The terrain in last week’s DUI jury trial shifted unexpectedly yesterday afternoon. Two of the State’s witnesses decided that they had better things to do after lunch on a Friday than return to court.
One of the witnesses, the arresting officer who was on the stand when we
broke at eight o’clock Thursday evening, had (I learned afterwards) been reluctant to come to court and had cussed out both of the trial prosecutors for compelling her to come testify. So the State was a little less surprised than I was when she failed to post Friday afternoon.
The State appropriately dismissed the DUI. After we quickly considered how to gain the most leverage from this happy turn of events, my client pled guilty to the failure-to-stop-and-give-information charge (to which he had confessed multiple times) and took deferred adjudication probation, which was the arrangement that he and I had sought from the beginning.
So a win, but one that I can’t take credit for. The decision to take the cases to trial led to the win; everything else was just dumb luck on our side. That one good decision made by the defense was not even mine — whether to go to trial is the client’s decision; my client made it, and I backed him up.
But it’s all okay — I’d much rather be the luckiest guy in the room than the smartest.
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This entry was posted by Mark Bennett
on Saturday, October 4th, 2008 at 6:36 pm and is filed under DUI/DWI, dumb luck, jury trials.
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About The Author
Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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Congratulations! Too many prosecutors get away with a plea instead of a jury trial. Everyone scares the defendant about the possibility of losing and ending up in prison for years, so the state rarely has to prove guilt any more. The hapless defendant is literally coerced and intimidated into bearing false witness against himself.
I’m guessing you’re not a public defender. Do public defenders ever win?
well done, I’m impressed by the late hours you put in when in court.
Regards John Gibson
Mary, if the charge had been something other than DUI, we would have had a better chance of making the deal rather than going to trial. But Harris County prosecutors’ hands are unduly tied in DUI cases.
We don’t have a state-court PD’s office in Harris County. So my experience with PDs is mostly with the Federal PD’s Office here and in other federal districts. Those PDs do in fact win; they are among the best and the brightest, well-paid and insulated from trial court interference.
In state court we have an ad hoc appointment system for indigent defense. Quality of appointed lawyers, like quality of hired lawyers, varies wildly. The best appointed lawyers are the equal of the best hired lawyers. If I could change one thing about the system, I would take away the courts’ ability to decide who got appointed to represent whom.
John, thanks. When I’m not in trial, I make up for the late hours with a relaxed schedule.
“Too many prosecutors get away with a plea instead of a jury trial. Everyone scares the defendant about the possibility of losing and ending up in prison for years, so the state rarely has to prove guilt any more. The hapless defendant is literally coerced and intimidated into bearing false witness against himself.”
Seriously? A defendant damn sure should be scared of ending up in prison for years. The defendant most likely would not be “hapless” if he hadn’t put himself in that position. Why should the state have to prove guilt if the defendant is willing to admit that he’s guilty?