20. Substitute Counsel (Marsden)
The following sample Motion to Substitute Counsel (Marsden) must be properly formatted with header information, line numbers, page numbers, etc. before being used in any court.
TO THE COURT, THE DISTRICT ATTORNEY, AND COUNSEL FOR DEFENDANT: PLEASE TAKE NOTICE that at the date and time indicated above, or as soon thereafter as the matter can be heard in the above entitled court, the defendant will move the Court to substitute defense counsel or, in the alternative, to conduct an in camera hearing so that Defendant may assert other grounds for relief.
The motion will be based on this notice of motion, the memorandum of points and authorities served and filed herewith, on all the papers and records on file in this action, and on such oral and documentary evidence as may be presented at the hearing of the motion.
By Don Dan, Defendant
POINTS, AUTHORITIES, AND ARGUMENT
Defendant requests substitution of attorney based on ineffective assistance of counsel, conflict of interests, a breakdown of the attorney/client relationship, and/or because counsel and defendant have become embroiled in an irreconcilable conflict.
To safeguard the privilege against self-incrimination, as guaranteed by the United States Constitution and the Constitution of the State of California, Defendant requests an in camera hearing, or in the alternative, a hearing in the courtroom with the District Attorney or his or her representative excused, to submit additional reasons for wanting new defense counsel appointed.
“A defendant may be entitled to an order substituting appointed counsel if he shows that, in its absence, his Sixth Amendment right to the assistance of counsel would be denied or substantially impaired. The law governing a Marsden motion is well settled. When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.”
(People v. Memro (1995) 11 Cal. 4th 786, 857, internal citations and punctuation omitted.)
This Court cannot find that counsel’s representation is adequate based solely on the record because not all matters related to counsel’s representation are found in the record.
“When inadequate representation is alleged, the critical factual inquiry ordinarily relates to matters outside the trial record: whether the defendant had a defense which was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choices of trial tactics and strategy.” (Brubaker v. Dickson (9th Cir. 1962) 310 F. 2nd 30, 32.).