Wednesday, July 12, 2017

Perverse incentives created by police overtime for court appearances

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.

*No public link: Accessed via subscriber-only Houston Chronicle archives.


Anonymous said...

Wait, he was profiling rich white folks who could afford to hire high priced defense lawyers? Well the certainly runs counter to the contemporary prevailing BLM narrative doesn't it? LOL!

Gritsforbreakfast said...

Hmmm ... I don't recall BLM claiming de-policing was going on in affluent neighborhoods. The guy pulled people over in the district to which he was assigned.

It is a good example, though, that while problems with the justice system disproportionately affect minorities, it's hardly the case that they ONLY do. White folks are still the largest racial group in TDCJ. The justice system's failures and problematic incentives for police (and prosecutors) affect everyone living under their authority, not just minorities and not just poor folk. Important to remember.

john said...

It's not only that, it's every lawyer and court and cop and city/County offices stalling YOUR case, hoping you'll pay up or drop out, or both. They will reset your appearances, try to bring in a "Visiting" judge who will have NO oath, etc.--to blindly rule against you. Even lawyers are sometimes shocked by how the judges ignore the law. They'll do anything to cheat you. IT IS SYSTEMATIC AND PERVASIVE. BECAUSE IT'S HOW THEY GET PAID (and except for cops) a-plenty. Houston courts are required to have a recorder, but try to find one. Night court perpetually skipped it. It's only the city's Charter. It's only the law, they think they own to bend. It's for the rich, and everyone poor trying to play by the rules (or God forbid, the written law) loses--and they LIKE It that way. It's THEIR expedience, THEIR ATM. Any GOOD cops or lawyers join a silent majority, so no insider-whistles are ever blown.

Pat said...

Before my wife and I moved from San Antonio about 10 years ago, I knew the 2 top paid SAPD patrolmen in San Antonio. How did these 2 gentlemen make almost twice what everyone else did? Overtime pay for court. They made sure that they had more tickets that would go to court. I do not know if this continues but both of them were investigated for their actions after we moved.

Anonymous said...

Grits, let me jump in here a moment, not to dissuade you from slanting the coverage but to balance it out just a tad. As a preface, let me state that I was personally acquainted with Lindsey and several of his supervisors, particularly Robinson so I freely admit my own biases in a different direction.
1) Lindsey made all that money from court overtime. This is simply not true and the public records do not support the contention. Lindsey worked every overtime program available to Traffic and Accident officers, including state funded seat belt enforcement, DWI step programs funded by the feds, and just about everything else that came up. As a result, he was subpoenaed to court which unlike Austin, did not pay 4 hours for 1 hour of showing up. For whatever reason, Harris County doesn't offer a night court system so this officer would have to show up during the hours he was off duty, which led to overtime. As an aside, Harris County ADA's have long thought the world revolved around their schedules and demanded officers show up for every setting as a rule of thumb, usually blaming defense attorney's and elected judges. Since the overtime for officers did not come out of their budget, they had no incentive to curtail these demands, it should be further noted that some ADA's tried putting officers "on call" but couldn't get it through their heads that many/most officers did not live next to the courthouse, expecting officers to be able to arrive on 15 minutes notice fresh and ready to testify.
2) Lindsey was a great example of a working officer. He worked long hours and worked them like he was on the public dime. Make hay of his willingness to arrest rich white people but he worked where he was assigned, his stats including a great many minorities, old, young, men, women, and even some transitioning when he was assigned to the Montrose area. He was a true believer in getting drunks off the streets, having that ingrained in him by the infamous Mel Poff, a nationally recognized leader in DWIs. Police have a saying regarding this kind of officer; "The more you work, the more you will be complained on." and those in the field of defending DWIs know it. For that matter, for a long period of time, one of the most common defense tactics in the Houston area was to complain on the arresting officer or have the client complain, trying to generate enough smoke to confuse the simple minded.
3) Lindsey applied the standard of arrest that was taught him, only a fool would say he ignored the results of the field tests in making the decision to arrest, so if you failed the HGN or four of the other tests recognized in the field, you were going downtown to provide a sample of your breath or blood. Funny thing, in virtually ALL cases, his suspects that did give samples of their breath were over the top intoxicated, those that did not give one all gave the appearance of being DWI. Unlike the barely trained patrol officers that came across DWIs on occasion, Lindsey's purpose as a member of the DWI Task Force was to arrest them so he was always busy and like it or not, he was skilled in DWI detection.

Anonymous said...

(part 2 contd)
4) Most of the sustained complaints against him were for minor things. Certain members of the command staff and captains were livid that an officer could make more than they did, forgetting that the officer was working every waking hour by putting his life on hold. This came up during union pay contract negotiations, various mid-managers and above suggesting caps or trying to justify their own need for bigger pieces of the pie but the kind of scrutiny applied to any officer making over a certain amount was incredible, belying that thin blue line you speak of as they stabbed officers in the back with this pettiness. If you had access to the complete files for each case, even you Scott would shake your head at how petty many complaints were. Almost all of them were for technical violations of things that could be interpreted differently depending on the mood of the person in charge.

I could go on and on but I won't. I happen to agree with your line of questioning regarding the public policy aspects of this kind of thing. The Lindsey I knew was not a good friend of mine nor even particularly likable but he was a good officer and his conviction rate was much better than the media seemed to suggest. The 2006 memo, and there were several others before that, was regarding officers that worked together who had different court times. Legally, if they were at the scene of the traffic stops, they were witnesses to the alleged crimes, but the memo was to get officers to stop working together unless they had the same court dates and times, a practice that arose more because specific Lt's and sergeants demanded officers worked in groups for safety than specifically designed to generate extra overtime (with a few cases of officers pushing that too far). But ultimately, an officer that works hundreds of hours of overtime programs or shows a willingness to make arrests late in the shift when overtime may be incurred, is going to have a lot of court time as well. Change the policy or place the blame where it belongs on the ones demanding officers be on hand a dozen times even knowing a case will be reset, but character assassination is wrong.

Anonymous said...

Here, not only are they paid time and half for appearing on behalf of the state. They are not if the defense sends them a subpoena. Moreover, their policy manual that is available to the public specifically states if they are summoned by the defense to court they are not to wear their uniform and they are to immediately inform the prosecutor on the case.

Anonymous said...

Houston got in some trouble when it's police chief, a man many of you might know as a former city councilman or the police chief in charge of the department for most of the years the rape kits were left to languish and the crime lab was not properly tended to, put all sorts of other restrictions on officers to prevent them from discussing cases with defense attorney's without the prosecutor present. He also demanded officers announce they were ready on all cases before he was forced to water down that order. His name was Clarence Bradford, a man who also ran for district attorney and was forced to go to trial for perjury. It should be noted that he had also held a meeting of his most productive officers, telling them that he didn't care what their motivations for writing tickets were but he wanted them to show up to court and remain productive.

Gritsforbreakfast said...

@2:10, fyi, Art Acevedo has the same attitude toward DWIs

Anonymous said...

Bradford never once suggested writing tickets or arresting people for DWI that the officer did not think were guilty of the offenses. I think the difference is that some people think officers should disregard the law and require every arrest be an airtight case instead of having sufficient probable cause to make an arrest. Unlike most of Texas, Harris County has long adopted a policy where all class B and above arrests are vetted through the DA's office first, the rest of the state allowing officers to make the arrest and file charges without consulting an ADA.

While not perfect, that policy does add an extra layer of protection to the public, just as departments like HPD typically having a different officer or trained civilian perform the statutory warnings and videotaped tests at the station. There was plenty to dislike about Bradford without suggesting he encouraged false arrests or fake tickets, neither of which he would stand for when he was their chief.

But if those detained refused to do any tests on the street, and it was their right to refuse, or to refuse tests at the station including a breath test, again their right, most ADA's would accept charges. The station machines were very accurate, contrary to suggestions, and part of the warning was the opportunity to provide a sample of blood, the most accurate test of all court approved tests, so those claiming they weren't intoxicated yet refused giving blood aren't fooling anyone.

The people most likely to refuse doing any tests or provide breath/blood were almost always the wealthy or lawyers and exactly the type the DWI task force officers were sent to process. Unlike the untrained, un-certified patrol officers, each of the task force were certified by the state and required to keep a log of all their DWI arrests. An HGN test by an un-certified officer was meaningless and not admissible as evidence in court (up to 40% wrong for them maybe) but it was legitimate and far, far more accurate by a trained expert like Lindsey. The same holds true for those goofy tests that are accepted far and wide by the courts; not individually but in conjunction with each other and all available evidence. Of course some that have physical handicaps are unable to perform them, and they should state their objections up front and on video, but someone that can't estimate 30 seconds, hold one leg slightly off the ground without swinging their arms wildly, and can't walk a straight line probably shouldn't be driving in the first place. Improve the system, including training, but don't make up false facts to suit the agenda.

DLW said...

10:18, I don't have a problem with making an arrest decision by erring on the side of public safety. My disagreement comes from the cops not being upfront with the ADA's about the arrest. They should just tell the prosecutor they weren't absolutely sure but went ahead with the arrest. The ADA's are afraid to tell the AO they think the case shitty. The AO is afraid to tell the ADA they case is marginal. So the end game is that cases go to trial that should not go to trial and the buck is passed to 6 or 12 strangers sitting on the side of the room.

I hold a practioner's certificate in SFST's and that battery is the biggest fraud ever. Every single deviation from perfect is attributed to the consumption of alcohol as a beverage when everybody in the system knows better.

Anonymous said...

DLW, if you think that battery of tests, taken as a whole in conjunction with a stationary breathalyzer, are "the biggest fraud ever", you haven't encountered too many frauds. Nobody in or out of the system suggests they are perfect, and if perfection is your standard for acceptance that they have some value, I suggest you are not being realistic. I've been asked the battery of related questions by certified officers including if I had a physical disability, if I suffered a previous head trauma, what I had eaten and all the others that solidify their results but that is why ADA's need to use discretion and juries need to listen to all the facts.

Whether you are an officer, a defense attorney, or a prosecutor, if you have been to trial or had a DWI case heard in Harris County, Texas, you will know that ADA's have no problem dismissing such cases for the weakest of reasons, none seeming to care much what the state's witness has to say about it. There are just too many such cases for the local courts to handle and regional social mores fall just short of allowing whiskey dispensers built into car dashboards. As a result, the area has a tremendous amount of alcohol related fatalities but if anything, individual officers and prosecutors alike err on the side of caution by not arresting and prosecuting as frequently as they can, the overtime issue a red herring in virtually all cases (and easily fixed by minor policy changes from the upper management of police or the DA if desired).

The entire line of thought that a particular officer might be moved to make arrests based solely or largely on his desire to make more money shouldn't be taken lightly. In this particular case, the lawyer in question comes across as having sour grapes more than a valid complaint, his willingness to throw a colleague under the bus for not using such an offensive, unproven, line of questioning that doesn't yield the results suggested (that juries dismiss cases more because of its use). I've seen officer Lindsey in trial more than a few times, more than most who will ever read this website in fact, and I've seen juries get offended by the bottom dragging such lawyers engage in while trying to explain the BAC's their clients had or the terrible videos; trying to muddy the waters and distract the juries by throwing anything but the kitchen sink into the mix. Of course said lawyers are making tens of thousands of dollars by accusing the officer who is making a few hundred bucks, often down at court on multiple cases at the same time so even that amount is exaggerated.

But as a policy matter, just as courts should stop appointing a handful of lawyers to enormous numbers of cases they can't possibly handle other than as a plea mill, police departments should spread overtime out among more officers and work with the courts to dissuade having officers working so many hours. That might mean having dedicated court days for officers or alternating weeks where they are in trial, the ADAs and defense just needing to put up with it, or arranging for the court days to be on the clock, the officer's schedule adjusted rather than demand he show up for work on top of his court hours (one of Lindsey's complaints as I recall). But claiming a lawyer is ineffective because he wasn't sleazy enough to cast shadows on an officer with no proof just seems wrong to me.

DLW said...

3:11, you are arguing against a position I did not take. I specifically called the SFST test battery a fraud and I stick by that. I successfully prosecuted DWI cases long before the roadside test hocus pocus was dreamed up and it was much easier to sell impairment to a jury with the normal movements and reactions of a suspect instead of a group of agility tests that the average person cannot do and which bear no relationship to a person's ability to drive an automobile.

Also I am not just speaking about Harris County. Boatloads of marginal cases are brought to DA's offices all over Texas every day and some young ADA in his first job will take the case to trial because he thinks the AO is serious about the case and because he fears for his job if he dumps a case he cannot make.

I'm not sure I disagree that a Lawyer isn't ineffective just because he didn't cross examine the officer about how much money he is making from DWI arrests but I believe 100% that a jury should know about a possible motive to fudge and decide what weight to give that information in deciding if the Government has met its burden.

Anonymous said...

DLW, so standing up straight with your leg slightly elevated from the ground for 30 seconds is outside the ability of the average person in your eyes? Or walking a straight line with your arms at your side, or estimating 30 seconds with your eyes closed?!? At least those tests were studied, in conjunction with one another and individually. But the original tests validating the battery were done in the 1970's by untrained officers, still producing superior results to what came before that, later studies improving the validity to the point where those claiming "junk science" status really need to come up with something better than using their inability to sell it to a jury.

Since you're clearly not knowledgeable about Harris County, I'll fill you in. Each court has multiple prosecutors, including a lead that is not fresh out of law school or worried in the slightest about what the AO thinks. They dismiss cases all the time just to move their dockets, and in large numbers at that, so your experience in rural Texas is almost certainly different. But if you're going to apply such a standard as the officer making a few bucks by testifying on his off duty time as a valid reason to fudge, maybe the same kind of standard can be applied to defense lawyers lack of competency for taking more cases than they can win in a given time, because clearly they are greedy and that is their personal motive? It works both ways.

DLW said...

1:37 we aren't getting anywhere so this will be my last post on this. Lots and lots of unimpaired people cannot stand with their foot 6 inches off the ground and toe pointed without losing their balance or holding their arms out. Even more cannot do it on the side of the road with an officer making an arrest decision based upon performance. The assumption of the SFST's is that anything short of perfection is caused by beverage alcohol.

Many people cannot do the completely unnatural task of walking heal to toe on an imaginary line. That isn't the way people walk. I cannot stand in the instructional position without losing my balance and that isn't caused by beverage alcohol but if I am on the side of the road and had legitimately only had one drink which the officer can smell, he is going to make the unwarranted assumption that my imperfection is caused by the alcohol. Nowhere in the instructional phase does the officer tell the citizen that if he "breaks the stance" that is a cue. Nowhere is the person told that if they stop after 9 steps to clarify that this is where the officer wants them to turn around that the stop will be counted as a cue. Nowhere does the officer tell the person that if they start before the officer says to start, that action will be counted as a cue. Nowhere is the person told that if they do 90% of the task correctly and step of the "line" once, start early, and break an unnatural stance them will be deemed to have "failed" the test.

I know how urban Courts are staffed. I know many urban counties with a policy of plead the DWI or try the DWI. Those are policies put in by the the Elected either out of zeal or fear of an opponent and certainly impact the ability of a line prosecutor to do his job on an unworthy case.

I do not support Lawyers taking cases they are incompetent to take and I will not support cops making arrests in a pattern that strongly suggests some of the arrests are for personal gain.