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.