Journey Through the Sealed Transcript, or Marsden Motions: A “Choose Your Own Adventure” Adventure

“I want a Marsden motion!” my client proclaimed from his seat in the jury box.

When a courtroom is not used for a trial, the jury box is typically used to seat 12-14 inmates, handcuffed in pairs, waiting for their turn to appear on the felony “entry of plea” calendar. The inmate who happens to be handcuffed to my client doesn’t know what a Marsden motion is, but he looks wistfully at the nearby sheriff’s deputy in hopes that he will be unshackled from this man before he has to find out.

When the judge hears the client’s demand, every muscle in his face tenses as he looks at the wall clock and then over at me. “Why can’t you control your client,” the Judge tacitly asks with his glare, “and who told him what a Marsden motion is?”

With an apologetic smile and a shrug, I admit that it was me.

“Sir, I’m sorry you’re not happy with your representation so far,” I had said to my client moments before his audible outburst, “but if you really think that I’m ‘fucking you raw’ because I’m ‘working for the DA,’ then you should tell the judge that you want to make what’s called a Marsden motion and have me fired.”

I told him this because, quite simply, he has the right to know that a Marsden motion is an option a defendant has if his lawyer’s representation is so defective that it effectively violates his right to counsel. Since I work in a county with an exemplary PD system, most Marsden motions are basically an opportunity for the client to lash out a lifetime of problems on the nearest available mammal (and if you’re a PD, that mammal usually happens to be you). I can’t and don’t take it personally.

“Ladies and gentlemen,” the judge intones, “we ask that you leave the courtroom for the next few minutes while we take up this matter outside of your presence.”

And the adventure begins!

One by one, the remaining inmates, lawyers, and gawkers leave. Since a Marsden motion requires a ceremonial Airing of Grievances about the client’s representation, attorney-client privileged communications are often divulged. To protect these, the court room is closed to all but the attorney, the client, and the court staff. The transcript is sealed after the motion concludes.

“Sir, I understand that you want to fire your public defender,” the Judge says, tip-toeing between syllables like someone trying to delay an unpleasant hospital visit by going very, very slowly down the hallway. “Tell me more.”

My client proceeds to tell him more. Much, much more. And I start to grow agitated.

I’m not worried about what my client is saying about me. I’ve been “Marsdened” (it’s a verb in PD jargon) before, and even though part of me wishes some had been granted in order to be rid of particularly unpleasant clients, none have been. What does scare me is the possibility of being found “IAC.” That’s when an appellate lawyer looks over a trial transcript and decides that the guilty verdict was due to “Ineffective Assistance of Counsel.” Being Marsdened is a rite of passage; IAC is more like last rites.

I am agitated because I know that I will likely still be tasked with representing this client when this is over and he is making my job–the job of defending him–even harder. I visualize what the transcript of this hearing looks like and I wish I could strikethrough the portions that I wish he were not saying, out loud, to the judge.

Did I mention I’ve been Marsdened before? Do you want to know what it feels like to sit through a client’s Marsden motion? Then read on and chose your own Marsden adventure:

If your client is accused of a “domestic” charge, proceed to section I.A.

If your client is accused of auto theft and has been talking to the “jailhouse lawyer” at the jail’s law library, go to I.B.

I.A. Judge, this whole thing is ridiculous. My lady wants these charges dropped completely. I also called her last night from the jail and she told me that she wants the “no contact” restraining order dropped. She’s going to come in here and say that she made the whole thing up because she was drunk and mad at me for cheating on her. Also, she’s bipolar. That means that she lies all the time, right? I saw it on “Dr. Phil.”  Anyway, my dump truck public defender is telling me that what she said to police is a “prior inconsistent statement” that comes in as evidence even if she takes it back. But that’s not true, right? He just wants me to plea because he has too many cases.

I.B. Judge, this public pretender isn’t doing anything for me. I told him that I wanted an attorney. I’m entitled to a court-appointed attorney, but they keep giving me public defenders instead. Also, I heard in my dorm unit at the jail that if they don’t bring you to court within 48 hours of your arrest, they have to dismiss the case. Well sir, I was arrested on a Friday, and I know that it was still Friday because when the police pulled me over in that stolen car, I looked at the dashboard clock and saw that it was 11:48 p.m. I didn’t have my first court date until Monday, so my case should be dismissed. At least that’s what I heard.

I also wrote a motion myself; it’s about voluntary intoxication. I read in the law library that being voluntarily intoxicated can sometimes be a defense. Well, I can tell you that I was TOTALLY voluntarily intoxicated up when all this happened. I remember the six-pack, I remember…whatever that stuff was in the pipe they were passing around. I remember having the slim jim and the shaved key, but I don’t remember actually using them to take the car. I do remember speeding away from the police, and I remember trying to swerve around the cop who was trying to stop me, but I don’t remember anything about supposed “threats” I made to “make him my bitch” with his nightstick. There’s more and it’s all in my motion, but this dump truck won’t file it. I think he’s working for the DA. He says that he won’t file  it because it has “incriminating statements,” or because it contradicts the confession that I supposedly gave afterward, that I don’t remember. I don’t know, he can’t seem to get his story straight about why he won’t file it for me.

Also, no one read me my rights when they arrested me. They were supposed to tell me that I had the right to remain silent. That means I get a dismissal, right? … Well, no, they never actually asked me any questions … No, I didn’t actually say anything after I was arrested. But I’m supposed to be read my rights! I need a REAL lawyer who knows these things to get me out of here!

Lifting an eyebrow, the judge looks to me and asks, “Mr. DeGuerre, how do you care to respond?”

If this is your first court appearance with this client, go to section II.A.

If you’ve already discussed each and every one of these things with your client, go to section II.B.

II.A. Your Honor, it is absolutely, positively true that I have not yet done anything for this client. I have not seen him at the jail. I have not called his baby’s mom on his behalf to keep her from throwing out his stuff. I haven’t looked into whether the police search of his pockets was legal because he’s not charged with possessing anything illegal; the charged crime is violent and happened in the police officer’s presence. Quite frankly, I just got this file two days ago; only by breaking the laws of physics could I have gone back in time and done all the things that my client seems to think that I should have done before today. Given that I obey the laws of physics at all times, I trust that I can represent this client to his satisfaction if given…some time, any time, at all.

II.B. Your honor, my client demanded after his first court date to receive his “discovery packet.” He seems to be in continued disbelief that his “discovery packet,” at this stage, consists entirely of the police report that I have reviewed with him several times. He claims the police report has “got nothing” on him because it doesn’t include fingerprints, DNA, or surveillance video; it contains nothing more than statements of witnesses who said that they saw him do it. I explained to him that these are still “evidence.” I explained that public defenders are, in fact, attorneys. I explained that I do not work for the DA simply because I told him what the DA’s offer was. I explained to him that hiring the “real lawyer” that his mother has been talking to may or may not get him a better deal, but that she’s welcome to get a second mortgage to pay his retainer in order to find out.

The judge makes eye contact with each of us one more time. He has the information he needs in order to make a decision.

If this is a judge who, in the past, has threatened to hold you in contempt for objecting during the DA’s closing argument, go to section III.A.

If this is a judge who is deathly afraid of the client deciding to represent himself, go to section III.B.

III.A. Sir, I assure you that Mr. DeGuerre is a devoted advocate. He’s a fabulous attorney, and you’re lucky to have him. The fact that you get his services free of charge is one of those curious luxuries that comes with having a free society. The defendant’s Marsden motion is denied.

III.B. Sir, I completely understand your concerns. It sounds as though Mr. DeGuerre needs to make himself more available to you by phone. Perhaps you should call during his lunch hour, when he is at his desk eating the sandwich that he brought from home. And really, Mr. DeGuerre, when I was a public defender, I saw my clients at the jail before every single court date. You say you got the file late Monday, but today is Wednesday. It doesn’t matter that this was so long ago that the PD’s office had six lawyers and five clients: no excuses.

It also sounds like Mr. DeGuerre can make just a little more effort in finding that transient, homeless witness you say can prove your innocence; you’d be amazed at what public defender investigators can dig up just by knowing that his name is “Mike Something.” I’m also going to suggest to Mr. DeGuerre that he make more efforts to negotiate with the District Attorney; Mr. DeGuerre, you should keep an open mind when the DA tells you that your client is a “monster” who should plead “as charged.” If the DA says that, and you agree, she will not ask for the maximum. You should think of that as a starting place for negotiations! That being said, I will give Mr. DeGuerre leeway to perform his due diligence. We can revisit this issue down the road if we need to. For now, the defendant’s Marsden motion is denied.

Congratulations! You made it! How do you feel?

If you happened to choose III.A. and would like a copy of the proceedings as proof of the only nice thing that judge has ever said to you, then you are out of luck. That record is sealed.

Respectfully submitted,

Norm DeGuerre

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26 comments on “Journey Through the Sealed Transcript, or Marsden Motions: A “Choose Your Own Adventure” Adventure

  1. nidefatt says:

    that was epic. Do you really think IAC is last rites? I generally assume that most everything we do is IAC, though certainly not according to the Supreme Court, which requires nothing more than .. well if a sleeping attorney can do it, presumably you just need a body.
    My office has a pretty strict “fall on your sword” policy for IAC complaints. Duty of loyalty and all that. It’s generally assumed that the old cons who are going down hard will file a bar complaint. You’re just supposed to suck it up, but you know you’re burned for any other job. Ugh. Depressing.

    • Thanks for your comment. I’m glad you enjoyed my post. No, I don’t really think IAC is last rites. Well, I guess it depends on what the error was. It’s something I have in common with clients in that if someone looks hard enough for evidence of wrong-doing, be it the DA or the appellate attorney, they’ll probably find SOMETHING. I’m sure I’ll get IAC someday; it’s bound to happen doing as many trials as we do.

  2. Gideon says:

    Yeah, so my comment was going to query you on IAC. Why are you scared of it? I’ve made it one of my crusades to get attorneys not to be afraid of IAC. Let’s have a conversation.

    • That’s a really good question. Possibly because of what it will do to my self-identity as a smart-ass, hot-shot young PD. Will my colleagues still respect me? Will my wife still find me attractive? Will my mom still love me if I don’t perform perfectly every single time??

      The part about being scared of IAC is an exaggeration for effect. IAC scares me to the extent that it keeps me on my toes and makes me a better lawyer.

      All of my pants have what my tailor calls a “lawyers rip” on the right pocket, due to it getting caught on the chair when I stand up too quickly to object.

      • Nick says:

        I get those on both sides because my county’s counsel chairs are not fat people compatible.
        (Oh and this article make me actually laugh out loud.)

    • Nick says:

      I’m pretty sure the California Supreme Court’s definition of IAC in a criminal case is handing $50 to each juror in open court and asking them to find your client guilty.
      And if they really think he’s guilty, it is harmless error.

  3. Actually, what we’re finding to be the most common source of IAC is failing to object to prosecutorial misconduct, especially during closing argument. It would be a shame if I got IAC for not doing something I enjoy so much.

  4. scribblechic says:

    Unfortunate truths that speak volumes of unwritten norms, but your tone and framework were so enjoyable I didn’t want to reach the conclusion.

    • Thank you for your comment. So glad you enjoyed the post! I do work in the “dark trenches” but what I’m hoping to share through my blog is how “human” those involved in the process are: a process as colossal, mechanical, and impersonal as our criminal justice system.

  5. I had a good laugh at this post. I’m a commissioned police officer as well as an attorney, so I get it from all angles and I appreciate your honesty. The job of a public defender is often thankless, but it’s important that everybody have some defense.

  6. Damn straight. Thank you for your comment.

  7. toad (chris jensen) says:

    Thanks you kindly for the fine article full of information I have needed inside out. I will be sure to pay many visits to all future articles of such good taste. Keep up with the good hard work. And speaking, I have some tiny magic pills that will make you know like a tree. Only two cents minus three for a bottle that will give you much happiness for all to see.

  8. A.K. says:

    Public defender seems like a stressful and thankless job. It seems to me that you have to be committed just to stick with it. Great post, very funny.

  9. Thankfully, I’ve never been in a courtroom for any reason, although I would actually like to be on a jury for a big trial before I croak. I’ve always been fascinated by lawyers & judges. My German surname even translates out to ‘judge’. But, not enough to go to school for it.
    Your post had me ROFL as I also love ‘Choose your own adventures’. Getting labeled with the IAC sounds like bunk, but I guess there’s a need for the label at times.
    Congrats on being freshly pressed!!

    • Thank you for your comment and for your kind words.

      You know, if you want to “witness the excitement” of court proceedings, they are open to the public. Just go to your local county courthouse and if the department door is unlocked, walk on in!

  10. Laugh? Cry? Both.
    A peek inside “evil” may be just like this experience.

    • Yes, yes. All of the above. I make efforts to “notice” my feelings as they occur, and then pass.
      I find that a peek inside “good” sometimes includes tears as well.
      Thank you for taking the time to read my post and leave a comment.

  11. Anonymous says:

    その上で研究| いくつかを少しやっていた | 友人同僚 | そして彼は{実際には私に昼食を買って、彼は笑顔のために私はそれを見つけた{だから|よって|したがって}私は言い換えるてみましょうその:{おかげ|ありがとう}昼食のために?

  12. I really like the “choose your own” idea. It reminds me of an old book that’s exactly like this, i forgot the title or kind of book though. Other than that, it also made me aware of the marsden motion, thanks!

  13. Tara says:

    I only came upon this post after searching for information about Marsden motions. You seem to be a very dedicated public defender. I just want to remind you that not all public defenders are young idealists, and not all provide appropriate representation for clients. Similarly, not all indigent clients are guilty, angry and ignorant. Not all of them have baby mammas. I only hope you aren’t implying that anyone who seeks a Marsden motion is a combative goon – that would be very intellectually dishonest, indeed.

  14. Thank you for reading my post and taking the time to leave a comment. My post was meant to show, with humor, that my job is sometimes thankless. Best of luck to you. I hope the information on my blog can be of some use.

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