I have a defendant with two pending felony DWI's from two different offense dates. The defense attorney is asking that we try both of them at the same time, on both guilt-innocence and punishment. Other than the obvious downside of sentences running concurrently, can anyone think of a downside? It seems that trying them together virtually guarantees convictions on both. Any suggestions? I don't think I've ever had a defense attorney want to try 2 DWI's together.

Check the indictments in both - maybe he sees - or thinks he sees - an error in both (wrong date of conv or cause number or something trivial) that he thinks could lead to an instructed verdict on both for felony DWIs. He may want to rush on both to prevent you from seeing this and fixing for the second trial if the first goes his way.

Has anyone evaluated the defense attorney's competence? Perhaps insinuating a plan is giving him far too much credit. Do both cases share the same arresting officer? Any history there?

Perhaps he'd rather shoot for a 12 to 0 acquittal or 12 to 0 for probation, if eligible, than having to shoot for 24 to nothing in two trials.

As has been pointed out, there is the advantage that the sentences would be concurrent if tried together.

More to the point - how is your judge. It is not a sure thing for the defense that the facts of the other D.W.I. would not come in during the trial of each of them. If he mounts a defense, then the D.W.I. then he might well open the door to the extraneous offense during the guilt phase of the trial. The extraneous would be admissible for the purpose of determining motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident ... Clearly he could hear about the other DWI during the punishment phase of each trial. Even cross examination could open the door.

If your arresting officer is challenged as to his opinion of intoxication, will your judge let you call the arresting officer in the other case to say "sure, that is the way defendant is when intoxicated and what he does when intoxicated" ... ?

Why not suggest he plead guilty to both if he wants concurrent sentences? Why are you giving up a stacked sentence without getting anything in return?

Perhaps the defense attorney thinks he will get a better jury by revealing both cases during voir dire and challenging for cause anyone who could not be "fair" under those circumstances.

Although trying the cases separately may not be the most efficient way to dispose of the defendant, it would be the safest. As we know, in trial victory is never certain, no matter how strong the case (or cases...) and sometimes even the best-laid plans go south. What if you forget to prove jurisdiction, what if there is a flaw in the charging instruments, what if you get 12 drunks on the jury panel?

By trying a two-fer, the best outcome you can hope for is a concurrent sentence on two cases. The worst outcome would be two not guiltys.

By trying one at a time, you can still get (at best) two concurrent sentences. But you insure that at worst you won't lose them both at the same time. Anything that might queer the first trial won't be a factor in the second trial. Any slip-ups on your part won't be repeated. Any aces up the defense attorney's sleeve will already have been played, etc.

There really does not seem to be much of an advantage to trying both at the same time.

My defendant finally decided to face the inevitable and took the pen time I'd offered her all along. Thanks for all your input.