Wednesday, October 26, 2016

Part 6 - Observations: The DiFiore Majorities (Early DiFiore Court Patterns)

Let's see what can be gleaned from the facts and figures presented in the previous posts in this series. To be sure, some of what we've seen, especially when displayed graphically, has been quite stark. So what conclusions can be drawn about New York's highest Court since Janet DiFiore became Chief Judge? What observations can be offered about the early DiFiore Court of Appeals?

Let's start with majority voting. We've previously looked at how frequently each of the Judges voted in the majority in those closely divided, 4-3 decisions. (See Part 2 and Part 3.) As noted then, these cases are especially revealing. Any Judge voting in the very bare majority in those cases could have changed the Court's decision by changing sides. In short, each of those majority Judges cast a decisive vote.

Here, in a less cluttered graph, is what we saw:
(click any graph to enlarge.)
The Chief Judge voted in the majority in 90%, or 9 out of 10 of the 4-3 decisions rendered by the DiFiore Court to date.
(Although the data was specifically gathered for the first 6 months of DiFiore's tenure--covering the cases considered by the Court starting with its February 2016 session and decided in its March through August decision days--the data is actually accurate through the October 20 decisions.)

Again, what is particularly telling about these cases is that the Chief Judge, like the other Judges in the majorities in these cases, could have changed the outcome by changing her vote. Her vote, like theirs, was dispositive. But her vote was dispositive in more of these cases than that of any other Judge--in every case but one. The spectrum: 9 dispositive votes (90% of these cases) for DiFiore  to 4 such votes (40%) for Judge Jenny Rivera.

These figures strongly suggest that the Chief Judge was creating, or at least helping to create, majorities. They show that she was not simply joining the majority, because there was no majority in those cases without her vote.

Let's now look at all those cases where at least 2 Judges dissented--i.e., either by dissenting or by disagreeing with the majority on a significant substantive matter in a separate concurring opinion. These are the cases where the issue was sufficiently close, the competing arguments sufficiently strong, to split the Court 4-3 or 5-2 (or 4-2, in those cases where one of the Judges did not participate):
In this total of 18 cases, the spectrum is virtually the same. The Chief Judge is at one end with 94% (i.e., in the majority in each of the 16 cases in which she participated but 1). The closest to her is Judge Sheila Abdus-Salaam with 72% (i.e., in the majority in 13 of the 18 cases). At the other end of the spectrum, as she was when looking strictly at the 4-3 cases, is Judge Rivera, with 33% (or 6 of 18 cases).
(To repeat myself on a truism that I would hope is entirely unnecessary to restate: being in the majority and being in dissent do not equate with being right and wrong, wise and foolish, a better or poorer judge. Indeed, the "great dissenters"--whether at the Court of Appeals or the Supreme Court--are among the finest judges and justices in the history of each of those courts. But that's not the point of this discussion about majorities.)

To complete this examination of Judges in majorities, let's look at the figures when every divided decision is considered--where at least 1 Judge disagreed with the majority in a dissent or separate concurring opinion:
The spectrum remains virtually unchanged over this total of 31 divided decisions. The numbers are a bit different, but the position of the Judges on the spectrum has remained mostly the same whether looking at split decisions with 3 or 2 or 1 Judge disagreeing with the majority. The Chief Judge has been in the majority in every divided decision (and that means every decision period) except for one, i.e., 25 out of 26 or 96%. She is followed by Judge Abdus-Salaam with 25 out of 31 or 81%. Judge Rivera was in the majority the least, i.e., 13 out of 31 or 42%.

What we are seeing is truly a DiFiore Court, or at least a DiFiore-Majority Court.

Finally, in addition to telling us that the Court is in sync with the Chief Judge (and [or?] vice-versa), the figures and the spectrum we've been seeing reveal a good deal more. Let's start with just one--the single case in which Chief Judge DiFiore was not in the majority, People v. Berry (6/14/16). Here's the lineup in that 4-3 decision: 
To those who study the Court, the lineup itself--without any regard whatsoever for the specific issue in this criminal case--is a veritably foolproof indicator of how the Court ruled, i.e., whether in favor of the prosecution or the defendant.

The Judges whom the Chief Judge joined in dissent were Eugene Pigott and Michael Garcia. That's pretty strong indication that the dissent favored the prosecution. On the other side of the divide, the majority included Judge Rivera. Her vote--and even more so because joined by Judges Abdus-Salaam and Fahey--very strongly suggests that the majority supported the defendant.

Sure enough, that's exactly how the majority voted and the case was decided.
(For those who want to be reminded what the ruling in the case was: the evidence was insufficient to prove that the defendant had the requisite control over the children to be guilty of permitting them to be in the apartment with illegal drugs.)

So, the only case in which the Chief Judge was not in the majority was decided in favor of the defendant. And in that one case, the pro-defendant majority included Judge Rivera, who has been in the majority the least of any member of the Court. What does that tell us about the early DiFiore Court in criminal cases?

We'll take that up next.

Monday, October 17, 2016

Early DiFiore Court Patterns (Part 5 - Civil Appeals Voting)

In the last post, we looked at the voting patterns of the Court of Appeals Judges in criminal cases. We now turn to the civil appeals.

In the first 6 months of Janet DiFiore's tenure as New York's Chief Judge, the state's highest court divided in 13 non-criminal decisions. Of these, 8 had a clear ideological split. That is, the disputes involved tenant versus landlord, worker versus employer, patient versus hospital, consumer versus, manufacturer, and the like--traditional liberal/pro-tort plaintiff versus conservative/restrictive liability confrontations.

To be sure, a question naturally arises about the reliability of any conclusions drawn from a relatively small pool of cases. Actually, however, the fact that the Judges aired their disagreements infrequently might well suggest that those few disagreements that they did choose to air were deeply felt. The dissents (or substantive concurring opinions) in these 8 cases might well signify particularly strong views of the authors.

Beyond that, some voting records may be so pronounced, even though the pool of cases is relatively small, that the patterns may be somewhat confidently extrapolated. Records that are ambiguous, because not clearly evincing a pattern, may tell us little. But a record that is absolute or especially one-sided likely reveals the Judge's strong leanings and deeply held perspectives on the issues.

So let's look at the Judges' voting records in these 8 divided civil decisions and see what if anything they reveal:
(click to enlarge)

And here is the flip-side of those same records: 

What immediately stands out is the 100% (or 0%) record of Judge Eugene Fahey. Voting the same way in every case. He participated in 6 of the 8 cases and, in each of those cases, he sided with the party complaining of being injured by the negligence or wrongdoing of a landlord, employer, health professionals, or other civil defendant. Moreover, in 3 of those 6 cases, he publicly took issue with the majority of his colleagues in a dissenting opinion. There is no mistaking Fahey's passionate leanings in these kinds of cases.
(We saw a similar very sympathetic perspective toward victims in Judge Fahey's record at the Appellate Division. See Judge Fahey's 'Tendencies.'

As might well be expected from Judge Jenny Rivera's strongly liberal record in criminal cases, her record is strongly liberal in these civil appeals as well. She participated in all 8 cases, and she sided with the complaining injured party in 6 of them. In 2 of those she authored a dissenting opinion. In one she was by herself, [Fahey did not participate in that one.] In the other, she was in the 4-3 minority,

At the other end of the Court's civil appeals spectrum are Chief Judge Difiore, and Judges Eugene Pigott and Michael Garcia. [DiFiore's figure is slightly different because she did not participate in one of the cases.] Their records may not be quite as categorical as Fahey's. But they are nearly so.

DiFiore, Pigott, and Garcia each voted for the civil defendant--i.e., the landlord, employer, hospital, etc.--in every case but one. Beyond that, in the 3 civil appeals that were decided by a 4-3 vote--where they were part of the majority and, thus, a switch by any one of them would have changed the outcome--all three of them voted against the complaining injured party.

The remaining two Judges, Sheila-Abdus-Salaam and Leslie Stein, have voting records siding some of the time with the injured party and some of the time with the civil defendant. In fact, Abdus-Salaam's votes were divided equally, and Stein's votes almost so. [Stein did not participate in one of the cases.] On the other hand, though their numbers may be similar, they did not necessarily vote together in these cases. Indeed, they were on opposite sides in 3 of the 7 cases in which they both participated.

Finally, for those who like to see all the data in one neat, though noisy, package, here's that single graph: 

In the next post, we'll conclude with some overall observations.

Sunday, October 16, 2016

Early DiFiore Court Patterns (Part 4 - Criminal Appeals Voting)

We've previously looked at how frequently each Judge on New York's highest court has been dissenting (See Part 1). We then looked at the lineups in the Court's 4-3 decisions, as well as how frequently each Judge has been in the majority in those closely divided decisions (See Part 2 criminal casesPart 3 civil cases and totals).

Now let's take a look at the Court of Appeals Judges' ideological voting patterns in the criminal cases. How frequently has each Judge been siding with the accused? How frequently with the prosecution? More specifically, what are the Judges' voting patterns in those cases where some of them took a more pro-prosecution position than did other members of the Court? Or a more pro-accused position than others?

The figures and graphs that follow reflect every divided criminal decision rendered by New York's high court in the first 6 months of Janet DiFiore's tenure as Chief Judge. That is, every case beginning with those heard in February of this year when DiFiore first presided over arguments, through those decided on the Court's August 30th decision day.

These divided criminal cases encompass all those where a dissenting opinion argued for a result that was more favorable either to the accused or to the prosecution than that rendered by the majority. These also include all those where a separate concurring opinion took issue with the majority on a significant substantive matter, e.g., arguing for a different rule of law that was either more protective of the rights of the accused or was more supportive of the prosecution.

There were 17 such decisions during this early 6-month period of the DiFiore Court. The following graphs reflect the voting of the Judges in these cases.

The first graph displays the percentage of cases in which each Judge voted in support of a position more favorable to the rights of the accused than others on the Court did. These votes are denominated "Liberal/Pro-Accused."
(click to enlarge)
(N.B., the flip-side, "Conservative/Pro-Prosecution" graph is included below.)

As this graph shows quite vividly, Judge Jenny Rivera, who we've previously seen is the Court's most frequent dissenter by a wide margin (See Part 1.), also has the Court's most liberal, pro-accused voting record by a wide margin. Indeed, each of her fairly frequent dissents argued for a more pro-accused position than that adopted by the majority. Moreover, as her 94% liberal record indicates, she sided with the more pro-accused position in every one of the 17 divided criminal cases but one. That was People v. Gray, in which she joined Judge Sheila Abdus-Salaam's majority opinion rejecting a ineffective counsel claim.

The voting record of Judge Abdus-Salaam happens to be the second most pro-accused on the Court. But her record, as well as the very similar one of Judge Eugene Fahey, is half as liberal as Rivera's. Notably, while Rivera has sided with the accused far more frequently than the Court and than any of her colleagues, Abdus-Salaam's and Fahey's records also fall on the pro-accused side of the Court's spectrum--albeit by a much slimmer margin than Rivera's.

On the opposite end of that spectrum is Judge Michael Garcia. He participated in 15 of the 17 divided criminal decisions. He did not cast a vote in favor of the more pro-accused position in any of them.

As we've previously seen, Garcia was in dissent in 5 of the 7 criminal cases where the Court was divided by a 4-3 vote. (See Part 2.) Among the most significant of those cases was People v. John, where he disagreed with the DiFiore-authored majority opinion that recognized a defendant's right to confront an analyst responsible for the prosecution's DNA report. Notably, Garcia authored no other dissent, nor any majority opinion in the divided criminal cases.

The next most pro-prosecution record on the Court during this period belongs to Judge Eugene Pigott. He authored 4 opinions in these divided criminal cases. In each one he took the more pro-prosecution position. In one of those, a dissent, he was joined not only by Garcia--as we just saw, not surprising--but also by DiFiore. It was the only case, criminal or civil throughout this period, where the Chief Judge joined (or wrote) a dissent.

In that case, People v. Berry, DiFiore joined Pigott's dissent which argued that the evidence presented did prove the defendant guilty of permitting children in an apartment with illegal drugs. DiFiore's record, in the 14 divided criminal cases in which she participated, is identical to that of the Court as a whole, except for that one case. As we saw previously (See Part 1.), the Chief Judge has been in the majority in every case since she joined the Court except one--Berry is that one.

Regarding Judge Leslie Stein, her 35% liberal/pro-accused record equals that of the Court as a whole. But, her record is identical to the Court's in number only. In the 4 opinions she authored in these 17 divided criminal cases, every one sided with the accused. Two of those were dissents. In one of them, she wrote in opposition to Abdus-Salaam's majority opinion in People v. Gray (mentioned above), arguing that defendant's trial counsel was ineffective for failing to seek a rehearing on a newly significant Miranda issue.

So that's the Liberal/Pro-Accused spectrum on the Court for the first 6 months of the DiFiore Court. Of course, that spectrum can be viewed from the reverse perspective. So, as promised above, here it is, the "Conservative/Pro-Prosecution" graph:
Nothing new. Just the flip-side of the spectrum in the first graph. Again, Judge Rivera's and Judge Garcia's records are decidedly the most Pro-Accused and Pro-Prosecution on the Court, respectively.

Finally. for those who'd like to see both sets of data in a single graph, here that is:
That's a bit noisy for me. But all the Pro-Accused and Pro-Prosecution figures, for each of the Judges and for the Court as a whole, is there in one tidy package.

In the next post, we'll take the same look at the civil cases.

Wednesday, October 12, 2016

Early DiFiore Court Patterns (Part 3 - The 4-3 Lineups [civil cases])

In the last post, we looked at the 4-3 lineups in criminal appeals. In this post, continuing with our examination of the first 6 months of New York's highest court under Chief Judge Janet DiFiore, we'll proceed to those 4-3 lineups in civil cases.

As was noted previously, the Court of Appeals divided 4 to 3 in a total of 10 cases during this 6 month period. Of those cases, 7 were criminal appeals, 3 were civil. Despite this much smaller number, however, several very notable patterns still emerge.

Here are the cases and their lineups [Again, click on any lineup pic to enlarge.]:

Civil Cases
Sherman v. NYS Thruway Auth. (5/5/16): the slip and fall claim was precluded because a storm was held to be still in progress.

Wally G. v. NYC Health & Hosps. Corp. (6/9/16): the city defendant's possession of the relevant medical records was held not to excuse the late notice of claim of the defendant's medical malpractice.

Pasternak v. Laboratory Corp. of Amer. (6/30/16): the airline pilot's causes of action in fraud and negligence against the defendants who performed and evaluated the FAA required random drug test were held to be not sustainable under New York law.

Alright, that's all there is. But as noted above, a few notable observations can be made (and are summarized in the graph below the following discussion).

Chief Judge DiFiore was in the majority in all 3 cases. Recall that she was in the majority in 6 of the 7 closely divided criminals cases--more frequently than any other member of the Court. That's a total of 9 out of the 10 decisions in which the Court split 4 to 3.

Judge Eugene Pigott was also in the majority in all of these civil cases. But that contrasts with his being in the majority in only 3 of the 7 closely divided criminal cases. That's a total of 6.

Similarly, Judge Michael Garcia was in the majority in all of these civil cases, but was in the majority in only 2 of the 7 corresponding criminal decisions. His total was 5.

Judge Sheila-Abdus-Salaam was in the majority in 5 of the 7 closely divided criminal decisions--she, along with Judge Eugene Fahey, was 2nd only to DiFiore on that score. But she was in the majority in only 1 of these civil cases. Total: 6.

As for Judge Fahey, his being in the majority in 5 of the 7 closely divided criminal cases sharply contrasts with his being in the dissent in all 3 of these civil cases. Total: 5.

Like Fahey, Judge Jenny Rivera was in dissent in all 3 civil cases. That means that her total being in the majority in all the 4-3 decisions was 4--all in criminal cases. That also means that she and Fahey, who voted together in all 3 of these civil cases, voted together, whether in the majority or dissent, in 7 of the total 10 closely divided cases: 4 criminal and 3 civil.

Rivera was together with Abdus-Salaam, the other multiple dissenter in these civil cases, just as many times: in 5 of the criminal cases and 2 of the civil.

Judge Leslie Stein was in the majority in 2 of the 3 closely divided civil cases. That number added to her majority votes in 3 of the corresponding criminal appeals brings her total to 5--exactly half of the 10 combined criminal and civil 4-3 decisions.

Here's all that in a graph:
(click to enlarge.)
Well, there it is in beautiful technicolor!

One last point about these 4-3 civil cases. In each one, the Court decided against the injured plaintiff seeking compensation. Is that a trend? A pattern when all the divided civil cases--not just the 4-3's--are considered? And is there a corresponding conservative pattern in the criminal cases? And patterns in the individual Judges' voting records?

We'll see beginning in the very next post.

Thursday, October 6, 2016

Early DiFiore Court Patterns (Part 2 - The 4-3 Lineups [criminal cases])

As noted in the last post, New York's highest court has rendered 10 decisions with a bare 4 to 3 voting majority since Janet DiFiore assumed the position of Chief Judge. The lineups in those cases, where a single Judge's vote made the difference and could have changed the Court's ruling, are quite revealing.

Divided decisions, where the majority is opposed by a dissenting opinion or by a separate concurring opinion on a significant substantive matter, provide insights into the Judges' strongly held positions. These are the positions held firmly enough and considered important enough that disagreements within the Court are expressed openly. And those 4-3 divided decisions, where the majority prevailed by a single vote--where a switch in just one of those votes would have switched the majority--may be the most revealing of all.

Let's take a look at the lineups in those cases [Click on any lineup pic to enlarge.]:

Criminal Cases
People v. Johnson (3/29/16): admitting the co-defendant's out-of court statement was reversible error.

People v. Badalamenti (4/5/16): a concerned parent had "vicarious consent" to record his minor child's conversation with the other, abusing parent; the prosecution could use as evidence.

People v. Nelson (4/5/16): though harmless in this case, it is error for a trial judge to allow spectator shirts bearing a deceased victim's photograph in the courtroom.

People v. John (4/28/16): a defendant has the right to cross-examine an analyst behind the government's DNA report.

People v. Frankline (6/9/16): though not prejudicial in this case, it was error for the prosecution to introduce the defendant's past crimes.

People v. Berry (6/14/16): the evidence was insufficient to prove that the defendant had the requisite control over the children to be guilty of permitting them to be in the apartment with illegal drugs.

People v. McCullough (6/28/16): the trial judge did not abuse discretion in concluding that the corroborating evidence was sufficient to establish that the eyewitness identification was reliable.

These are the 7 criminal decisions rendered by a  4-3 majority in the first half-year of the DiFiore Court. Stated differently, these are the 7 criminal cases where the actual ruling announced by the Court--i.e., the disposition and the rule of law--was decided by a single vote.

We will look at the civil cases in the next post. But before we do, let's consider a few quick observations about these 4-3 criminal cases.

Chief Judge DiFiore was in the majority in all but one of these closely divided cases. No other member of the Court was in that single-vote majority as frequently. No other member of the Court could have changed as many of the Court's rulings--6--by changing their votes.

Right behind DiFiore were Judges Sheila Abdus-Salaam and Eugene Fahey. They were each in the majority in 5 of these 4-3 decisions and, therefore, each of them could have changed the Court's rulings in 5 of these cases by switching sides.

At the other end of the spectrum was Judge Michael Garcia. He was in the majority in only 2 of these cases. That is, in 5 of these 7 closely divided criminal decisions, he was either dissenting or expressing a significant substantive disagreement with the majority in a separate concurring opinion. In short, in most of these 4-3 criminal decisions, his vote was unnecessary to the majority, and a change in his vote would not have affected the Court's ruling.

Now, lest any of this be misconstrued, let me be clear. Voting in the majority hardly equates with being right or wise or more faithful to legal principles or precedent. And disagreeing with the majority hardly means the opposite. Indeed, every student of the law knows well that majority opinions often fail the test of time and dissenting positions are often vindicated. But those are matters far beyond the recitation of lineups and the counting of votes with which we are concerned here.

On the other hand, the lineups and the votes do reveal which Judges' positions are prevailing and which are not. Which Judge or Judges are leading the Court, or helping to take it to their preferred positions, or are at least in sync with the Court's direction. And which Judge or Judges are not.

We will be looking at the Judges' voting patterns in coming posts. But in the very next one, we will look at the Court's 4-3 decisions in civil cases.