The Texas Court of Criminal Appeals last month issued an opinion in Ex Parte Mark Bowman, with a dissent from Judge Elsa Alcala, that caught Grits’ eye – not because of the issues being decided in the case but thanks to the underlying fact pattern evinced in the discussion.At issue was a 2004 DWI in Houston and whether the defense counsel was alleged to be ineffective. The evidence of counsel’s ineffectiveness? Because of Houston PD overtime rules, the officer had an incentive to arrest people for DWI even if the cases were later dismissed because he received time-and-a-half for the hours he spent in court.The officer, William Lindsey, testified that members of the DWI task force were “paid overtime, time-and-a-half” for all hours spent in court, giving him a personal financial motive to go to court whether or not an arrest is legitimate. In the prior year, he said, he’d made 476 DWI arrests.In his habeas writ, the defendant was able to show that Officer Lindsey, from 1992 to 2004, made more money from combined overtime pay than he did from his regular salary. According to the majority opinion, “In the first eleven months of 2004 – the year of Appellant’s first DWI arrest – Lindsey earned a total of $145,957, of which only $63,924 was regular salary while $82,032 was paid overtime.”For a while, Lindsey was the highest paid officer in the city. He retired after reporters began to question the situation in 2006. (See contemporary Grits coverage.)Three criminal defense lawyers, including Doug Murphy, a DWI specialist, testified that failure to secure details about Lindsey’s economic incentives amounted to ineffective assistance. From Murphy’s affidavit:It is common knowledge among lawyers in Harris County who regularly handle DWI cases during Lindsey’s tenure on the DWI Task Force that he arrested many people in affluent parts of southwest Houston – regardless of how well they performed the field sobriety tests or how sober they appeared to be on videotape – so he could obtain overtime pay for appearing in court pursuant to a subpoena to testify at their trials. Competent defense lawyers made Public Information Act requests to HPD to obtain Lindsey’s payroll records before they tried DWI cases in which he would testify.Further, wrote Mr. Murphy:Defense lawyers would present this evidence on cross-examination to demonstrate Lindsey’s motive for making the arrest. They typically would argue that Lindsey arrested sober drivers for DWI because he knew that they would go to trial and he would receive overtime pay for appearing in court to testify; that, for this reason, he gave no driver the benefit of the doubt at the scene; that, in effect, he received three days of pay for appearing at a two-day trial; that he received the money even if the defendant were acquitted; and that his overtime pay exceeded his regular pay during his tenure on the task force. Arguments of this nature frequently persuaded juries to reject Lindsey’s opinion regarding intoxication.The other two attorneys’ affidavits included essentially similar comments.A Houston Chronicle story from July 1, 2006* mentioned a “memo … from a traffic enforcement captain warning that officers were scheming to have themselves unnecessarily placed on court dockets to inflate their overtime totals.” So these allegations were coming from HPD brass, not just defense lawyers or the media.Let’s leave aside for a moment the question of whether defense counsel was ineffective, which is the focus of the two opinions. Grits instead wants to raise other questions: Is it good public policy for police officers to have an incentive to make dubious arrests so they can get overtime to show up in court? If testifying is part of a police officer’s job, why can’t they do it during regular work hours? Is there a way to pay for court time that doesn’t contribute counterproductive incentives?In Austin, the meet and confer agreement (Art. 8, Sec. 3) specifies particularly generous extra pay for time spent in court. For example, an officer who attends court for more than one hour prior to the start of the work day gets credit for a minimum four hours of overtime. Similarly, officers who go to court after work receive a minimum of four hours overtime no matter how long they stay there. So if an officer gets off at 5, goes to court at 5:15, and is out by 5:50, they’d be compensated for four hours at time-and-a-half.Such pay structures give incentives for police to arrest on trumped up charges so they can justify spending time in court and making time-and-a-half. Such incentives can result in false convictions, particularly when counsel is ineffective or nonexistent. That seems like a more important takeaway for me, anyway, than the ineffective assistance questions at the heart of the debate between the judges over Mr. Bowman’s habeas writ.
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