Can I get a mistrial if my Public Defender does nothing to defend me?

Asked almost 2 years ago - San Jose, CA

My case is a DUI type. I have evidence that I am innocent. I have Hospital test to prove I am innocent. Can I get a mistrial if my Public Defender does nothing to defend me, only tells me to take a plea bargain and tells me the judge thinks that I am a liar? Who do I turn him into? Can I get him disbarred?

Attorney answers (6)

  1. John M. Kaman

    Pro

    Contributor Level 20

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    Answered . If you have a public defender you feel is not doing his or her best for you the best course is to tell the judge you want a Marsden hearing. The judge will clear the courtroom of everyone but court staff and hold a confidential hearing in which you can air your complaints against your public defender. If his or her representation is so subpar as to affect your due process rights the judge will take him off the case. This generally means you are no longer represented by the public defender and will be appointed a private attorney at county cost.

  2. Robert Laurens Driessen

    Contributor Level 20

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    Answered . I agree with Mr. Kaman. A Marsden hearing is your only recourse. The issue is judges very rarely grant them and you will be back where you were with the PD you do not like. Invest your money in a private attorney.
    Robert Driessen

    Mr. Driessen is a former Deputy DA in Orange County with over 8 years of criminal law experience. Nothing stated... more
  3. Douglas Holbrook

    Contributor Level 17

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    Answered . I am afraid that I have to agree to what each of the others have suggested. Your option is a Marsden Hearing. If that does not work, your alternative remedy is to retain private counsel.

  4. Michael Raymond Daymude

    Pro

    Contributor Level 20

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    Answered . "Can I get a mistrial if my Public Defender does nothing to defend me?" -- Aren't you jumping the gun. You have not had a trial.

    "Can I get him disbarred?" -- No. He is doing his job as he sees it.

    As others have suggested, your option is a Marsden. In many, if not most cases, it will backfire. Your best remedy is to retain private counsel or live with the public defender.

    BTW, depending on where you are at in the proceedings, the PD you presently have may not be the PD who represents you at trial.

    I am licensed in California only and my answers on Avvo assume California law. Answers provided by me are for... more
  5. Tai Christopher Bogan

    Pro

    Contributor Level 18

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    Answered . You can request the Marsden hearing as mentioned by Mr. Kaman. You could also hire an attorney to help you with this and fight for you. Or you could do both.

    The above information does not establish an attorney client relationship nor is it meant to provide legal advice.
  6. Linda Charman Hayes

    Contributor Level 7

    6

    Lawyers agree

    Answered . The Santa Clara County Public Defender Office has supervisors for each team of lawyers. You could schedule an appointment with a supervisor to discuss your concerns. It would help if you would not be angry when you went. I suggest writing out a list of what you wish to bring up, so that you can remember, and having someone else drive you so that you can remain calm. There is always the chance that you did not understand what the lawyer was telling you in court. All lawyers are under an obligation to tell every client what the offer is, and what the discussions were with the court. The Marsden hearing, which has been suggested by my esteemed colleagues, is an option but is rarely successful. You might want to consider seeking a second opinion from private counsel.

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