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

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?

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Attorney answers 6

Best Answer
Posted

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.

Asker

Posted

Want to thank you all for your input. He is my trial lawyer and a close friend to the previous PD who also told me to take "The Deal" neither has called me to go over anything. Both have told me to plead guilty even thought they both knew I was not so. It is like they want everyone to plead guilty no matter what. When they first had me go to court they called me by my name I hadn't used in 20 years. One lawyer told me I should have just walked out but I was honest and told the court even though they had the wrong name, gave me the wrong paper work when released at the station. Had the wrong driver's license and the list goes on and on. . . . Anyway thanks again, now all I have to do is figure out how to start the Marsden hearing.. THANKS!

John M. Kaman

John M. Kaman

Posted

You start it by telling the judge you want it. Speak up loudly and clearly as soon as you are called to the podium.

Asker

Posted

Thanks You are awesome!

Asker

Posted

Oh by the way (and sorry to ask), but do you know of any case history on where a PD or other defense attorney, told his client that the judge thought he we lying and it some how led to a new lawyer for the defendant? Again, THANK YOU so very much! I now feel that I might actually have a chance at real justice!

Posted

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 on this site shall in anyway be construed as legal advice, or as creating any attorney client relationship. If you would like to hire Mr. Driessen, feel free to contact him at www.theocduiguy.com.

Posted

"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.

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Asker

Posted

Thank you for your honesty, it is well taken. Right now I do not have the money to go with a private lawyer, By the way the night I was released the police made me find my own way home, as they took my car from me, and while at the train station I was hit by a train. I woke up in the hospital with all kinds of problems. I can't work because of my condition. So, no money for a good lawyer. I sometimes just can't believe this has all happened. Thanks again.

Michael Raymond Daymude

Michael Raymond Daymude

Posted

Sorry to read of your troubles. BTW, there is an interesting and famous tort case entitled Palsgraf v. Long Island Railroad involving a train, an injured plaintiff, and a place named Hobo Hollow. You might find it an interesting read because of your accident. A good plea bargain is better than losing a case at trial -- always a possibility no matter your evidence because the people always have evidence that can prove your guilt if accepted by the jury.

Posted

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.

Posted

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.

Posted

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.

Asker

Posted

First off Thank you for your help! Actually I have and both lawyers have said this should have never even gone this far! There are a lot of details I have not made public i.e. on this blog that would blown your mind.... I have NO $$ for a good lawyer so I am stuck with a PD that really do not care if I am innocent or guilty - they seem to want an easy path that makes me say I am guilty so they save the government $$. You know, I take the easy way so I do pay a few $$ and do some public service whatever. The fact is I am innocent! Now when can this government that I have been paying $$ to for the last 50 years actually defend me? I am sorry, but this is not a good thing and no one seems to get it. All I hear is go get a good lawyer - well if I could afford one I would, the real question should be, why do I have to pay for a good lawyer when I have already paid for one over the last 50 years of paying taxes??? I am frustrated because the system only makes the elected district attorney look good and the PD a weak " I want to be a DA someday when I grow up" not effective. Who pays??? I do! and is true justice served? NO! Thanks again Linda, I really do appreciate your help.