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  #1  
Old 06-30-2013, 11:36 PM
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Hi ladies, I could use some help here. My man goes to court in 11 days but he is really wanting to fire his public defender. How would he go about doing that? He wanted me to look it up online but I really didn't find too much info. Does he ask the judge? What's the process?

It's the same PD that he had last year when he was going through all the process. I guess he got a letter from her the other day saying that it's in his best interest to take the offer that the state offered him, but he does not want to. Also I guess last year he got cheated out of 30 days time served meaning he would have gotten out of prison a month earlier but she would not file a new mittimus in order for that to happen.
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Old 07-01-2013, 02:06 AM
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These are questions that could best be answered in the "Legal Forum", so I'll move your thread so you can get answers.
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Old 07-01-2013, 07:32 AM
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Yes the judge has to approve any change in lawyers, so he will have to convince the judge, with valid (for the judge) reasons why. If the case is nearing a conclusion, many judges are not willing to start over from the beginning with a new attorney.
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Old 07-01-2013, 07:44 AM
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He doesn't have to take the PD's advice. He can go to trial. But without knowing ant case details, there's no way to know if the PD is giving good advice or not.

A PD would like to win cases, if not for the client, at least for their own record. So I wouldn't think they'd be giving that advice unless it was their best assessment.

It would be far worse for him to be told to fight it when the advice SHOULD have been to take a deal. It's not the PD that will be going away.

Looking for a lwayer that will tell you what you want to hear is a disappointment waiting to happen.

Best of luck.
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Old 07-01-2013, 10:04 AM
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If they feel that it is in his best interest to take a deal, then more likely than not, if he goes to trial, he will blow it and be looking at triple the time. Unless he is 100 percent innocent with data and witnesses to back it(and even then a trial is a crap shoot), going to trial is usually a mistake.A lawyer knows what a jury will buy and the evidence against him. He seems like he is just not liking the numbers. Thats not a reason to get a new attorney. An attorney can only work with what they have. If he did something, there may not be much you can do to reduce time.
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Old 07-01-2013, 10:54 AM
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Listen, even when I know that my client is adamantly opposed to any sort of plea deal, I have to present him/her with that deal. It might be pro forma, and my client may laugh or tell me, "I told you no plea", but I HAVE to present the proposed plea to him/her. I also tell him/her whether it's a good deal based on my experience with that State's Attorney, that judge, and in light of the evidence that the State has disclosed through discovery. It would be completely unethical for me to withhold a plea offer to a client.

Now, as to your man firing his PD - yeah, he can do that. He has to have a legally valid reason. Simply saying he doesn't like his PD won't cut it. Further, if he's really far into the process the likelihood of a substitution of counsel decreases dramatically. He should also know that he cannot delay things by repeatedly asking for new counsel. One firing, sure, he'll probably be able to do that, provided it's not the day before trial or something. Two firings, and he's going to start having problems. The third appointed attorney he tries to fire? Yeah, good luck. Anyway, with that in mind he should really think about it because like in any profession, there are good lawyers and there are bad, and he may just go from a decent PD to a bad court appointment.

Now, as to grounds, he needs to be able to substantiate that there's an inability to communicate or in some other way and impediment to his being able to aid in his own defense. Simply not liking a person won't get him there - we've all had to deal with people we'd never invite home for dinner. So, the impediment has to seriously hamper communication and therefor the defendant's ability to aid in his own defense. He can write something up and title it something along the lines of "Motion to Substitute Counsel" or he can communicate to the judge verbally at his next court appearance that his PD no longer represents him.

He should be aware, the judge will try to work out any apparent conflict, but if he stands his grounds, new counsel will be appointed (again, provided he's not a day or so away from trial).

And remember, his PD HAS to convey all plea offers to his/her client. S/he also must give an opinion about that plea deal. Your man has the ultimate right to refuse, but he can also have his attorney counter the offer with something different.
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Old 07-01-2013, 11:36 AM
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Thanks for the info everyone! I'm going to let him know what everyone has said. He's not TOO far into the process, it's been like 2 and a half months now. July 12 is his pre trial, his last one was May 30 but that's when they offered him the deal they did which was 3 years and he does not want to take that. He wants to get as little time as he can without going to trial. As far as I know his PD did not counter offer anything, they actually continued the case because they were trying to get him into drug court but that was not approved. The letter he got from the PD said that drug court and probation are not an option and she thinks it's best to take the 3 years. He is trying to get around a year in jail though that's why he does not want to take the 3 years. I have tried to tell him to just take the 3 years because that's only a year and a half (in IL they cut the time in half) and then he will have the time served in jail to reduce the sentence more but he does not want to do that. Ultimately it's his decision to make so I guess I'll just have to wait it out and see what happens at this upcoming pre trial.
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Old 07-01-2013, 11:52 AM
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He can file a Marsden Motion. People v. Marsden (1970) 2 Cal.3d 118.
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Old 07-01-2013, 01:01 PM
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Just to say it, he seems to think that his sentence has something or anything to do with what he wants. He's not price shopping for a car. It would be nice to be able to commit a crime, and then help decide your own sentence. Kind of a self-service system

The DA doesn't have to come back with any other offer. You never know. the DA might, at the last minute, come up with a better offer. On the other hand, the DA might decide to let him know who is running the show and go to trial. Then 3 years might look like a weekend. He can roll the dice if he wants, to, but if the DA stops playing, he loses.

To want to replace the PD because he's not trying to bargain a deal isn't likely to get the judge all stirred up.

Best of luck

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Old 07-01-2013, 04:30 PM
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He can file a Marsden Motion. People v. Marsden (1970) 2 Cal.3d 118.
This makes great sense in California. Filing a Marsden Motion in Illinois will just get people looking at you like you're crazy. While the process in Illinois is similar to what you do in CA, it's not the same.

Further, if you're not up to writing a motion to begin with, like say a client who cannot write or find the IL equivalent of a Marsden, then an oral motion in open court will be just as effective. But, you have to stick to your guns - if you tell a judge, "this attorney is not my attorney", you can't start turning to that attorney for help with answering the judge's questions.
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Old 07-01-2013, 04:36 PM
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Thanks for the info everyone! I'm going to let him know what everyone has said. He's not TOO far into the process, it's been like 2 and a half months now. July 12 is his pre trial, his last one was May 30 but that's when they offered him the deal they did which was 3 years and he does not want to take that. He wants to get as little time as he can without going to trial. As far as I know his PD did not counter offer anything, they actually continued the case because they were trying to get him into drug court but that was not approved. The letter he got from the PD said that drug court and probation are not an option and she thinks it's best to take the 3 years. He is trying to get around a year in jail though that's why he does not want to take the 3 years. I have tried to tell him to just take the 3 years because that's only a year and a half (in IL they cut the time in half) and then he will have the time served in jail to reduce the sentence more but he does not want to do that. Ultimately it's his decision to make so I guess I'll just have to wait it out and see what happens at this upcoming pre trial.
To me, it sounds like your man isn't happy with the offer. Changing attorneys will not get that offer changed. Changing attorneys will cause a delay in what's going on. Further, a judge is going to look at the offer, the fact that the PD tried to qualify your guy for drug court, and has apparently performed his/her services to this point fairly diligently. With that in mind, he runs the risk of pissing off both the judge and the state. That 3 years may look like a field trip if he continues on with the idea that his PD isn't doing a good job because the offer isn't what he wanted.

fwiw, as an attorney, I cannot counter offer until I've heard, "yes, or no" from my client as to the original offer. Further, I cannot counter offer unless I know my client is willing to accept what I'm countering. A counter offer voids the original offer, taking it off the table. Countering with an offer and finding out my client won't even hear of it is just a waste of everybody's time and good faith.
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Old 07-01-2013, 05:10 PM
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Dude was on parole, has been to prison at least one time prior and has been to jail multiple times. All things considered, 3 years is a good deal.
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Old 07-01-2013, 05:18 PM
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This makes great sense in California. Filing a Marsden Motion in Illinois will just get people looking at you like you're crazy. While the process in Illinois is similar to what you do in CA, it's not the same.

Further, if you're not up to writing a motion to begin with, like say a client who cannot write or find the IL equivalent of a Marsden, then an oral motion in open court will be just as effective. But, you have to stick to your guns - if you tell a judge, "this attorney is not my attorney", you can't start turning to that attorney for help with answering the judge's questions.
Very well said. If you don't know how to write one or speak effectively to a Judge, you definitely can't turn to the PD your about to fire, and ask for help.
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Old 07-01-2013, 05:32 PM
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I totally agree. 3 years is not all that bad because he would only be doing like a year once you cut it in half and get time served but he does not want to agree with it. He wants to pretty much keep continuing it until the DA gets tired of him and offers like a year in county. I have told him many times to just take the 3 years but he won't hear of it. I just really hope that the DA doesn't get mad and take him to trial. But like I said it's pretty much on him, I can't tell him what to do.
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Old 07-01-2013, 08:17 PM
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Quote:
Originally Posted by Purplegirl1008
Hi ladies, I could use some help here. My man goes to court in 11 days but he is really wanting to fire his public defender. How would he go about doing that? He wanted me to look it up online but I really didn't find too much info. Does he ask the judge? What's the process?

It's the same PD that he had last year when he was going through all the process. I guess he got a letter from her the other day saying that it's in his best interest to take the offer that the state offered him, but he does not want to. Also I guess last year he got cheated out of 30 days time served meaning he would have gotten out of prison a month earlier but she would not file a new mittimus in order for that to happen.
We tried that and da judge told us in front everyone" well if u do that I will make sure u get the most time available...." We was shock and we never was able to fired her...den after all I did sum research and found out the reason judge was a bitch is because if u fires a pd u Ruin her ..his...reputation for ever

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Old 07-01-2013, 08:25 PM
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I totally agree. 3 years is not all that bad because he would only be doing like a year once you cut it in half and get time served but he does not want to agree with it. He wants to pretty much keep continuing it until the DA gets tired of him and offers like a year in county. I have told him many times to just take the 3 years but he won't hear of it. I just really hope that the DA doesn't get mad and take him to trial. But like I said it's pretty much on him, I can't tell him what to do.

You won't like what I have to say but it may help someone else so - It sure sounds like he is in a big hurry to get out and get high so under the circumstances understand he will not be happy with any sentence he receives... I'm just sayin'
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Old 07-01-2013, 09:35 PM
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You won't like what I have to say but it may help someone else so - It sure sounds like he is in a big hurry to get out and get high so under the circumstances understand he will not be happy with any sentence he receives... I'm just sayin'
I have to strongly disagree with you. He is not in a big hurry to get out and get high. He just does not want to go to prison because he knows that I probably won't be able to come visit him because I have no car and his grandma most likely won't want to drive to see him. He lives for our visits and wants to keep getting them. He already signed releases to get his medical records to prove how many times he has been to the hospital so he won't be able to hospital shop like he used to.

He is tired of only caring about drugs and pushing away the people he loves and cares about. I believe him that he wants to stay sober. And if he doesn't, then he will be doing it single because I will not stick around and he will lose me forever.
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Old 07-01-2013, 09:44 PM
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I totally agree. 3 years is not all that bad because he would only be doing like a year once you cut it in half and get time served but he does not want to agree with it. He wants to pretty much keep continuing it until the DA gets tired of him and offers like a year in county. I have told him many times to just take the 3 years but he won't hear of it. I just really hope that the DA doesn't get mad and take him to trial. But like I said it's pretty much on him, I can't tell him what to do.
This is an amazingly bad strategy. The more he tries to continue a simple drug matter the more pissed the judge is going to get for having an easily reconciled case on his docket for way too long. The more pissed the judge gets, the more likely the SA is going to say, "screw it - he wants a trial, he's getting a trial, no more offers" He needs to realize that his strategy is the quickest way to getting consecutive max sentences for each and every count. I've practiced in IL. Judges hate having their these types of cases clogging up their docket for no good reason.

As stated, his PD has already been pretty responsive and a judge is going to look askance at an attempt to replace the PD for whatever reason he comes up with. He'll have one shot with that, and only if he does it right. That will delay things by a month, maybe two. After that, he's going to have to 5h!t or get off the pot - take a deal (and if the SA decides there was no good reason for a sub of counsel, expect that deal to be worse than the 3 years offered), or a trial date will be set.

He's setting himself up for doing a good bit of time in prison. Delays charged to him, such as requesting new counsel, tolls any speedy trial demand, so there's NOTHING the state loses by allowing him to play these games. The judge, however, gets pissed when simple matters stay on his/her docket longer than average. And the judge gets pissed at the person causing unnecessary delay, especially for the sake of delay.

You best tell your man that he's being incredibly stupid if he really wants to stick to the plan of delay and hope they forget about him. Delays he causes, by motion, by getting new counsel, by illness, etc, toll his speedy trial and give the State their leisure to put on the a really great case because they're being screwed around, too.
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Old 07-01-2013, 11:41 PM
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Yourself, this is not a drug case. His charge is felony retail theft, a class 3 felony here in Illinois.

I agree with you though. I just hope he doesn't piss off the judge. Although the times I have gone to his court dates the other people who were there for court seemed to have their cases continued all the time. I don't want to say that it's routine here in IL but that's how it seems to me. I looked at his past cases and it's usually 5-7 months before they even reached a deal in them.

He definitely needs to agree to something though. I want to just get this whole sentencing thing over so I know how long I will have to wait for him.
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Old 07-02-2013, 08:44 AM
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It seems to me that half of 3 years, with credit for time served, is already one year left to do. What he really wants is to walk out of the courtroom and go home, which might be possible with a sentence of 1/2 of a year instead. It sounds like the prosecutor isn't willing to let that happen, and unless they change their mind, it won't.
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Old 07-02-2013, 09:07 AM
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It seems to me that half of 3 years, with credit for time served, is already one year left to do. What he really wants is to walk out of the courtroom and go home, which might be possible with a sentence of 1/2 of a year instead. It sounds like the prosecutor isn't willing to let that happen, and unless they change their mind, it won't.
I know but he is afraid that they will still make him go to prison for that year. But yeah basically he is trying to get a year or 9 months in jail. It's really on him though and I guess we will just have to see how his next few court dates go, and if they don't come down any he might have to take the 3 years. Hopefully on the 12th they will offer him something lower.
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Old 07-02-2013, 09:35 AM
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I know but he is afraid that they will still make him go to prison for that year. But yeah basically he is trying to get a year or 9 months in jail. It's really on him though and I guess we will just have to see how his next few court dates go, and if they don't come down any he might have to take the 3 years. Hopefully on the 12th they will offer him something lower.
Wow, I really have to say, for him to think he's going to run the court system and influence the DA from a jail cell is the height of arrogance.

Does he think lawyers don't like trials? They will trot him into the courtroom with no deals on the table so fast he won't know what hit him. All he has to do is be a thorn in their side.

He's right about one thing. They will get tired of him and do something about it. But I doubt it'll be to give in to his will, apologize for the delays and send him home.

Best of luck. No matter how this case turns out, I think you're going to have your hands full with this one.
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Old 07-02-2013, 09:36 AM
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Yourself, this is not a drug case. His charge is felony retail theft, a class 3 felony here in Illinois.

I agree with you though. I just hope he doesn't piss off the judge. Although the times I have gone to his court dates the other people who were there for court seemed to have their cases continued all the time. I don't want to say that it's routine here in IL but that's how it seems to me. I looked at his past cases and it's usually 5-7 months before they even reached a deal in them.

He definitely needs to agree to something though. I want to just get this whole sentencing thing over so I know how long I will have to wait for him.
Yeah, continuances are pretty common, but for a reason. I'm assuming the drug court his PD was looking into was TASC (treatment alternative to street crime) and that he didn't qualify. I'd assume that part of the reason that he didn't qualify was because of other offenses.

If he wants to piss off a judge beyond anything, he just needs to continue it out so that it's still active on his next reporting period.

A class 3 felony is 3-5 years in prison. A class 4 is 1-3 with a preference for probation if at all possible. I'm taking it the amount in question is not negligible or they wouldn't go for that 3 years. I'm also taking it it isn't his first time through this system or he would be looking at a class A. Assuming he's a repeat customer for this type of conduct, he best get his mind around the fact that continued misconduct of the same type means a stronger sentence and a higher charge each and every time. He's already worn out his class As, he's already been through his class 4s, now he's in class 3 and they will have no reason to go easy on him. Class 3's are 3-5. 3 years is the lowest end of that range.
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Old 07-02-2013, 09:43 AM
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Purplegirl, you say that he will get a year and a half. If this goes to trial, and you said he's looking at 3 years, he could be looking at doing his full 3 years. Yes?

I don't know how it works in your state, so someone please come along and correct me if I'm wrong.
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Old 07-02-2013, 09:44 AM
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One other consideration is that the 3 year plea offer is not a guaranteed fall back position that will always be available to him. It can be withdrawn at any time, and his only remaining options might be to plead guilty, or go to trial. Counting on the benevolence of a prosecutor is extremely risky.

It's up to him though, since he will be the one who has to do the time.
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Last edited by fbopnomore; 07-02-2013 at 09:48 AM..
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