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

Defense ex Machina

“For the benefit of the uninitiated, “dump truck” is a term commonly used by criminal defendants when complaining about the public defender. The origins of the phrase are somewhat obscure. However, it probably means that in the eyes of the defendant the public defender is simply trying to dump him rather than afford him a vigorous defense. It is an odd phenomenon familiar to all trial judges who handle arraignment calendars that some criminal defendants have a deep distrust for the public defender. This erupts from time to time in savage abuse to these long-suffering but dedicated lawyers. It is almost a truism that a criminal defendant would rather have the most inept private counsel than the most skilled and capable public defender. Often the arraigning judge appoints the public defender only to watch in silent horror as the defendant’s family, having hocked the family jewels, hire a lawyer for him, sometimes a marginal misfit who is allowed to represent him only because of some ghastly mistake on the part of the Bar Examiners[.]”

People v. Huffman

71 Cal.App.3d 63

Although I love what I do, there are days when it feels like the most utterly thankless post that a lawyer can hold.

I can’t possibly hold this against the clients. Our clients have any number of personal, psychological, medical, and economic problems. Often, we are merely the nearest target when they get the urge to rage against some part of the machine. The client themselves have many, many reasons to distrust their public defender. Here are a few, in order of most ridiculous to the most understandable.

1) The client has been trading stories with a “jailhouse lawyer.” The jailhouse lawyer flatters himself a person of great legal knowledge because he has had three or four “legal inquiries” answered from the staff attorneys at the jail’s in-house legal library. Granted, his legal acumen was not sharp enough to keep him from fellating a 9-year-old, or fracturing a rival gang-member’s skull before stealing his bicycle. However, he knows that all of his misfortunes were due to the fact that his “public pretender” was screwing him. That is why he asserted his Sixth Amendment right to represent himself. Also, representing yourself gives one a sweet supply of postage stamps, which can be traded with other inmates for $3.00 bags of Cheez-its from the jail commissary.

Because, you know, fuck his baby’s mamma for not putting more money on his books.

2) The public defender always tells him that he should plead guilty. Granted, constantly receiving bad news from the one person who is Constitutionally-obligated to be on “your side” is very, very troubling. However, let us not forget that the public defender can (and must) represent everybody who cannot afford a lawyer. This includes the person who confessed to everything on tape (free legal advice: don’t tell your lawyer that “I didn’t do shit” after confessing everything to the police…you need to reverse the order of things). This includes the people who stab a rival gang member in broad daylight, masturbate in front of a bus full of school children, and/or commit a robbery in front of every single one of Best Buy’s many-dozen high-definition security cameras. In short, we don’t have the luxury of dumping the dogshit cases. Private lawyers get to pick-and-choose their clients. We don’t get to decline representation simply because we are tired of giving bad news.

However, this perspective is often not welcome to the individual client. Go figure.

3) The public defender is always so busy, and sometimes doesn’t even talk to me before I see him in court.

This is truly a regrettable state of affairs. Too many public defenders take it for granted that the vast majority of misdemeanor and felony cases are boilerplate. They tend to have the same issues and the same sorts of defenses.

How many different ways can you steal a car? How many different ways can you beat someone up after drinking too much? How many different ways can you be found with meth in your pocket?

Unfortunately, sometimes public defenders forget that every single client is an individual person. For them, their pending case is the most stressful, awful, agonizing part of their lives at that moment. The last thing they want to be told is that their case is “pretty basic” and that cases “like theirs” are worth “X years/months” in custody. Sometimes, us lawyers need gentle reminders (or perhaps more abrupt reminders) that every client we have is an individual who deserves to be treated as such. Even if their case is “basic” and predictable, we shouldn’t necessarily let them know that. Also, assuming that every case of a certain type is “the same” blinds us to the very nuances that we might use to give our clients a better defense.

However, most of the time when our clients complain of issues of “service” they don’t realize that the Public Defender Office is run to provide the very best AND the most efficient legal counsel possible. The customer service is not always first class, but a coach ticket is all they need to arrive at the same exact place. At the end of the day, do you want the lawyer that gives you warm nuts or the one that gets you the best deal?

4) My public defender is a “dump truck” who just wants me to plea.

As sad is it makes me to say it, some public defenders are dump trucks. Burnout is common in any helping profession. They have too many cases, and their supervisor doesn’t stop giving them more simply because they have too many open cases at the moment. Sometimes your public defender is a relic from the days when smart/capable/idealistic lawyers rarely went into public defense. Sometimes they are no longer capable of seeing a client as an irreplaceable individual.

I sorely wish I could fire those people myself. But I cannot.

That being said, so-called “dump trucks” are a tiny minority of the talented, dedicated public servants with whom I have served. And it pains me when I see a defendant proudly “fire” his hard working public defender for some putz who hasn’t tried a case in his entire career.

Sometimes this guy is skilled at giving enemas of sunshine to clients who are desperate for good news, and confuse braggadocio with a realistic assessment of possible results for their case. Even more sadly, sometimes these clients trust this lawyer more because they speak their native language (Spanish, Hmong, Vietnamese, etc) and they assume that one of “their own” will look out for them more closely than the well-meaning white person who keeps them waiting for hours until the court-appointed interpreter arrives.

What kills me is that I and other public defenders CHOSE to be public defenders because we love doing jury trials. If you are truly innocent, or if the state is simply trying to railroad you, your public defender will try your case and do it well, because we don’t need our clients to fork over the $50,000 that a decent private lawyer would charge to do a trial-by-jury. We end up doing DOZENS of them throughout a career, and we love it. Your private lawyer is probably scared shitless because he has never had to actually don his war paint and argue your innocence in front of a jury.

And he definitely hasn’t had to do it for the guilty-as-sin clients that we represent.