Wednesday, March 13, 2019

NYCOA: Criminal Appeals (Part 3)--Voting & Decisional Patterns

In the last two posts, we looked at the sharp drop in criminal appeals (Criminal Leave Applications [CLA's]) granted at the Court of Appeals in the past few years and at the frequency--and rarity--of grants by each of the Judges. Now let's see how the Court has been deciding those appeals and how each Judge has been voting: pro-prosecution versus pro-accused.

We saw that the Judges collectively granted 36 criminal appeals last year. Of  the criminal appeals the Court of Appeals actually decided in 2018, the Judges were divided in 28 of them. In each of those cases, at least one member of the Court openly disagreed with the majority in a dissent.

As explained several times on New York Court Watcher, and countless times by judicial scholars through the years, these non unanimous decisions are the most revealing. The unanimous decisions, by contrast, are often--if not usually--at least as much compromise as conviction. But with divided decisions, at least one member of a court feels strongly enough to publicly air a disagreement and to highlight the flaws in the majority's reasoning. Other members of the court are then forced to publicly take sides on competing arguments that are each strong enough to preclude unanimity.

Examination of these divided decisions thus indicates what is particularly important to the dissenting judge, as well as which side of the divisive issue is preferred by the dissenter's colleagues. A fortiori, examination of a pool of divided decisions shows the individual judges' preference patterns and thereby reveals their voting tendencies.
(See e.g., Lippman's Goat--What Gets It? [Part 1: Introduction]Justice Alito's Goat--What Gets It? [Part 1].)

So how did each of the 7 Judges on New York's highest Court vote in the total pool of 28 divided criminal decisions last year. Take a look:
(click on graph to enlarge)
As the graph makes clear, Judges Jenny Rivera and Rowan Wilson found merit in the arguments on behalf of the accused far more frequently than anyone else on the Court. Notably, as seen previously, they are also the two Judges who granted many more criminal appeals [CLA's] than any other Judge.

On the other end of the Court's criminal appeals spectrum, Judge Michael Garcia virtually never sided with the accused. And as we saw previously, no one on the Court granted fewer CLA's--one. Perhaps not surprisingly, he is the Court's only Republican.

As for the Court as a whole, its decisional record was considerably more pro-accused (29%) than that of Garcia (4%) and of Chief Judge DiFiore (11%). By the same token, it was considerably less so than that of Rivera (89%) and Wilson (77%). It was roughly the same as the records of the 3 Judges at the center of the Court's ideological spectrum in criminal appeals: Judges Eugene Fahey (30% pro-accused), Leslie Stein (25%), and Paul Feinman (23%).

Let's now look at the very same records from a pro-prosecution perspective:
(click on graph to enlarge)
As the inverse of the figures in the first graph, this one shows Judge Garcia to have the most pro-prosecution record (96%), followed by the Chief Judge (77%). Judge Rivera (11%) and Wilson (23%) sided with the prosecution the least. The Court's 71% record in these divided criminal appeals--i.e., the ones so close that the Judges could not agree--speaks to its unmistakably pro-prosecution leaning.

Lest it be wondered whether 2018 was an aberration for the current Court of Appeals, here are the corresponding graphs for the previous year:
(click on graph to enlarge)


As in 2018, the voting records in 2017 show Judges Rivera and Wilson to be the most receptive to arguments for the accused and Judge Garcia the least. Stated otherwise, Garcia's record was the most pro-prosecution and Rivera's and Wilson's the most pro-accused. The remaining four members of the Court had records that were significantly less pro-prosecution than Garcia, but also significantly less pro-accused than Rivera and Wilson. As for the Court as a whole, its record was strongly pro-prosecution in 2017, just as it was in 2018.

To be clear, none of the foregoing suggests that Judges Rivera and Wilson were usually more wise or fair or correct on the law and Judge Garcia the opposite. Nor does it suggest that that is not so. Or vice-versa.  Or even that the other Judges, whose records were less pro-accused and less pro-prosecution, were necessarily more clear-eyed and less ideologically driven.

What the foregoing does show--and quite emphatically so--is that, for whatever reasons, Judges Rivera and Wilson have found more merit in more arguments for the accused than the rest of the Court. And Judge Garcia, the same for the prosecution. At the same time, the Court itself in these close, non-unanimous cases, where it could legitimately have ruled either way, has largely been favoring the prosecution.

Thursday, February 14, 2019

NYCOA: Criminal Appeals (Part 2)--Annual Totals Through the Years

We previously looked at the stark disparity among the Court of Appeals Judges in the number of CLA's (Crimnal Leave Applications) they granted last year. Some Judges had comparatively high numbers. Others very low.

These figures underscore what is well known by attorneys who practice before New York's highest court, as well as by those who have worked there and by those who study it. Getting permission to argue a criminal appeal before the Court entails at least as much luck as merit. The chances of receiving the go ahead depend in large measure on which lone Judge was assigned the CLA. Which  single Judge happened to receive the CLA in the random and equal distribution system at the Court--a system in which that Judge alone decides yay or nay.

If the CLA happens to land on the desk of a Judge who liberally grants CLA's, the chances are relatively good. If  a much stingier Judge is assigned the CLA, well then the chances are much worse. It's a random and equal distribution system with arbitrary and unequal consequences.

Now, next up: comparative annual totals. That is, the annual number of grants by the Judges collectively over the years.

Well, not surprisingly, the annual totals do differ from year to year. Perhaps more surprisingly however, the annual totals have sometimes changed dramatically from one period to another. Indeed, the change has sometimes been so significant, that it is hard to imagine that mere happenstance is to blame. Especially, for example, when a precipitous drop in annual totals coincides with some significant and related event. A fortiori if that drop persists until a counter event occurs.

But whatever the causes, the fact is that the annual totals of CLA grants display stark disparities. Like the grant numbers of the individual Judges, the contrasts have sometimes been striking.

Let's take a look at the annual totals over the course of the last 3 decades. Those 30 years include periods under 4 Chief Judges. They begin with the last 5 years of the Court with Sol Wachtler at the helm, then continue through the era of Judith Kaye, then followed by the tenure of Jonathan Lippman, and finally ending in the present with Janet DiFiore in the center seat.

Here's the data on annual totals displayed:
(click on graph to enlarge)


As the graph makes clear, there was a significant drop in CLA grants, a few years into the Chief Judgeship of Judith Kaye. Years later, there was a sharp rise as soon as Jonathan Lippman became Chief Judge. Most recently, the numbers have again fallen deeply under Chief Judge DiFiore.

The drop in 1996, a few years into the Kaye era, happened to follow immediately upon the newly elected Governor George Pataki's campaign of harsh public criticism against the Court. He and his cronies bashed the Court for being soft on crime, coddling criminals, caring more about criminals than victims, far too liberal...you know.
(I.e., the usual demagogic nonsense spewed by pandering politicians who typically don't have much of a clue.)

The Court's criminal decision-making did then take a turn to the right. It became more pro-prosecution. At the very same time, the Judges collectively began granting far fewer criminal appeals. The annual CLA grants actually dropped in half. Hmmm.
(I have studied and written quite a bit about this era and the attendant changes in the Kaye Court. I  did briefly discuss it in some related New York Court Watcher posts in the past. See e.g., NY Court of Appeals: Steep Cut in Criminal Cases (part 2); and Part 2: Dissents--The (very early) DiFiore Court [with graphs!].)

By the end of the Kaye era, the complaining voices were becoming louder and more numerous. Criminal defense lawyers were rather upset--veritably outraged--that so few CLA's were being granted. Also, there was the realization that getting a CLA grant with some Judges seemed a near impossibility.

Upon Kaye's retirement and the appointment of Jonathan Lippman to replace her, the new Chief Judge expressed his concerns--both publicly and among his colleagues on the Court. Suddenly, CLA grants surged. They actually doubled.
(See Joel Stashenko, "Chief Judge to Review Why Court Accepts Few Criminal Appeals," NYLJ, April 22, 2009. [Note: I was a source--on the record--for that article.]; also NY Court of Appeals: Granting Criminal Appeals--Up, Down, Now Up Again? [Part 1: Overview].)

The Lippman effect on CLA's continued throughout his tenure. When he retired, however, the number of CLA grants dropped again. Indeed, they have plummeted as sharply as they had surged under Lippman. In these first few years of the Court under Chief Judge DiFiore, the annual totals are less than half they were with Lippman.

Let's now display the foregoing in a more concise and easily digestible form than in the first graph. Let's reduce the amount of data by looking at averages. Let's look at the average annual CLA grant totals for the Wachtler era, the early Kaye and the late Kaye eras, the Lippman era, and the early DiFiore era (i.e., the first 2 full years of DiFiore's tenure, which are the last 2 years). Here it is:
(click on graph to enlarge)

What we just discussed is there in black and white--well, in green and red and blue and rust. A rather high annual total in the Wachtler era (at least when compared to more recent periods). Followed by annual totals beginning to drop in the early Kaye era. Then a more dramatic drop by the latter part of Kaye's term. A sharp rebound during the Lippman era. And finally, back down--even below the late Kaye era--in the current era under DiFiore.

Consider one additional way to look at this data. As we saw in the previous post, two of the Court's seven Judges--Jenny Rivera and Rowan Wilson--granted far more CLA's this past year than their colleagues. No other Judge was even close. But lest it be thought that Rivera and Wilson are being excessive and out of step, the fact is that their CLA grants are actually much more in line with the Court of Appeals' record on CLA grants over the years.

If every member of the Court granted as many CLA's as Rivera and Wilson did last year, the Court's annual total would be much more in line with past records. For only then would the Court's annual total approximate what it was when Wachtler was Chief Judge. What it was during the early years of Kaye's tenure. And what it was while Lippman was Chief Judge.

The math is simple:
The average of Rivera's 13 and Wilson's 10 is 11.5.
Multiply that by 7 Judges and the annual total would be 80.5 CLA grants.
Now that would still be a bit less than the annual average of 98 for the Wachtler era.
It would be roughly the same as the 76 figure for the early Kaye era.
It would be slightly less than the 87 figure for the Lippman era.

In short, the Rivera-Wilson standard for CLA grants would certainly not be excessive--not even close. Indeed, it would only significantly exceed the late Kaye era. But, as is clear from the data and the 2 graphs, that late Kaye era was an aberration. The CLA grants were atypically low.

AND, the annual grant totals in the DiFiore era are, thus far, also aberrational.  Also atypically low. In fact, the grants are even lower than they were during the late Kaye era.

What was true when CLA grants plummeted during the Kaye era, immediately following Governor Pataki's harsh criticism of the Court for being too liberal and caring too much for criminals, is also true for the dramatic drop in these first few years of the Court under Chief Judge DiFiore. It is extremely difficult to believe that the change has been mere happenstance. That it is coincidental.

The precipitous drop in CLA grants in recent years evinces either a deliberate policy choice to reduce the number of criminal cases or, at the least, a pressing need once again for a Chief Judge to address such an inordinately high denial of the opportunity to have one's criminal case reviewed by the Court of Appeals.

Tuesday, February 12, 2019

NYCOA: Criminal Appeals--Who's Granting & Who's Granting Less

First, some background.

CLA's (Criminal Leave Applications) are petitions to the Court of Appeals, NY's highest court, asking it to review a decision by a lower court. But, as those who are familiar with Court of Appeals practice know, these CLA's are handled quite differently than other matters.

Unlike other decisions made by the Court of Appeals--whether it be on a case or a motion or even a petition to hear a civil appeal--decisions on CLA's are rendered by a single Judge. That's right. Whether or not the Court of Appeals hears a criminal appeal is decided by only one Judge. Not by the Court itself.

These CLA's--in excess of 2,000 annually in recent years--are distributed randomly and equally among the Court's 7 Judges. The Judge to whom a CLA has been distributed is the only Judge who decides it. The only Judge who determines whether or not the CLA will be granted or denied. The only Judge who decides whether or not the Court will hear the appeal and review the decision of the court below. In fact, the only Judge who even sees the CLA.

Not surprisingly, at different times, depending on the Court's composition and priorities, the Court has been more generous in granting criminal appeals. At other times it's been more stingy. Beyond that, within the very same times, some Judges have been more generous and others more stingy.

That latter reality is what makes the one-Judge decision-making on CLA's so inconsistent and inequitable. CLA's that are distributed to and decided by a particularly generous Judge are much more likely to be granted. Those that are distributed and decided by a more stingy Judge, much less likely. Indeed, whether or not a criminal appeal will be granted--i.e., whether the Court of Appeals will ever review a decision of a lower court--depends in large measure on the luck of the draw. Was the CLA distributed to a more generous Judge? Or to a more stingy one?

As can be imagined, those who seek review of their criminal cases by the Court of Appeals fervently hope that their CLA's are distributed to certain Judges. And they dread their CLA's being distributed to others.

So let's take a look at records of the Court of Appeals Judges. Which Judges have been comparatively generous in granting CLA's? Which have been less so? To be blunt, for those who seek review of their criminal cases, which Judges give them a better chance? And which Judges make their chances worse?
(I have done similar studies on CLA's while Jonathan Lippman was Chief Judge [see NY Court of Appeals: Granting Criminal Appeals--Up, Down, Now Up Again? (Part 10: Who's Granting Now?), and the preceding Parts]; and early in Chief Judge Janet DiFiore's tenure [see NY Court of Appeals: Steep Cut in Criminal Cases (part 2), and preceding Part].)

Here are the figures for the Court of Appeals Judges for calendar year 2018. How many CLA's did each one grant in the immediate past year?
(click on graph to enlarge)

As the graph makes clear, there were sharp contrasts among the Judges. Judges Jenny Rivera and Rowan Wilson granted far more criminal appeals than their colleagues. At the other end of the Court's CLA spectrum, Judges Leslie Stein and Michael Garcia granted the fewest.

For a different perspective, let's just rearrange the data from seniority of the Judges to the number of grants.
(click on graph to enlarge)

From Rivera and Wilson to Stein and Garcia, there was quite a spread. The significance of these figures is underscored by the fact that the CLA's are distributed randomly and equally. There is no indication that some Judges were deliberately assigned the easier CLA's while others the more difficult ones. Nor that some Judges were assigned an inordinate share while others many fewer. Indeed, when each Judge's CLA grants and denials are totaled--as I have done--the number decided by each of them in 2018 was ~300. 

With that in mind, the somewhat curious conclusion--if not entirely disconcerting to those who file CLA's at the Court, as well as to anyone who prefers a more equitable system--is the stark disparity in the actual frequency with which the different Judges have granted CLA's. Judge Rivera granted more than 4% of the CLA's assigned to her. Judge Wilson, more than 3%. On the other hand, Judges Stein and Garcia granted less than 1%.

What becomes clear--and what many lawyers who do criminal appeals already know too well--is that it has been much more likely to have a CLA granted if it has been assigned to either Judge Rivera or Wilson. That means a much better opportunity to have the Court of Appeals hear a criminal appeal if one of those two Judges gets the CLA.

And the opposite of course has been true if others on the Court got to decide.

It's no wonder that so many members of the bar, including former Court of Appeals Judges, as well as bar organizations, believe that the CLA system must be changed to insure much greater equal treatment in the process.

Next, we'll look at CLA grants by the Court as a whole over time.

Sunday, October 28, 2018

NY's Court of Appeals in the Era of Trump


New York's highest court must step up.

The reactionary direction in so many areas of national policy and, perhaps most especially, the effect that the two newest appointees to the Supreme Court will have on federal constitutional and statutory protections, require heightened vigilance by state high courts.

As the final arbiters of their individual state's own constitution and laws, state courts have the authority, opportunity, and obligation to independently insure that fundamental civil rights and liberties are enforced, regardless of what the federal high court does under federal law. As has often been true throughout its history, the New York Court of Appeals should take a--if not the--leadership role.

Seventy-five years ago, Chief Judge Irving Lehman made clear the role and responsibility of New York's high court:
Parenthetically we may point out that in determining the scope and effect of the guarantees of fundamental rights of the individual in the Constitution of the State of New York, this court is bound to exercise its independent judgment and is not bound by a decision of the Supreme Court of the United States limiting the scope of similar guarantees in the Constitution of the United States.
In that case, People v. Barber (1943), the Court of Appeals refused to adopt the Supreme Court's narrow view of free speech and religious liberty and, instead, did not hesitate to protect both as a matter of New York's own constitution law. Significantly, the federal Supreme Court--a mere four months later--followed the Court of Appeals' lead and overruled its prior rights-denying decision. (Murdock v. Pennsylvania [1943], overruling Jones v. Opelika [1942].)

Today's NY Court of Appeals
That sort of leadership and influence by state courts and, in particular, by the New York Court of Appeals is needed today.

Twenty years later, in People v. Donovan (1963), involving the self-incrimination privilege and the right to counsel, then-Judge Stanley Fuld reminded the government of the Court of Appeals' independent tradition and function in our federal system of dual sovereignty:
[W]e find it unnecessary to consider whether or not the Supreme Court of the United States would [rule the police conduct to be] a violation of the defendant's rights under the Federal Constitution....[T]o quote from our opinion in Waterman (9 N Y 2d, at p. 565), [the violation in this case] "contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with crime."
Indeed, New York's high court relied solely on New York's own constitutional protections and precedents in that case and in so many others where, in the words of Chief Judge Charles Breitel, it reaffirmed its commitment to "extend[ing] constitutional protections...under the State Constitution beyond those afforded by the Federal Constitution." People v. Hobson (1976).

That sort of willingness to be bold and independent by state courts and, in particular, by the New York Court of Appeals is needed today.

Then, throughout the tenure of Lawrence Cooke, both as Judge and eventually Chief Judge, the Court of Appeals refused to "pay[] mere lip service to the principle of due process" (People v. Isaacson [1978]). It led the country in the rigorous enforcement of constitutional protections in both civil and criminal cases as a matter of New York state law, independent of the Supreme Court's rulings under corresponding federal law. (E.g., People v. Isaacson [1978], "traditional notions of justice and fair play;" Sharrock v. Dell Buick [1978], civil due process requirements of notice and opportunity to be heard; People v. Skinner [1980], right to counsel.)

That sort of steadfast guardianship and rigorous enforcement of constitutional principles by state courts and, in particular, by the New York Court of Appeals is needed today.

Not long thereafter, when the Court seemed at risk of losing its moorings, then-Judge Judith Kaye felt compelled to remind some of her colleagues of the propriety and obligation of a state high court to render independent judgment:
[A]t some point the decisions we make must come down to judgments as to whether a particular protection is adequate or sufficient, even as to whether constitutional protections we have enjoyed in this State have in fact been diluted by subsequent decisions of a more recent Supreme Court....A state court decision that rejects Supreme Court precedent, and opts for greater safeguards as a matter of state law, does indeed establish higher constitutional standards locally. [But even] the Supreme Court as well as its individual Justices have reminded state courts not merely of their right but also of their responsibility to interpret their own constitutions.[R]ejecting Supreme Court precedents [reflects] both the role of the Supreme Court in setting minimal standards that bind courts throughout the nation, and the role of the state courts in upholding their own constitutions. (People v. Scott, concurring opinion [1992].)
Fortunately, and in large measure owing to Judith Kaye's influence and veritable tutoring on judicial federalism, the Court of Appeals exercised its independent judgment and avoided merely following lockstep with whatever the Supreme Court decided under federal law, however questionable.

Understanding and embracing the axiomatic principles of federalism, including the independent role of state courts--as emphatically restated by Judith Kaye--is needed today by state courts and, in particular, by the New York Court of Appeals.

Nevertheless, in the later years of Kaye's tenure as Chief Judge, the Court of Appeals failed to heed those principles and did lose its moorings for a spell. Consequently, during that period the Court produced some very unworthy decisions. Among them was one of the Court of Appeals most regrettable rulings in the modern era, Hernandez v. Robles (2006), rejecting the right to marry for same-sex couples.

As Chief Judge Kaye wrote in her passionate dissent, the majority's refusal to recognize marriage equality was an embarrassing break with the Court's tradition of leadership in safeguarding fundamental rights:
This State has a proud tradition of affording equal rights to all New Yorkers. Sadly, the Court today retreats from that proud tradition....
It is uniquely the function of the Judicial Branch to safeguard individual liberties guaranteed by the New York State Constitution, and to order redress for their violation. The Court's duty to protect constitutional rights is an imperative of the separation of powers, not its enemy.
I am confident that future generations will look back on today's decision as an unfortunate misstep.
 And, of course, Chief Judge Kaye was right. The Court's reluctance to safeguard constitutional rights to the fullest under New York law was, at the very very least, "an unfortunate misstep." Indeed, it has proven to be a quite shameful ruling. It placed the Court among the nation's most backward, callous, and timid tribunals. And it required New York's governor and legislature to protect equal rights because the Court had failed to do so.

That sort of timidity and underenforcement of the most fundamental constitutional mandates of equal treatment and due process, by a state court and by the New York Court of Appeals in particular, must be avoided today.

A few years hence, with Chief Judge Jonathan Lippman at the helm, the Court's national stature as a leader among state high courts rebounded. (Indeed, several chief justices of state courts around the country actually volunteered that to me during the time.)

The Court of Appeals once again began boldly to protect basic rights as a matter of state law, independent of how the federal Supreme Court might decide the same issues. So, for example, in People v Weaver (2009), the Court declared that the technological surveillance in question was a search requiring probable cause and a warrant. Whether federal Supreme Court doctrine--as embraced by the dissenters--would have dictated a different result was beside the point.

Writing for the majority, the Chief Judge made clear that a potentially contrary federal Supreme Court ruling was irrelevant:
What we articulate today may or may not ultimately be a separate standard. If it is, we believe the disparity would be justified. The alternative would be to countenance an enormous unsupervised intrusion by the police agencies of government upon personal privacy and, in this modern age where criminal investigation will increasingly be conducted by sophisticated technological means, the consequent marginalization of the State Constitution and judiciary in matters crucial to safeguarding the privacy of our citizens.
Notably, three years later in U.S. v. Jones (2012), the Supreme Court--despite its narrow, rigidly, and regressively textualistic opinion by Justice Scalia--reached the same result as did the Court of Appeals. Significantly, a majority of the Justices, in separate concurring opinions, actually adopted the very same privacy analysis articulated by Chief Judge Lippman.

The sort of confident fidelity to a state court's independent role in protecting fundamental rights, as reflected in the Court of Appeals' decision in Weaver, is needed today.

The current Court of Appeals--with all its members having been appointed in recent years--is still a young court, with little institutional memory, and is seemingly still finding its way. At the least, it has not yet made its mark. It has yet to establish itself as an heir of the earlier courts, of carrying forth the historic tradition of the Court of Appeals as a force for vigorously protecting constitutional rights and liberties and fundamental fairness, and of doing so entirely independent of what the federal Supreme Court has done or might do.

Other state high courts around the country--the supreme courts of Iowa, Massachusetts, Oregon, Vermont, and Washington being among them--have been in the forefront of producing landmark rulings as a matter of independent state law. The Court of Appeals was conspicuously and uncharacteristically absent from any such list during a recent period. As previously mentioned, however, the Court subsequently regained considerable national stature while Lippman was Chief Judge.

New York Court of Appeals
It still remains to be seen where the Court of Appeals, with Chief Judge Janet DiFiore presiding, will eventually land. It remains to be seen how faithful this current Court will be to the historic tradition of bold, independent vigilance in the protection of constitutional rights and fundamental fairness. Indeed, that tradition has of late been manifesting itself primarily in the dissenting opinions--in the dissents penned by Judges decrying the majority's indifference to some injustice left unredressed.
(See the previous discussion in Dissents, Disappointments, and Open Questions, Part 1 and Part 2.)

In this era of Trump and of the federal Supreme Court he is remaking, the fundamental role and obligation of state courts and, in particular, of the New York Court of Appeals could not be more compelling. That role and obligation is to be ever mindful of the dual sovereignty of our federal system of government, and to stand as a bulwark in the protection of civil rights and liberties and basic justice, independent of regressive federal law and jurisprudence.

This is no time for timidity or indifference or passive acquiescence to injustice on the altar of some interpretive method. The Court of Appeals must step up.

Thursday, September 6, 2018

NYCOA: (Part 2: Unsigned 4-3) [Back to] June 14 Hand Downs

Dissents, Disappointments, and Open Questions

(Reviewing the Supreme Court's past term and developments--yes, and enjoying the Saratoga meet--monopolized my time for a while. Back to the New York Court.)

Judges who are proud of their opinions sign them.
And when they don't?

Let's return to that June 14 set of decisions by New York's highest Court. To be sure, the Court of Appeals' entire past year cannot be reduced to one day. But that day's particular collection of hand downs seems quite reflective of the Court's recent behavior. Indeed, other Court watchers have noticed as well.

In Part 1, we saw how the Court in People v. Tiger relied on a federal Supreme Court decision--a much criticized one, including a dreadful concurring opinion--to determine a purely state statutory question. Moreover, in doing so, it made credible claims of actual innocence much more difficult to raise. In fact, as the dissenters pointed out, the decision in Tiger was especially distressing because there was very good reason to believe that the defendant was in fact innocent--as a subsequent civil trial found him.

Here's another highlight--unfortunately noteworthy because so puzzling and, like Tiger, disconcerting: People v. Thibodeau. This decision was rendered in an unsigned memorandum, despite the deeply divided 4 to 3 vote, and despite the comprehensive and persuasive dissenting opinion about the newly discovered evidence of innocence.

This case, like the previously discussed Tiger, dealt with a convicted defendant who has insisted that he's actually innocent and involves subsequent evidence which, if true, proves that he is. Also, like Tiger, a majority of the Court denied the defendant's request for relief.

But unlike Tiger, the majority opinion in Thibodeau was contained in a memorandum which the author chose not to sign. Yes, an unsigned memorandum decision, even though the closeness and importance of the case triggered a 30 page, rigorously detailed dissenting opinion, joined by 3 of the Court's 7 Judges: signed by Judge Rivera and joined by Judges Wilson and Feinman.

In Thibodeau, the defendant was convicted of kidnapping someone whose body was never found, but who was presumed to have been murdered. In prison since 1995, and always claiming to be innocent, the defendant was now seeking to undo his conviction based on new evidence which was not available at the time of his original prosecution. The legal question in his request for post-conviction relief was whether there was "a probability that had such evidence been received at trial the verdict would have been more favorable to the defendant.” [That's the language of the governing provision in NY's Criminal Procedure Law (§ 440.10 [1] [g]).]

The new evidence consisted of statements, allegedly made by three men, admitting that they abducted the victim, killed her, and disposed of her body. Additionally, there was testimony by several witnesses to these incriminating statements. There also were some documents consistent with the guilt of the three men and the innocence of the defendant.

Beyond all that, as stressed in the dissenting opinion, the prosecution's
trial evidence was not overwhelming. No physical or testimonial evidence at trial placed defendant at the [scene] at the time the victim disappeared, and no forensic evidence was found...linking defendant to the victim.
Nevertheless, the unsigned, bare-majority memorandum disparaged the new evidence as "uncorroborated hearsay." It stated that the county court was "within its discretion" to reject the claim for post-conviction relief. In the view of the 3 dissenters, however,
It is difficult to imagine these statements [of the three men and the corroborating testimony] would not have 'added a little more doubt to the jury’s view of the evidence,' such that there would have been enough uncertainty as to defendant’s guilt.” [Quoting a 2015 precedent of the Court.]
The specific point here is not about whether the majority or the dissenters got it right. Yes, it is certainly noteworthy that a majority of the Court, for the second time in this one decision day, saw fit to deny relief to a defendant whose claim of actual innocence had substantial support in the record. Many, including myself, find this dismaying. But that's a discussion for another time.

The particular point here is that the majority in Thibodeau saw fit to dismiss the strenuous protestations of their three dissenting colleagues--just one vote less than the majority--without the dignity of a signed opinion.

There is a "company line" about these memoranda decisions that has been repeatedly proffered over the years by former and current members of the Court. That semi-official explanation is that these unsigned writings are used in cases where the issues are already well-settled or readily resolved or otherwise insignificant.

Several years ago, my criticism of the frequency and typical inadequacy of such unsigned opinions at that time triggered a public rebuke, by a then-sitting member of the Court. Not surprisingly, that Judge insisted that these unsigned memorandum decisions were confined to cases involving nothing new or controversial or significant. Of course, as I responded then and repeat now, that excuse can hardly be taken seriously when unsigned opinions are used even where the Judges disagree about the resolution of the issue--especially when the division within the Court is deep and the issue intensely debated. A fortiori when the issue is a constitutional one or otherwise extremely consequential.

Indeed, it is especially hard to take that company line about unsigned memorandum decisions seriously when, as in Thibodeau, a substantial claim of actual innocence is at stake, where the Court is divided 4 to 3, and where the dissenters presented their position in a comprehensive, passionate, 30 page opinion. Surely, such a dissent deserved a fuller and signed elaboration of the majority's reasons why the dissenters were wrong.

In the month of June alone, there were 7 such unsigned memorandum opinions in non-unanimous decisions--i.e., where at least 1 of the Judges disagreed with the majority strongly enough and viewed the issue as significant enough to author a dissent. And lest there be any misconception, these unsigned writings are not the handiwork of just one side of the Court's ideological aisle. They are not always pro-prosecution.

For example, in People v. Morrison, decided the same month (June 28), the 4-3 majority, in an unsigned memorandum, reversed a rape conviction on the basis of a trial error which, the majority ruled, did not require any showing of any actual prejudice to the defendant. That triggered a concise dissent by Chief Judge DiFiore. She was joined by Judge Garcia who penned his own forceful 30 page dissenting opinion, which was joined in turn by Judge Feinman. Five conclusory, unsigned paragraphs by the majority hardly seems to have been adequate.

With few exceptions, cases that reach the Court of Appeals are sufficiently significant and close that their resolution deserves the fullest justification and explanation. These unsigned memoranda opinions rarely provide that. This is especially unfortunate when a dissenting opinion raises important questions. Indeed, it's often no wonder why the author of the unsigned majority opinion would choose not to take credit.

Others who follow the Court of Appeals are noticing as well. Among them, the eminent litigator Paul Shechtman recently commented that, "30 decisions [in criminal appeals over the past year] were decided by memorandum opinion; no judge signed his or her name to the decision." (Criminal Cases Faced an Often Divided Court This Term, NYLJ, Aug. 18, 2018.)

To put it plainly, the prolific use of these unsigned memorandum opinions is unworthy of a fine Court.