Wednesday, March 27, 2019

NYCOA: Criminal Appeals (Part 4c)--More Recent Dissents That Should Have Been Majorities

In the last post, we looked at two dissents that protested majority decisions at New York's highest court that overturned convictions because of errors having nothing to do with guilt or innocence, and where there was no suggestion that the alleged error by the trial judge had caused any prejudice to the defendant. (See Part 4b.)

Now we turn to the other two previously previewed dissents that protested majority decisions that upheld convictions, despite serious questions about guilt, and where the Court of Appeals would not even permit a hearing to consider actual innocence.

Again, cheers for those dissents as glimmers of hope amidst dismay at the majority decisions.

People v. Tiger (2018) (Wilson, J., dissenting)
People v. Thibodeau (2018) (Rivera, J., dissenting)
In both Tiger and Thibodeau, the defendants sought post-conviction relief on the basis of actual innocence. They each sought a hearing, pursuant to New York's Criminal Procedure Law, to present evidence that had not been previously available or previously considered and that raised serious questions about guilt. In both cases, the Court of Appeals majority would not even permit a fact-finding hearing to assess that evidence and consider the claims of actual innocence.

In Tiger, by a 5-2 vote, the Court held that a guilty plea was an absolute bar to a subsequent innocence claim. According to the majority, "a voluntary guilty plea is inconsistent with a claim of factual innocence."

The majority rejected the request for an innocence hearing despite the circumstances which led the defendant to plead guilty. Despite the defendant's exoneration of any wrongdoing in a subsequent civil case. And despite the unanimous conclusion of the Appellate Division (New York's intermediate appeals court) that the defendant had established a prima facie showing of innocence that justified a hearing.

Judge Wilson
Judge Rowan Wilson emphatically decried the rigidity of the majority's ruling and its seeming indifference to the injustices it perpetuates:
Natascha Tiger pleaded guilty but is innocent. 
Ms. Tiger is neither the first nor last innocent person to plead guilty. Ms. Tiger's case...provides a compelling example...Faced with seven years in prison, she pleaded guilty after her lawyer told her she could not afford to hire an expert and a guilty plea could result in a suspended sentence. 
Subsequently, when the [victim's] family sued Ms. Tiger[, e]ven though [they] had to satisfy only the "preponderance of the evidence" standard, and not the "beyond a reasonable doubt" standard, the jury found that Ms. Tiger did not cause the [victim's] injury. 
Our modern criminal justice system "is for the most part a system of pleas, not a system of trials."...We know that some completely innocent people plead guilty. In 2016, a record-setting 166 people were exonerated nationally. Of those, 74 exonerees, or 45 percent, were convicted based on guilty pleas. Of the nearly 2,000 individuals who were exonerated between  1989 and October 2016, 17 percent pleaded guilty....Research shows that innocent defendants may be motivated to plead guilty for a variety of reasons: most prominently, the threat of a more serious charge and a far longer sentence upon electing to go to trial, the fact that a plea will offer a release from pre-trial detention if the offense is low-level, and concerns about the defendant's lawyer or the availability of evidence that would conclusively demonstrate innocence. 
Relatedly, we also know that innocent suspects falsely confess...More than 20 percent of known exonerations for murder were at least in part due to false confessions... Consistently with the research on guilty pleas, the research on false confessions shows that "[t]he most potent psychological inducement is the suggestion that the suspect will be treated more leniently if he confesses and more punitively if he does not."  
The majority is focused on the importance of the finality of the plea process, and the appropriate conservation of judicial resources. Those concerns are weighty. But "conservation of judicial resources" does not appear alongside "life, liberty and the pursuit of happiness."  
Former Chief Judge Jonathan Lippman described our courts' mission thus: 
"Every wrongful conviction is a stain on the reputation of the courts, eroding public trust and confidence in the legitimacy of our institutional status and the fairness and accuracy of our decisions. This only underscores why the judiciary, the focal point of the entire justice system, is absolutely duty-bound to lead the way in making sure that the criminal justice process is as fair and accurate as humanly possible." 
Today's decision inexplicably and unnecessarily denies that mission, eschewing our obligation in favor of further legislative action or executive clemency. I will not. [Citations omitted throughout.]
To which I say, Amen!

In Thibodeau, in an unsigned memorandum for a bare 4-3 majority, the Court of Appeals rejected another substantial actual innocence claim on the same day. The defendant's post-conviction motion was denied by a hearing judge, despite considerable new evidence that others actually committed the kidnapping for which the defendant was convicted many years earlier. The hearing judge ruled that the evidence didn't even raise a "probability" that the verdict at trial would have been "more favorable." The Court of Appeals majority upheld the ruling below on the ground that it was not an abuse of discretion.

Judge Rivera
Judge Jenny Rivera's dissenting opinion set forth in detail the new evidence. In her view and that of two other Judges who joined her, that evidence severely undermined a conviction that was somewhat troubling from the start, and it persuasively demonstrated much more than a mere "probability" that others were guilty and the defendant innocent:

Defendant Gary Thibodeau has been incarcerated for over two decades—almost a third of his life—for the kidnapping of a young woman who disappeared one morning and was never seen again. No physical or forensic evidence connected defendant to the abduction, and no witness ever identified defendant as the kidnapper or placed him at the scene where the victim was taken. Nor has defendant confessed to having committed the crime; rather, he has always maintained his innocence. He now asserts that newly discovered evidence points to three men who have admitted to abducting and murdering the victim[, and he] asks for an opportunity to present this third-party culpability evidence to a jury. 
Defendant presented evidence that three [identified] men...abducted the victim..killed her, and disposed of her body by cutting it up and sending it to Canada in a vehicle being scrapped. The evidence consisted of testimony by a multitude of witnesses to these three men's inculpatory statements, as well as documents that corroborated their guilt and defendant's innocence. 
At the hearing on the motion, defendant presented additional testimony by various witnesses implicating [the three men] in the abduction, including confessions by these three to the victim's abduction and murder. 
[D]efendant presented an exhaustive amount of corroborating evidence for the confessions. [Inter alia,]several witnesses have testified to statements by these three declarants that not only implicate them in the victim's disappearance, but constitute admissions of guilt of kidnapping and murder. [Moreover, t]here is no evidence that the witnesses concocted these powerful third-party statements of guilt for defendant's benefit, nor of a motive for the declarants to inculpate themselves in a kidnapping and murder or exculpate defendant. The witnesses are a variety of ages, occupations, and levels of closeness to the three declarants. The incriminating statements themselves are also varied. At times, the declarants explained what had occurred...Other times, the statements were made as a blatant commentary that the declarant was immune to prosecution because the victim would never be found and the wrong persons—the Thibodeau brothers—were blamed for the crime. 
Contrary to the People's argument, it is not insignificant or irrelevant to our analysis that the various statements connected these declarants and pronounced their guilt of abducting the victim, her murder, and the subsequent cover-up. Far from suggesting fabrication or misperception, the interconnected and mutually-confirming nature of the statements reaffirms their reliability and the "hallmark of trustworthiness" attributed to declarations against penal interest. The quantity of overlapping statements also lends further support for their admission. 
Defendant met his burden of showing by the preponderance of the evidence that "[n]ew evidence has been discovered . . . which is of such character as to create a probability" of a verdict "more favorable to the defendant" (see CPL 440.10 [1] [g]). It is also noteworthy that the People's trial evidence was not overwhelming. No physical or testimonial evidence at trial placed defendant at the store at the time the victim disappeared, and no forensic evidence was found at defendant's home or in [the] van linking defendant to the victim. It is difficult to imagine these statements 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 to tip the scales in his favor. [Citations omitted throughout.]
It is difficult to imagine, as Judge Rivera wrote, that this new evidence would not have added uncertainty and tipped the scales. And difficult to imagine why a majority of the Judges would not err on the side of allowing a full post-conviction review of these two very possibly wrongful convictions. At the least, these cases were very close. Why err on the side that might well be perpetuating grievous injustice?

As for these two dissenting opinions--like those reviewed in the preceding post and like all thoughtful, ardently felt dissents--they gave voice to serious concerns about the majority opinions and  they demonstrated an independent vigilance that should always be welcomed--whether we happen to agree or disagree with the Court's decisions.

Monday, March 25, 2019

NYCOA: Criminal Appeals (Part 4b)--Recent Dissents That Should Have Been Majorities

John Marshall Harlan
Dissented in Plessy
A strong dissenting opinion is something to celebrate. (See e.g., discussion in Part 4a.)
But, of course, it is often reason for considerable disappointment that it was not the court's majority.
Oliver Wendell Holmes
"The Great Dissenter"

Indeed, sometimes there is cause for outright dismay, exasperation, and bewilderment that the majority failed to embrace the dissent's wisdom, fairness, candor, or other emphatic virtue.

A few recent dissenting opinions at New York's highest court fall into that category.

To be sure, such a phenomenon is neither unique to nor characteristic of the current Court of Appeals. It is not difficult to identify examples of the same among the decisions of virtually any court at virtually any time. Judges are fallible like the rest of us. Biased, obstinate, foolish, and for other reasons clearly wrong sometimes. Just like the rest of the human species.

But to place a positive note on this present discussion, let's focus on the wisdom, fairness, candor, and levelheaded common sense of dissents that demonstrate an admirable refusal to acquiesce in a lamentable decision by the majority. There have been several such dissents at the Court of Appeals recently. A few illustrative ones in criminal cases seem quite compelling.
(It turns out that, in two of my examples, the dissents argued in favor of the prosecution; in two others, in favor of the accused. That was not deliberate.)

In two of the cases, the majority reversed convictions based on a technical error of the trial judge. In neither case was there any indication of any prejudice to the defendant. Nor any indication that the defendant's lawyer thought so--or even thought there was an error. Nor any indication that the defendant might not be guilty. Nevertheless, the entirely reliable convictions were overturned by the application of a categorical rule for which the majority allowed no exception.
(I confess that I have long viewed the per se reversal rule in question to be absurd and in some applications outrageous.)

In two other cases, the majority upheld convictions. They did so despite strong indications that the defendants might actually be innocent. In each of those cases, the prosecution's case was weak. The evidence of guilt was questionable. And that evidence was contradicted by subsequent discoveries and other evidence that was not previously considered. Nevertheless, the Court's majority refused to allow bona fide challenges to the very possibly wrongful convictions.

Let's start with the first two cases and the corresponding dissenting opinions.

People v. Parker (1918) (DiFiore, C.J., dissenting)
People v. Morrison (1918) (Garcia, J., dissenting)
In both Parker and Morrisson, the deliberating juries sent notes to the trial judges seeking clarifications. Because the judges in those cases did not place some of the discussions with defense counsel about the contents of the notes on the record, the Court of Appeals majority reversed the ensuing convictions. According to the majority, these were merely applications of the Court's 1991 decision in People v. O'Rama.

The majority in both cases did so even though the trial records indicated that there were discussions about the notes. Even though the defense counsel never complained that the discussions were not placed on the record. (In legal terms, therefore, no objection to an error was "preserved.") Even though there were no claims that the defendants were harmed in any way by the trial judges' failure to place the discussions on the record. Even though neither these record failures nor anything else suggested that the defendants were wrongfully convicted.

No, the convictions were reversed in both cases because of the rule that the discussions of the substance of jury notes must be placed on the record. And more to the point, because of the majority's inflexible insistence that a trial judge's failure to do so unqualifiedly mandates the reversal of a conviction--whether or not there is even a suggestion that the defendant is harmed, and whether or not the defendant or counsel ever raised a concern about the matter.

In Parker, the Court, by a 4-3 vote, applied its categorical O'Rama rule to reverse the robbery convictions of two defendants. In her dissenting opinion, Chief Judge Janet DiFiore protested the majority's rigid per-se reversal rule as not being required by O'Rama, and as unnecessarily overturning convictions without regard for the realities of actual trial proceedings or for the facts of the specific case:
[T]his Court today...requires the reversal of a conviction — purportedly for an error that impacts the essential validity of the trial — based on the technical defect of failing to make an adequate record (CPL 470.05 [1]). The rule operates without regard to the specific facts of whether counsel actually received meaningful notice of the content of the jury note. Where, as here...the record demonstrates there was an off the record discussion of the jury notes[,] we have no reason to presume that a fundamental flaw in the trial process occurred.
The application of the majority's per se reversal rule on this record ignores the realities commonly attending the trial process and, ironically, finds error in what may only be the court's failure to record the absence of error. 
It should be noted that, counsel for appellants have not... represented to th[is] Court that trial counsel did not receive notice of the contents of [the] notes...Rather, the only argument advanced in our appeal relates to whether the record evidences such notice. This argument is in keeping with the majority's per se rule, which allows counsel who receives meaningful notice of the content of a jury note "to sit idly by while error is committed" and then argue that the record does not reflect such error.

Judge Garcia
In Morrison, decided the same day in another 4-3 vote, the Court again applied its unqualified O'Rama rule to overturn a rape conviction, again despite ambiguity in the record and despite no complaint by defense counsel at trial or throughout the first round of appeals. In his dissenting opinion, Judge Michael Garcia called for the abandonment of the per se, no-preservation-required O'Rama rule as contrary to basic common sense:
Today, the Court reverses defendant's conviction...based solely on an unpreserved claim. The majority forgives defendant's failure to preserve his challenge by relying on a record-making deficiency—the trial court declined to read a jury note into the record—even though defense counsel was aware of the note at issue and was informed that the trial court would not read the note aloud. The record also supplies reason to believe that defense counsel received the note and read its contents. 
Rather than simply asking for the contents of the note, or lodging any form of an objection, defendants in these circumstances are better off—under this Court's precedent—remaining silent and hoping for an acquittal; in the event of an unfavorable verdict, their claim will secure an automatic reversal on appeal...The sweeping rule of O'Rama should no longer bind us. 
In this case, for instance, defendant failed to object to the trial court's handling of [the] jury note...He also failed to raise his jury note claim in his first appeal to the Appellate Division. And apparently, he failed to raise it in his first application for leave to appeal to this Court. Defendant first raised his jury note claim in a coram nobis application eight years after his trial.
Once again, the majority prefers to wait for a legislative fix for a problem of the Court's own making [i.e., its expanded application of People v. O'Rama]. Until then, the hard lessons continue.
I personally could not agree more with the Chief Judge and Judge Garcia. The categorical, automatic reversal rule transforms a technical trial error into a fundamental flaw. As such, it not only operates to undo entirely reliable, justly secured convictions, but it does so without regard for whether defense counsel raised any objection or there was anything even worthy of an objection. As I acknowledged earlier, this rule--which the Court has extended far beyond the fact pattern in the O'Rama case itself--is one that I've long thought absurd and its application sometimes outrageous.

In the next post, we'll look at the other two cases I previewed above.

Friday, March 22, 2019

NYCOA: Criminal Appeals (Part 4a)--Recent Dissents That Should Have Been Majorities

There are famous dissents that were right when written and were ultimately vindicated in cherished landmarks. John Marshall Harlan's dissent, condemning "separate but equal" in Plessy v. Ferguson, became the law of the land in Brown v. Board of Education. Louis Brandeis's dissent in Olmstead v. United States, where he urged a less cramped understanding of search and seizure protections, was adopted by in Katz v. United States. Hugo Black's dissent in Betts v. Brady, arguing for the right to counsel in state prosecutions, became the majority in Gideon v. Wainright.

New York's highest court has had similar experience with dissenting opinions.

Perhaps the most widely celebrated in recent years is Judith Kaye's 2006 dissent in Hernandez v. Robles, where her call for a right to marry for same-sex couples was embraced shortly thereafter in both state statute and the Supreme Court's Obergefell v. Hodges decision.
Matthew Jasen's 1985 dissent in Tebbutt v. Virostek, urging the recognition of a mother's cause of action for the medically negligent killing of her unborn child, became the law of the state 19 years later in Broadnax v. Gonzalez.

George Danforth's dissenting condemnation of "separate but equal," in the Court of Appeals' 1883 King v. Gallagher decision, predated Harlan's Plessy dissent by 13 years and the Supreme Court's vindication by seven decades.




While perhaps not as dramatic as the foregoing, there are recent dissenting opinions at the Court of Appeals that seem clearly preferable to the positions taken by the majority. To be sure, these are my opinions. What is not simply my opinion, however, is the value of published dissents.

These open disagreements with the majority are valuable in identifying perceived weaknesses in the Court's decision. This, in turn, forces the majority either to address those concerns--thereby improving its own opinion--or to leave them unaddressed and, thereby, give rise to legitimate questions about the strength and candor of the decision.

Dissenting opinions also underscore the fact that the case is a close one. That the Court had to choose between competing arguments. That the judges had to exercise judgment--a sometimes radical proposition today. That the Court could legitimately have decided the case differently, but for reasons explained--though not always--the majority preferred one possible decision over another.

And finally, of course, dissenting opinions may simply be much more wise or fair or humane or for some other reason much better or legally correct. If so, they may well be recognized as such and ultimately embraced by a different majority or by the legislature.

As one who follows Courts, including decisional and voting patterns, I must confess another reason for welcoming dissenting opinions. Judicial scholars look to divided court decisions for insights into the policies, principles, preferences, philosophies--I could go on with this alliteration, but you get the point--of the court and its individual members. Patterns emerge from the choices made And the choices that have been made are evident when the options are spelled out in dueling majority and dissenting opinions. Beyond that, over a series of divided decisions--i.e., decisions with a dissent or a substantive separate concurrence--the choices that have been made confirm those patterns and underscore, in Cardozo's phrase, "stream[s] of tendency."

All of this, of course, is not only valuable to judicial scholars. It is also indispensable for lawyers who argue before the judges and who look for insights into their votes and decisions. Likewise for citizens who wish to be informed about the final arbiters of our law, about those who are dispensing justice. And, at least as vitally important, for the judges themselves who--as Cardozo (again) and Holmes and other jurists have recognized--are often unaware of their own leanings, deep-seated values and biases, and judicial philosophies.

With those prefatory considerations in mind, we will proceed in the next post to identify some recent dissenting opinions of the New York Court of Appeals. These not only help to identify choices made and patterns confirmed. But they also--at least in my view--are superior to the corresponding majority opinions (i.e., to use my own earlier line, "more wise or fair or humane or for some other reason much better or legally correct").

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.