Marsden Motion as Illegal Attempt to Create Conflict

Under People v. Marsden (1970) 2 Cal. 3d 118, a defendant represented by appointed counsel may not discharge counsel, but may ask the judge to assign substitute counsel when defendant’s right to effective representation is jeopardized by the existing representation. Id., at 123.  The trial judge may not summarily deny a Marsden motion, but must conduct an inquiry into the circumstances underlying the request. Id., at 124.

In People v. Orey (2021) 63 Cal. App. 5th 529, 567-568, the Fourth Appellate District Court held that a defendant cannot use his, her, or their counsel’s decision not to file a motion to dismiss to manufacture a conflict of interest for the purpose of seeking substitute counsel under a Marsden motion.

This legal framework is relevant to better understanding the case of Ismael Michael Carter arising out Yolo County and then proceeding to the Third Appellate District Court.

On May 29, 2007, a petition to commit Mr. Carter as a sexually violent predator was filed.  About a month later, the parties stipulated that Mr. Carter met the criteria for such commitment and the Yolo County Superior Court judge ordered Mr. Carter transported to Coalinga State Hospital.  Mr. Carter then waived his right to a speedy trial for the opportunity to educate himself and receive treatment.

From October 2007 until November 2017, trial setting conferences were held and continued at the request of one side or the other, or both, but mostly by the public defender on behalf of defendant, for various reasons.

In 2019, Mr. Carter filed a Marsden motion in pro per.  Mr. Carter sought appointment of substitute counsel because his current counsel was responsible for delays in the trial date.

At the same time, Mr. Carter filed, also in pro per, a motion for dismissal under People v. Superior Court (Vasquez) (2018) 27 Cal. App. 5th 36 and People v. Litmon (2008) 162 Cal. App. 4th 383 for violation of his right to a speedy trial, noting that he had been at Coalinga Sate Hospital for twelve years.

The judge denied the Marsden motion based on the delays of getting to trial.  As to the motion to dismiss, the judge also denied the motion, stating that for his public defender to represent him on the motion, she would have to argue that she was not diligent and had breached her ethical duties to the client to pursue trial in a timely manner (which Mr. Carter testified did not happen, on direct examination by the judge during the hearing on the motion), which would create a conflict of interest. 

Finally, on January 20, 2020, the court set a jury trial date for May 11, 2020.  Further continuances pushed the trial date to June 21, 2021.

Before this trial date, the public defender assigned to Mr. Carter then moved to continue the trial date, telling the court that she had recently “inherited” the case and had much to learn.  The People did not object and the judge continued trial again to September 2021.

At trial, Mr. Carter waived a jury trial and at the close of the trial, the judge ruled that the People had proven beyond a reasonable doubt that Mr. Carter was a sexually violent predator and the judge ordered him committed for an indeterminate term.

After this, Mr. Carter filed an appeal to the Third Appellate District, arguing the trial court abused its discretion in denying his two motions described above.

The Third Appellate District affirmed the trial court.  It found that Mr. Carter’s testimony at the Marsden hearing showed he was not embroiled in such an irreconcilable conflict with his public defender that ineffective representation is likely to result.  Moreover, the appellate court noted that Mr. Carter’s motion to dismiss was functionally a Marsden motion on a quasi-Marsden motion because it created a conflict between the public defender, who did not believe she and the public defender’s office had failed to diligently pursue a timely trial on Mr. Carter’s behalf, and Mr. Carter, who maintained he had been denied a speedy trial. 

Therefore, to pursue the motion to dismiss, substitute counsel would be required and was therefore tantamount to a Marsden motion.  Consequently, the judge had discretion to deny Mr. Carter’s motions as an impermissible attempt to manufacture a conflict of interest.

For more information about Marsden motions, please click on the following articles: