Legal Question in Criminal Law in California

Re: How to get the best defense if you only have a PD

The problem with PD's isn't a lack of skill, a lack of dilligence or a lack of drive. Instead, it is a lack of time. Budget constraints prevent PD offices from hiring enough attorneys to handle all of their cases the way a private attorney would. Nothing a defendant can do will change this situation.

A PD who is convinced she is defending an innocent man may put significantly more effort into his case, but your hypothetical client won't get a lot of time with her before trial and may not be able to explain his situation in what little time he does get. His best bet might be to write her a letter carefully setting forth the facts that prove either that he is innocent or that the prosecutor's theory can't be true.

Most defendants aren't skilled writers so, if possible, he should try to get someone on the outside who can visit him, learn about the case and then either write the PD or speak with her in person.

The only other thing I can suggest is that, since some PDs relish a good battle with the prosecutor, a defendant whose case will involve such a battle might get a more motivated PD. It usually isn't possible for the defendant to influence these things, though, and few defendants know enough about the law to figure out whether theirs is such a case.

Re: How to get the best defense if you only have a PD

Clients frequently buy into the stereotype of PD as dump trunk or public pretender. This is unfair to competent PDs and communicating it the PD can never be helpful to the client's cause. I first disabuse the client of the stereotype. Then I make some suggestions to get the PD's attention.

I tell these clients to always ask the PD for copies of everything in the file. If the PD declines to turn over personal notes, that's OK. The client should write a response to the allegations and deliver it to the PD. But there is one drawback to doing this. If the client testifies in contradiction to the statement given the PD, an ethical problem could arise for the PD who has reason to think the client is committing perjury. This drawback may not pose as much of a problem for a client who is factually innocent and whose story remains consistent on the important points.

The client should always make copies of everything. Two copies kept in different locations is even better.

If the PD is not paying attention, the client should insist on a meeting. With some PDs, a great deal of persistence may be required.

If the PD will not respond, a note should be made of each attempt to make contact including the names of the people in the PD's office who know about the complaint or took messages for the PD. If the problem persists, it may be necessary to complain to a supervisor or the head of the office in writing. As a last resort, the client should file a Marsden motion. The mere filing of the Marsden will get the attention of most PDs and suddenly they will talk to you.

The client should write down how the PD responded to a respectfully-delivered complaint or criticism. Then write the PD a letter confirming the understanding reached. Certified letters grab attention. Each time the PD fails to deliver on a promise, a letter should be sent pointing this out and requesting a call. The client should document what information has been given to the PD to build the defense case including names, addresses and phone numbers of witnesses, the identity of documents, or other evidence of any kind.

Record keeping and written correspondence to the PD serves three good purposes.

1. People take what's written down more seriously than what's said to them.

2. If the PD persists in giving bad representation, the letters and notes will furnish more persuasive evidence than testimony alone if a Marsden hearing becomes necessary.

3. If the representation was so bad that the client ended up getting convicted due to the PD's incompetence, the client will have documentary evidence to support a claim of incompetence in a habeas proceeding that may occur long after the representation was over and memories have faded.

The client should be polite in all communications. The client should remember that the writings may turn out to be the critical evidence that persuades a judge to rule in the client's favor when the PDs competence is challenged.

Re: How to get the best defense if you only have a PD

Depends on the PD. It also depends on the private attorney. There are a lot of lawyes that just plain suck, and it doesn't matter if they are PDs or private. I don't think there is a greater percentage of incompetent lawyers in the PDs office.

If you hire the PD's office, you have to be patient and not expect any hand holding. The case will eventually get to trial, and that is when the PD will focus on the client's case. The client will see a big difference in the PD's ability to his or her case once the PD can focus soley on that case.

If you really perceive a problem, speak to the supervising deputy PD.