How to Fire Your Public Defender in California

Need to initiate a Marsden motion and hearing? Call the Helfend Law Group today at 800-834-6434 for help

Public defenders provide an invaluable service to the public. They ensure that every person, regardless of their financial means, has access to a fair and skilled defense.

Unfortunately, they are too often overworked and under-resourced.

According to the ACLU of Southern California, attorneys in the Los Angeles County Public Defender’s Office sometimes carry 2x to 3x their recommended case load. This can lead to poor communication, limited preparation time, and the inability to give each case the attention it deserves.

Rather than getting a fair and skilled defense, clients often feel like they’re being pressured to take unfair deals as they are rushed through the system.

However, if you are unhappy with your court-appointed attorney, there are options available to you. You can fire your public defender through a process known as a Marsden motion and hearing.

What is a Marsden motion?

A Marsden motion is a defendant’s formal request to replace their court-appointed attorney, due to inadequate or ineffective representation. Importantly, a Marsden motion is the only legal avenue for a defendant to discharge and replace their public defender in California.

However, we should note here that you don’t need a Marsden motion to fire a private attorney.

In California, defendants may file this motion if they believe their attorney is not meeting the standards required for a fair defense.

Typical grounds for a Marsden motion include:

Inadequate representation or ineffective assistance

This may involve failure to investigate evidence, lack of communication, or insufficient preparation for court. For example, if a public defender repeatedly ignores a defendant’s request to interview witnesses or fails to prepare a defense strategy, this could be considered ineffective assistance.

In cases where the attorney’s actions directly harm the defendant’s case — such as missing filing deadlines, making procedural errors, or giving incorrect legal advice — a Marsden motion can argue that legal malpractice has compromised the defense.

Irreconcilable conflict

If a significant conflict between the defendant and attorney makes effective representation impossible, this can also justify a Marsden motion.

Examples include situations where the attorney openly dismisses the defendant’s input or where a complete lack of trust has developed, interfering with open communication.

When to file a Marsden motion

A defendant can file a Marsden motion at any stage of the criminal case if they believe their court-appointed attorney is not providing adequate representation. This includes:

  1. Pre-Trial Phase – During the initial phases of the case like arraignments, a defendant may file a Marsden motion if issues such as lack of communication or inadequate investigation arise.
  2. During Trial – A Marsden motion can be filed at any point during the trial if new issues with representation arise. If a defendant feels the attorney is unprepared for cross-examinations, is not objecting when appropriate or is failing to advocate vigorously, the defendant can request a Marsden hearing.
  3. Post-Trial Phase – Even after a verdict, a defendant may file a Marsden motion before sentencing if they believe ineffective representation affected the trial outcome. This can be particularly relevant if the attorney has shown inadequate effort in preparing arguments for sentencing or in filing post-trial motions that might impact the sentence.
  4. During Sentencing or Post-Conviction Proceedings – In some cases, defendants file Marsden motions during sentencing hearings or in connection with post-conviction matters, such as motions for a new trial.

Getting a new attorney for your case is a multi-step process that starts with evidence gathering.

However, before you get started, note: California courts do not grant Marsden motions for minor disagreements or decisions where the attorney may have chosen a different strategy than the defendant desired.

The judge will look for evidence of genuine lack of adequate representation, conflict, or malpractice.

1. Prepare your grounds for filing

Defendants should have clear, specific reasons for needing a new lawyer.

Examples include lack of preparation, failure to investigate the case adequately, lack of communication, failure to file necessary motions, or any ongoing conflict that makes effective representation impossible.

It’s helpful to have examples or specific incidents that support these claims.

2. Request a Marsden hearing in court

To initiate the motion, the defendant must inform the judge, in open court, that they wish to file a Marsden motion.

This request triggers a confidential hearing, during which the defendant can explain their reasons for wanting to replace their public defender. This hearing typically includes the judge, the public defender, the defendant, and court staff; the prosecutor is generally not present to protect attorney-client confidentiality.

3. Attend the Marsden hearing

During the Marsden hearing, the defendant presents their case, explaining why they believe the public defender’s representation is inadequate.

Defendants should focus on specific examples that demonstrate ineffective assistance or a conflict affecting the attorney-client relationship. The public defender will have an opportunity to respond to these complaints, providing their perspective to the judge.

4. The judge will make a decision

After hearing both sides, the judge will either grant or deny the Marsden motion.

If granted, the judge will remove the public defender and assign a new one. However, if the defendant prefers, they have the option to hire a private attorney at their own expense.

If the judge denies the motion, the current public defender remains as the defendant’s counsel.

While this means the court found no substantial issue with the representation, you can still work with your attorney to improve communication or address specific concerns. However, further options for changing representation in the case may be limited unless new circumstances arise.

Can I fire my public defender and represent myself instead?

Yes, you can choose to fire your public defender and represent yourself, but this decision comes with serious responsibilities and risks.

To proceed, you must also request what’s known as a Faretta hearing, named after the Supreme Court case Faretta v. California, where you can ask the judge for permission to waive your right to an attorney and proceed pro se (representing yourself).

During the hearing, the judge will evaluate whether you understand the consequences of self-representation, including the complexities of legal procedures and the potential challenges you may face in court.

Keep in mind that representing yourself can be extremely challenging, especially in criminal cases where the stakes are high and legal expertise is critical. Unless it’s a very simple case, it’s almost guaranteed that it won’t go well.

The court strongly encourages defendants to have qualified legal counsel, as a trained attorney can provide essential support, advice, and advocacy.

Facing criminal charges is an overwhelming and high-stakes experience, and having the right legal defense can make all the difference. If you feel that your public defender isn’t providing the representation you need, or if you’re seeking experienced private counsel to take over your case, turn to the Helfend Law Group.

With over 40 years of criminal law experience and a track record of successfully defending thousands of cases, attorney Robert M. Helfend is well-equipped to deliver a vigorous, strategic defense.

Call the Helfend Law Group today at 800-834-6434 to schedule a free case evaluation.