New York Court of Appeals: Sharp Pro-Defendant Swing in Criminal Cases

A review of the year that just concluded (fall ’07 to spring ’08) shows another dramatic change taking place at New York’s highest court. As previously reported on the New York Court Watcher, the number of dissents has more than doubled at the court over the past five years. (See "New York Court of Appeals: More Dissents in Kaye Court (Part 2: Who? How Many? What?)," posted July 10, 2008.) Now it appears that the proportion of decisions favoring the rights of the accused has also escalated. Taking into account those criminal cases that divided the court this year—i.e., those eleven nonunanimous, particularly difficult, highly revealing decisions [again, see the July 10 post for a brief discussion of dissents]—shows that the court sided with the accused 64% of the time. That is a striking percentage when compared to the figure for previous years. That figure was 36% the year before. It was 35% the year before that. Indeed, over the entire five year period, fall ‘01 to spring ’06, the figure was 32% in favor of the accused. As was said regarding the rise in dissents, something’s happening!

[Figures for pro-defendant vs. pro-prosecution decisions in criminal cases since 1990 are depicted in the graphs included in my "Court of Appeals of New York State: The Judges, The Selection Process, Making the Current Court," Rockefeller Institute, October 15, 2007; available at http://ssrn.com/author=1031212.]

A quick look at what lies behind this past year’s figures begins to explain what is happening. The two remaining appointees of Democratic Governor Cuomo, Chief Judge Judith Kaye and Judge Carmen Ciparick, sided with the defendant in 73% and 64% of the divided cases, respectively. The newest member of the court, Democratic Governor Spitzer appointee Judge Theodore Jones, did so 82% of the time. The three of them currently constitute a strong block sympathetic to the rights of the accused on the seven member court.

Additionally, Judge Robert Smith, appointed by Republican Governor Pataki, voted for the defendant in 45% of the divided cases. His voting was significantly more favorable to the accused than the court as a whole has typically been for more than a decade—i.e., since the court turned considerably pro-prosecution following the public castigation of the court, early in the Pataki administration, for “coddling criminals.”

Two other Pataki appointees, Judges Victoria Graffeo and Susan Read, continued to have strong pro-prosecution records. They voted in favor of the accused in 27% and 18% of the divided cases, respectively. The final member of the court, Pataki appointee Judge Eugene Pigott, voted for the defendant 36% of the time—about the same as the court as a whole had been doing over the last several years.

In short, the divided criminal cases this past year show three judges with strongly pro-defendant voting records; one with a moderate record which, however, is pro-defendant compared to the court as a whole in recent years; and three with pro-prosecution records ranging from very strongly so to moderately so.

Future posts will further explore the court's pro-defendant shift, taking a closer look at the individual judges' records.