New Mexico Supreme Court: Split Spectrum in Criminal Cases (Part 1: Two + Two + One)

A review of the New Mexico Supreme Court's decisions over the past five years reveals that 41 of them divided the justices. That is, in 41 cases between August 1, 2003 and July 31, 2008, at least one justice disagreed publicly with the majority of the court in a dissenting opinion. That represents approximately 17% of 245 total decisions. (A previous post on the New York Court Watcher discussed this and the contrast with Arizona's high court. See Arizona and New Mexico Supreme Courts: Contrast in the Southwest, August 6, 2008.) Of these 41 nonunanimous decisions, 26 of them involved criminal law, criminal procedure, or some other issue of criminal justice. The decisional and voting breakdown in these 26 divided criminal decisions shows some patterns that are as fascinating [at least to court-watching junkies] as they are clear. Let's begin with the most basic--and perhaps most telling--of patterns: the pro-prosecution versus pro-defendant voting and decision tabulations.

GRAPH 1

(BTW, my wife has advised me, and demonstrated to me, that the graph may be enlarged and thus made clearer by simply clicking on it. I had no idea.)

GRAPH 1 depicts the pro-prosecution versus pro-defendant voting record of each justice in the 26 divided criminal cases. More specifically, it shows the percentage of these decisions in which each justice took the position more favorable to the prosecution on the issue that divided the court; it likewise shows the percentage of positions taken more favorable to the accused. It also depicts the corresponding pro-prosecution and pro-defendant percentages for the court itself--i.e., the decisions themselves.

[It may be worth noting for some that the study of a court's divided decisions has long been understood to be particularly valuable. They are especially revealing. See, e.g., the brief discussion on this blog in New York Court of Appeals: More Dissents in Kaye Court (Part 2: Who? How Many? What?), July 10, 2008, and a somewhat more detailed one in my New York's Chief Judge Kaye: Her Separate Opinions Bode Well for Renewed State Constitutionalism at the New York Court of Appeals, 67 Temple L. Rev 1163 (1994), available at http://ssrn.com/abstract=1154671.]

A look at GRAPH 1 reveals some evident patterns. Two justices of the court have been quite pro-prosecution in their voting over the past five years. Two have been quite pro-defendant. The remaining one has been about 50-50. Overall, then, it would seem that the court's membership has been somewhat evenly balanced ideologically. And not surprisingly, the court's decisional record for the five years has been quite balanced.

At one end of the New Mexico court's ideological spectrum have been Justices Patricio Serna and Petra Jimenez Maes. Their voting records were, respectively, 81% and 73% pro-prosecution in the divided criminal cases. At the opposite end of the court's spectrum have been the current Chief Justice Edward Chavez and Justice Richard Bosson. Their voting records, respectively, were 73% and 65% pro-defendant. In between these two pairs of justices was Justice Pamela Minzner with an evenly divided record: 48% pro-prosecution, 52% pro-defendant. (The Court and the state mourned the passing of Justice Minzner in August 2007.) The record of the court as a whole was closest to that of Justice Minzner, but somewhat more pro-prosecution at 58%. (Justice Charles Daniels, who was appointed to the court in November 2007, has thus far participated in only one divided criminal decision. [He joined a pro-defendant dissent.] Obviously too few too for the purposes here.)

So, Serna and Maes at one end, Chavez and Bosson at the other, the court itself and Justice Minzner somewhere in between. That's roughly the way it was over the course of the past five years.

Interestingly, however, a closer examination of the five years reveals some changes within them. The direction of the court and the voting of some justices seem to have changed somewhat in the latter part of the five year period. We'll take a look at that in a forthcoming post.

Arizona Supreme Court: Few Divisions But Notable Revelations in Criminal Cases (Part 1: The Court and the Chief)

As discussed previously on New York Court Watcher, the Arizona Supreme Court's decisions are divided very infrequently. (See Arizona and New Mexico Supreme Courts: Contrast in the Southwest, August 6, 2008.) In the past five years, August 2003 through July 2008, only 29 of the court's decisions were not unanimous. Indeed, a more accurate number is even smaller. 11 of the total 29 divided decisions actually represent the same lone justice's same disagreement with the majority over the same issue. Usually in the same single dissenting paragraph. In each of those 11 cases, the now-retired Chief Justice Charles Jones dissented alone to insist that a Ring error required an automatic reversal, not the harmless error analysis engaged in by the majority. If those 11 nonunanimous decisions are treated as the single division they actually represent, then the total 29 divided decisions over the past five years is reduced to 19.

Among these 19 divided decisions, 10 were criminal ones. GRAPH 1 indicates how each member of the court voted in the 10 divided criminal cases--i.e., how frequently siding with the prosecution and how frequently with the defendant.

GRAPH 1

At first blush, it may well seem that little can be gleaned from only 10 decisions. The reality, however, is the opposite. Divided decisions from a court that is so overwhelmingly unanimous can be very revealing. These are the decisions in which members of the court felt so strongly about their differing positions that they were willing to break with the rarely broken custom of unanimity. These are the decisions in which the court's united front did not hold. The disagreements were too deeply felt. And in each of the resulting divisions, each member of the court had to choose which side to take in the publicly manifested disagreement.

A few things are clear from the voting figures reflected in GRAPH 1. Significantly, the Arizona Supreme Court has been strongly pro-prosecution on the issues that divided the justices. 70% of the time in which the justices had a disagreement strong enough to result in a divided decision, the court adopted the position more favorable to the prosecution. Less than half as frequently, 30% of the time, did the majority of the court take the position more favorable to the accused.

Additionally, there is an unmistakable ideological spectrum on the court. At one end of the spectrum is Chief Justice Ruth McGregor who took the pro-prosecution position in every one of the 10 divided cases. Her 100% pro-prosecution voting record contrasts most sharply with the 17% pro-prosecution record of Justice Andrew Hurwitz. He participated in only 6 of the 10 divided criminal decisions. But in those fewer decisions, he voted for the position more protective of the rights of the accused 5 times. She never did in the total 10 cases in which she participated.

What does this mean? Among other things it means that in the 10 criminal decisions in which the Arizona Supreme was divided over the past five years, McGregor never authored a majority or dissenting opinion siding with the accused on an issue that divided the court. Nor did she ever join such a pro-defendant majority or dissenting opinion written by a colleague. Hurwitz's voting record contrasts most sharply with hers. But, in fact, none of her colleagues has a voting record nearly as pro-prosecution as hers. That may or may not be a good thing. And that's not at all the point here. The only point is that her voting record is very strongly pro-prosecution and, indeed, it is the most strongly pro-prosecution on the court.

Moreover, it is not just the strongly pro-defendant voting record of Hurwitz that contrasts sharply with McGregor's record. Take, for example, the voting record of Justice Michael Ryan--the second most pro-prosecution after McGregor's. He took the position more favorable to the prosecution 67% of the time. (He participated in 9 of the total 10 decisions.) But that 67% record reflects the fact that he did side with the pro-defendant position in 3 of the divided decisions in which he participated. More than that, 2 of those 3 (Gant [2007] and Gomez [2006]) were 3-2 decisions. So he cast the deciding pro-defendant vote in those cases. In the third (McKaney v. Foreman [2004]), he disagreed with a pro-prosecution majority opinion and joined Hurwitz's pro-defendant dissent.

The contrasts between McGregor's voting record and those of her other colleagues--less pro-prosecution than Ryan--are even greater. More on that and on other voting and decisional matters will be discussed in forthcoming posts. For now, the point here is that the Arizona Supreme Court's record is strongly pro-prosecution, and that of its Chief Justice even more so.

New--and hopefully clearer--Graphs for "New York Court of Appeals: The Jones Factor in Criminal Cases (Part 2)"

The following two graphs are hopefully clearer than the one included in yesterday's post on the New York Court Watcher. (See New York Court of Appeals: The Jones Factor in Criminal Cases (Part 2) , August 19, 2008.) Clearer both visually and substantively. The original graph did not copy very well [not my fault], and it crammed in a lot of information [my fault]. Each of the two new graphs, derived from the original, have larger font and less info.

GRAPH 1

The first graph contrasts the voting in criminal cases by Judge Theodore Jones with that of Judge Albert Rosenblatt whom he replaced. The voting figures represent the percentage of divided criminal decisions in which each judge took the more pro-defendant position on the issue which divided the court. For Rosenblatt, the percentages are, respectively, for the five year and two year periods preceding Jones' appointment to the court. For Jones, the percentage is for the entire year and a half since his appointment, replacing Rosenblatt, in February 2007. As discussed in yesterday's post, and as depicted (hopefully quite clearly) in the graph, Jones' voting has been substantially more favorable to the accused--more than twice as favorable--than was Rosenblatt's. And since Jones' appointment, the court's decisional record has moved--again quite substantially--in the same direction. GRAPH 1, above, says it all.

GRAPH 2

The second graph depicts the voting record of each of Jones' colleagues since his appointment, together with his own and the decisional record of the court as a whole. Again, as discussed in yesterday's post and as depicted in the graph, three of the current judges have compiled strongly to very strongly pro-defendant voting records since Jones' appointment (i.e., Cuomo appointees Chief Judge Judith Kaye and Judge Carmen Ciparick, and Spitzer appointee Jones himself). One of the judges has a voting record that is moderately pro-defendant (i.e., Pataki appointee Judge Robert Smith). And three have strongly pro-prosecution voting records (i.e., Pataki appointees Judges Victoria Graffeo, Susan Read, and Eugene Pigott).

Viewed another way, a majority of the current Court of Appeals judges--four of the court's seven members--have pro-defendant voting records. Indeed, their records are markedly more pro-defendant (more than two times to more than three times pro-defendant) than the records of their three remaining colleagues. GRAPH 2, above, illustrates all of this rather starkly.

Well, hope this all helps to unjumble and to underscore some of what has been changing in the decisional record of the New York Court of Appeals in criminal cases.

New York Court of Appeals: The Jones Factor in Criminal Cases (Part 2)

As discussed previously on the New York Court Watcher (see New York Court of Appeals: The Jones Factor in Criminal Cases, August 8, 2008), the decisional record of the New York Court of Appeals in criminal cases has shifted significantly in a pro-defendant direction since the appointment of Judge Theodore Jones in February 2007. The above graph illustrates the shift.

The graph does so by depicting the frequency with which the court rendered pro-defendant decisions in criminal cases before and after Jones' appointment. More specifically, it depicts the before and after percentages of the nonunanimous criminal decisions in which the majority of the court took a position more favorable to the rights of the accused than did the dissenter(s) on whatever issue divided the judges. In short, the percentage of times the majority (the court) was more pro-defendant than the dissent. And the graph does so for the five year period (fall '01 through spring '06) prior to Jones' appointment and for the nearly one and one-half year period (February 2007 through spring '08) since his appointment. (The most recent two year period of the pre-Jones five years (fall '04 through spring '06) is also depicted to show that the pro-defendant shift actually did begin with Jones' appointment, and not sometime shortly beforehand.)

As shown on the graph, the court adopted a pro-defendant position in 32% of the divided criminal cases in the five-year pre-Jones period. It did so in 39% of those cases in the immediate two year pre-Jones period. Those figures contrast markedly with the 63% since Jones' appointment.

The graph also depicts the voting percentages for the individual judges. Most notably, perhaps, is the difference in the voting pattern between Jones and the judge he replaced, Judge Albert Rosenblatt. Whereas Rosenblatt's voting record was 37% and 42% pro-defendant, respectively, for the five-year and two-year pre-Jones periods, Jones' record to date is 88% pro-defendant. [That's a figure that has not been seen at the Court of Appeals since Judge Vito Titone--by far the most sympathetic to the rights of the accused of any member of the court during his tenure.]

Also particularly notable are the voting records of Jones' colleagues since his appointment. Cuomo-appointed Chief Judge Judith Kaye and Judge Carmen Ciparick have both been voting 69% pro-defendant. And Pataki-appointed Judge Robert Smith has also compiled a pro-defendant voting record--56%. Hence, four of the judges, a majority, have pro-defendant voting records since Jones' appointment. Three of those records--Jones', Kaye's, and Ciparick's--are significantly pro-defendant.

The remaining three members of the court--all Pataki appointees--Judges Victoria Graffeo, Susan Read, and Eugene Pigott, have strongly pro-prosecution voting records. They have each voted 25% pro-defendant since Jones' appointment.

There is much else to note in the decisional and voting records depicted on the graph. Suffice it to say that on the seven member New York Court of Appeals, three of the judges compiled strongly pro-defendant voting records in the year and a half since Judge Jones joined the court: Kaye, Ciparick, and Jones himself. Additionally, the voting record of Judge Smith reveals that, more often than not, he too has been siding with the defendant in the difficult, divisive cases. Indeed, he has been voting for the accused twice as frequently as the other three Pataki appointees, Graffeo, Read, and Pigott.

And the result, as we've been discussing, is that the court has been deciding cases in favor of the accused much more frequently than it was previously. Jones' 88% certainly seems to be a factor.

Well, Not Exactly NOT "Scalito" Either

In earlier posts on the New York Court Watcher, some emerging distinctions between the voting and opinions of Justice Samuel Alito, on the one hand, and of Justice Antonin Scalia, on the other, were pointed out. (See, Not Exactly "Scalito" (Part 2), June 22, 2008, and Not Exactly "Scalito", June 12, 2008.) But let's not get too carried away. The fact of the matter is that Alito, like Scalia, has an unmistakably--if not unqualifiedly--conservative record.

Let's look at Alito's dissents. Both those he wrote and those he joined. Dissents are always a good place to look to get an accurate sense of a judge or justice. Those public disagreements with one's own court, with a majority of one's colleagues. They're so revealing. [The value of studying dissents and the resulting divided decisions of a court has long been understood. See, e.g., the brief discussion on this blog in New York Court of Appeals: More Dissents in Kaye Court (Part 2: Who? How Many? What?), July 10, 2008, and a somewhat more detailed one in my New York's Chief Judge Kaye: Her Separate Opinions Bode Well for Renewed State Constitutionalism at the New York Court of Appeals, 67 Temple L. Rev 1163 (1994), available at http://ssrn.com/abstract=1154671.]

Over the nearly three full terms since he was appointed to the Supreme Court, Alito has been in dissent 26 times. In those 26 cases in which he publicly took a stand against the decision of his Court, he was together with Scalia more than with any other colleague--except for Justice Clarence Thomas with whom Alito was aligned just as frequently.

Of Alito's 26 dissenting positions, he was aligned with Scalia 13 times. He was with Thomas the same 50% rate. Alito was aligned with Chief Justice John Roberts in 11 dissents. But that was out of 25 cases, because Roberts did not participate in one of the 26. That one case was Hamdan--one of the Guantanamo detainee cases. Actually, Roberts had taken the same position while on the D.C. Circuit as Alito and the other dissenters later took at the Supreme Court. So that case can fairly be counted for the purpose here. Doing so, Alito was aligned with Roberts in 12 of 26 dissents. Just one less than the alignment with Scalia and Thomas.

As for the moderate conservative swing vote Justice Anthony Kennedy, Alito was aligned with him in 8 of Alito's 26 dissents.

With the liberals on the Court, Alito's alignment in dissent was much less. With Justice Ruth Bader Ginsburg, it was only 2 times. That was the lowest for Alito. With the others, however, it was hardly higher. Alito's was aligned in dissent with Justice John Paul Stevens 3 times; and with Justices David Souter and Stephen Breyer, 4 times each.

So, not unexpectedly, Alito was aligned in his dissents much more frequently with the Court's conservatives than with the liberals. And sooooooo, not exactly Scalia. But maybe more like Scalia (and Thomas and Roberts) than like the others.

New York Court of Appeals: The Jones Factor in Criminal Cases

The decisional record of New York’s highest court has shifted markedly in criminal cases since Judge Theodore Jones joined the seven member tribunal. That record has gone from distinctly pro-prosecution to distinctly pro-defendant. Since his appointment by former Governor Spitzer in February 2007, Jones has compiled a voting record that shows strong sympathy for arguments protecting the rights of the accused. And it was during that same period of a year and a half that the court itself became considerably more sympathetic to the accused.

Previous posts on the New York Court Watcher noted a sharp rise in dissents at the New York Court of Appeals, as well as a significant change in the court’s criminal record. An increase in dissents coincided with the appointments, by former Governor Pataki, of Judges Susan Read and Robert Smith a few years ago. An increasingly pro-defendant record in criminal cases is a more recent phenomenon. (See, New York Court of Appeals: More Dissents in Kaye Court [Part 3: Read and Smith; and Pigott Too], July 23, 2008, and New York Court of Appeals: Sharp Pro-Defendant Swing in Criminal Cases, July 22, 2008.)

Focusing now on Judge Jones’ appointment to the court, and specifically on the court’s decisional record before and after his appointment, is quite revealing. Indeed, it is striking. In the five full “terms” of court preceding Jones’ elevation to the Court of Appeals (the five years from fall 2001 through spring 2006), the court had amassed a record of siding with the accused in 32% of the contentious criminal cases. [I.e., in 22 of the 68 decisions where at least one member of the court publicly took issue with his colleagues in a dissenting opinion or in a separate concurring opinion expressing a substantive disagreement.] From this 32% pro-defendant record, the court swung to 63% once Jones was on the court. [I.e., in 10 out of the 16 divided criminal decisions from Jones’ appointment in February 2007 to the end of the court’s spring 2008 sessions.] So, from 32% to 63%. That is no minor blip.

But to double check, to be sure this change did not actually take place sometime prior to Jones’ appointment—e.g., in the latter part of that 32% pro-defendant five years—let’s look at the immediate pre-Jones period. Specifically, let’s look at the year immediately preceding the first criminal decision in which Jones participated. [That would be the 12 months from March 2006 through February 2007; the first criminal case in which Jones participated was decided in March 2007.] In that immediate pre-Jones year, the court’s record was 23% pro-defendant. [I.e., 5 out of 19 divided decisions.] Looking back another year, the court’s record for the two years immediately preceding Jones is not much different. For the 24 months from March 2005 through February 2007, the court’s record was 30% pro-defendant. [I.e., 10 out of 33 divided decisions.] So, 23% and 30%.

And then came Judge Jones, and the court’s pro-defendant record leapt to 63%--more than double. (A look at Jones' voting record, as well as that of each of his colleagues, for the year and a half since he joined the court will be the subject of a forthcoming post.)

Postscript: Inasmuch as Judge Jones will likely be a serious contender to replace Chief Judge Judith Kaye upon her mandatory retirement at the end of the year, the foregoing may have particular significance.

Arizona and New Mexico Supreme Courts: Contrast in the Southwest

The sun, blue skies, dry heat, desert, mountains, canyons, plateaus, pine forests, red rock, gold aspens, and the sunsets---and lots else. These are common characteristics of the two states at the heart of the Southwest. And my favorite places in America.*

[*That is, together with Upstate New York. As in the races at Saratoga, Lake Placid in the Adirondacks, the Union College campus and Morrette's Steak sandwiches in Schenectady, the Court of Appeals courtroom and the Jackson Building of Albany Law School in Albany, the Finger Lakes, Green Lake State Park outside Syracuse, Carmine Basilio's sausage and pepper subs at the State Fair, the People of Buffalo, etc. etc. etc. But that's not the focus here.]

Arizona and New Mexico are also the home of two of the nation's most fascinating and, in my view, best state supreme courts. And both are growing in importance as the two states grow in population and urbanization and industry and tourism. At the same time, the quality of the membership of the two courts and the opinions they author is very high. More about that in a later post.

The only point to be made here is something that struck me at the outset of researching the recent voting and decisional patterns of these two high courts. The New Mexico Supreme Court issues considerably more opinions, and its members are considerably more likely to dissent from their court's decisions. In the past three years, that court has decided 162 cases with opinion. By contrast, the Arizona Supreme Court has decided 107. Stated otherwise, the New Mexico court decided more than 150% more cases with opinion than the Arizona court.

Extending the time to the past five years, the disparity is 235 cases for New Mexico, 192 for Arizona. The absolute numerical disparity is somewhat smaller--i.e., 55 cases for the last three years, 43 for the last five. The five year difference between the two courts, then, is attributable to the large disparity in the most recent three years. Evidently, the New Mexico court's caseload--or at least the number of cases it decided with a published opinion--increased significantly over the last three years as compared to that of the Arizona court.

Additionally, there have been considerably more divided decisions emanating from the New Mexico Supreme Court, both in absolute numbers and proportionately, than from the Arizona court. In the last three years, 31 of the New Mexico court's 162 opinions evoked a dissent. At the Arizona Supreme Court the number was 10 out of 107. In other words, there were more than 3 times as many divided decisions at the New Mexico court. In terms of proportions, it was 19% of the New Mexico cases; 9% of the Arizona ones.

Again, going back five years, there were 41 cases decided with a dissent out of a total of 235 for the New Mexico court. There were 29 out of 192 for the Arizona court. Proportionately, that's 17% and 15%. The disparity for the full five year period does not seem that great. Actually it is much greater than it looks at first blush. This is why. Among Arizona's 29 divided decisions for the last five years are 11 authored by a single judge repeating the same position on the same single issue. (That was Chief Justice Charles Jones dissenting on the identical issue of judge-determined aggravating facts for sentencing.) If this string of 11 dissents is treated as the single continuing dissent it actually is, then the number of divided decisions for the Arizona court drops to 19. That is 10% of the total 192 decisions for the five years. Hence, the true comparison is more like 17% divided decisions over the last five years for the New Mexico Supreme Court and 10% for the Arizona court.

Interestingly, unlike the disparity in the total number of decisions for the two courts, the disparity in number and frequency of dissents was basically the same over the entire five years as it was for the last three.

In short, looking at the last three years, the New Mexico Supreme Court issued 162 decisions with full opinion; considerably more than the Arizona Supreme Court's 107. The disparity in decisions with dissent was also considerable: 31 compared to 10, or 19% versus 9%.

Future posts on the New York Court Watcher will discuss other aspects of the voting and decisional patterns at the two courts.

Arizona and New Mexico Supreme Courts: Contrast in the Southwest (forthcoming)

Commentary about decisionmaking at the high courts of Arizona and New Mexico coming.

See next post dated August 6, 2008.