1. remy
    June 4, 2009 @ 7:14 pm


    I need your advice, can you call em when you have a free moment.


  2. Feisty
    June 4, 2009 @ 8:08 pm


    Good post, though I assume you meant to say “Of those who went to trial and pled [not] guilty, 28 out of 67—42%—were acquitted.”

    And Remy — you have a strange way of asking for contact. While I admit it’s none of my business, I hope you had a good reason to ask for a call publicly. Hell, Mark’s always responded to the e-mails I’ve sent him.

    Be well.


  3. John David Galt
    June 4, 2009 @ 8:20 pm

    This does not sound to me like “failure” on the DA’s part. The huge number of people who plead guilty MUST mean that he is successfully making most of them “offers they can’t refuse” during plea bargaining.

    I’ll bet if you told us the average (or typical) sentence given to those who plead guilty, and the average given to those who are convicted at trial, the latter would be much greater. In which case, his low win rate at trial is easily explained: the only people going to trial are those who have other reasons (for instance, witnesses) to believe they’ll win.


    • Mark Bennett
      June 5, 2009 @ 8:51 am

      I don’t think it’s a failure on the DA’s part, but the DWI task force might disagree.

      In the case of first DWIs, the typical sentence given to those who plead guilty is the same as the typical sentence given to those who are convicted at trial.

      The fact that 94.5% of people who don’t plead guilty wind up winning suggests a failure on the part of the defense bar, but that’s a post for another day.


  4. sctexas
    June 5, 2009 @ 5:45 am

    I am not sure having a case dismissed is “winning.” Shitty cases, and sometimes areally good cases, get dismissed for a multitude of reasons. No DA who dismisses a cases considers it a “loss” unless it is already at a point in trial where there’s no turning back.


    • Mark Bennett
      June 5, 2009 @ 8:55 am

      We lawyers might not count a dismissal as a win or a loss, but I can assure you that the citizen accused whose case is dismissed sees it as a win.


      • cjclawyer
        June 5, 2009 @ 11:21 am

        The defendants count it as a win, but so do the prosecutors. If I dismiss a case because there is insufficient evidence of guilt (or no evidence!) or in the interest of justice, everyone wins. I can’t watch every DWI video before the first setting, but if a case is evaluated and dismissed, I did my job, just as I do when I try a case.

      • Mark Bennett
        June 5, 2009 @ 11:48 am

        It’s a win-win situation, then. I love those.

  5. Tom Kirkendall
    June 5, 2009 @ 8:42 am

    Mark, interesting post. I think there is a typo in the first sentence after the bullet points. The word “not” appears to be intended to appear before the word “guilty.”


  6. Paul B. Kennedy
    June 5, 2009 @ 8:33 pm

    At one of the first DWI seminars I attended I remember one attorney standing up and saying “Friends don’t let friends plead guilty to DWI.”

    I have often counseled clients charged with a first DWI that if they plead guilty there’s a 100% chance of a conviction but if we try the case we have a better than 50-50 chance of walking away from it.

    The statistics bear that out in spades.


  7. Jeff Kramer
    June 7, 2009 @ 1:42 pm

    Mark, what is your take on the practice of pleading to an obstruction or similar charge if it is available? One county I practice in will often offer an obstruction to first time DWI offenders, assuming they didn’t run someone over. The clients often like that option since they avoid the DWI conviction, surcharges, insurance premiums, etc.

    I sometimes see it as a win and a loss. It’s a win since there’s no DWI conviction, but they still have a conviction and probation, which is a loss of sorts. But I suppose it’s easy for me to wonder about their choices when I’m not the one facing a DWI on my record.


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