DWI defense lawyers write and talk often about the inherent unfairness in penalizing DWI so harshly, when there is so much uncertainty about whether someone is guilty.

Criminal defense lawyers write and talk about how they answer “that question”…you know the one: How can you defend someone you know is guilty? 

Mark Bennett wrote a while back about jury selection in a DWI case in Houston, and for some reason, the short post has been floating around in the back of my mind. He listed off age, race, gender and occupation of the six folks that ended up on the jury, noting that it was an unusual mix for a Harris County jury.

I think the point of his post was that his client was really going to get a jury of his peers, rather than the usual makeup of a jury, and he ended the post with this line:

If the State can convince these six that my client is guilty of DWI, he might just be.

And finally, it came to me. The reason Mark’s words stuck in my head had nothing really to do with the point he was making. What struck me was this: even Mark didn’t know if his client was guilty or not.

Now, there are several reasons that a criminal defense lawyer might not know that his client was guilty, even when he was; the primary reason is the obvious one… the client doesn’t admit guilt, or doesn’t tell us the whole story.

But DWI clients are very often completely truthful with their lawyers, and yet still the lawyer himself doesn’t know.

As DWI lawyers often say, Driving While Intoxicated is an opinion crime. I think Mark’s (unintentional) point proves that.