I'm going to disagree with my learned friends on the California Court of Appeal who recently ruled in a case involving a Crips gang member in Riverside, who got his third strike and was sentenced to 25 years.
I don't care that this mobster got 25 to life for selling cocaine. What I do object to is the appellate justices, in ruling to uphold his conviction, also setting a precedent that encourages lazy lawyering.
Here's what happened. The man was arrested and assigned an attorney. Before trial the defendant decided his lawyer wasn't up to snuff and filed a "Marsden" motion which allowed him to ask the judge to let him fire his lawyer. The judge rejected the request but again, well before trial, the gangster filed a second "Marsden" motion in a note to the judge, saying he wanted a hearing to show why his attorney should be canned. The judge ruled he "would hear the motion on April 27th."
As often happens in California's bulging-to-to-point-of-breaking criminal courts, the guy's trial was postponed many times. At first, every delay was noted in the court's official record, stating that a "Marsden" hearing was to be held when the trial started. The first trial date rolled around and the defense attorney asked for a delay, and in the court's official record the clerk wrote, “Jury Trial / Marsden Motion to May 3." Several more continuances were approved by the judge, and each time the need for the "Marsden" hearing was duly noted in the record. However, on June 14th when the trial was rescheduled for June 21st, for the first time the court's official record didn't mention the "Marsden" hearing. Subsequently, the trial was postponed three more times -- July 7th, August 16th and August 20th -- and none of the minute orders from these court proceedings stated anything about a "Marsden" hearing. The defendant attended each of the court sessions.
Finally the trial got underway, and the judge began: “We’ve resolved most of the issues that counsel had brought before us. There was a couple of issues that counsel were thinking about, and so this is the time. If anybody has anything else that they want to say, put it on the record, make a pitch, or whatever. So feel free.” The judge never used the word "Marsden." The ignorant defendant "remained silent."
Here is what the appellate justices said in their unanimous ruling: "Defendant raised the Marsden issue by filing a handwritten motion in April 2010. However, he never again brought the matter to the trial court’s attention despite having been present in court a dozen times before his trial began. The trial court’s failure to conduct a hearing on the motion appears to have been the inadvertent result of the repeated continuances. ... Defendant had the duty of bringing his motion to the trial court’s attention at a time when the oversight could have been rectified. We conclude defendant’s failure to raise the issue before the matter proceeded to trial constituted abandonment of his claim."
So they're blaming the dumb gangbanger. How about his dumb lawyer who knew his client wanted to fire him but blithely neglected to remind the judge about the pending Marsden motion? How about the dumb judge who knew the guy wanted to fire his lawyer but somehow forgot? And how about the dumb court clerk who stopped writing the word "Marsden" in the official court records? We won't dump on the prosecutor who understandably didn't want to stick his nose in it. The appellate court lets them all off the hook, blaming the defendant who knows less about the judicial system than any of them.
The ruling coddles the man's attorney and as a result encourages laziness by lawyers who "forget" to carry through on their clients' wishes, however distasteful and self-afflicting. This ill-advised precedent also pardons sloppy record-keeping by our courts.