [222] In General.

          (2) [223] Time of Motion.

          (3) [224] Error in Granting Motion


 Alternatively, you can try calling the court and request that they
point you in the right direction. However, as you have noted, every
time you call the court you get no answer!


I sincerely wish I could find this information online so I could be
sure it might be of use to you, but I have been banging my head
against the wall for hours and cannot find anything explaining the
procedure.


===



Please note that the Marsden Motion "must" be filed! See what happened
in the following case (scroll down to page 13 -  IV Marsden Inquiry):
http://caselaw.lp.findlaw.com/data2/californiastatecases/a101894.pdf


Here is an example of a court case where a Marsden petition was denied:

May 8, 2003 - CALIFORNIA SUPREME COURT UPHOLDS ANOTHER DEATH PENALTY
CASE OVER MARSDEN AND HEARSAY OBJECTIONS
http://www.mayolawclinic.com/opinions.html

Death Penalty Upheld  In People v. Smith (2003) (5/8/03; 03 C.D.O.S.
3879; ___ C4th ___), the California Supreme Court held that under
People v. Marsden (1970) 2 C3d 118, a defendant is entitled to new
counsel if the record clearly shows that appointed counsel is not
providing adequate representation, or that the defendant and counsel
have become embroiled in such an irreconcilable conflict that
ineffective representation is likely to result.  Substitution of
counsel lies within trial court's discretion.  A trial court does not
abuse its discretion in denying a Marsden motion unless the defendant
shows that the failure to replace appointed counsel would
substantially impair the defendant's right to assistance of counsel.
(People v. Hart (1999) 20 C4th 546, 603.)  Also, the trial court must
permit the defendant to explain the basis of his contention and to
relate specific instances of inadequate performance.  Here, the
defendant's complaints about counsel merely showed a disagreement as
to trial tactics, and no showing of deficient performance was made. 
Hence, disagreement concerning strategy or tactics, by itself, is
insufficient to compel discharge of appointed counsel per Hart, supra.


==


If you run into more stumbling blocks and want to get some more legal
information, please don't hesitate to use the "Ask a Librarian
"feature from the Orange County Law Library.

 Use "Ask a Librarian" to submit legal reference questions directly to
 Orange County Public Law Librarians.  We will answer by return
e-mail."
http://www.oc.ca.gov/lawlib/
http://www.oc.ca.gov/lawlib/NEW-REQUEST-FORM.HTM


Better yet - go there in person and ask for a librarians help. That is
what they are there for!

Orange County Public Law Library
515 North Flower Street Santa Ana, CA 92703 
http://www.oc.ca.gov/lawlib/

==


 I wish I could offer you more but this is the best potential avenue I
have managed to find when it comes to asking for a change in a
court-appointed lawyer.

 I wish you and your son the very best of luck in pursuing this matter.


Sincerely,


umiat


Search Strategy

combination of search terms relating to Marsden Request or Marsden Hearing
procedures to replace a court-appointed attorney or counsel
California criminal procedures
California criminal law
Orange County Superior Court
California Superior Court
numerous legal research sites for a search for forms, requests, etc.
kencarroll1-ga rated this answer:4 out of 5 stars
Thanks - that is a good start. Hopefully I will be able to find the
additional information I need with the links you provided.

Comments  
Subject: Re: Firing and rehiring a different court appointed attorney (California)
From: daniel2d-ga on 14 Nov 2006 22:39 PST
 
Document everything.   Send certified letters to the attorney. 
Complain to the public defender's office in writing - specify all of
your concerns.  Ask for a meeting in the letter to voice your concerns
in person.
Subject: Re: Firing and rehiring a different court appointed attorney (California)
From: kencarroll1-ga on 15 Nov 2006 09:03 PST
 
The attorney is not an attorney from the Public Defenders Office. He
is an attorney we hired, then ran out of funds, and the court
appointed him counsel.

Would that place him under their juridiction?

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