Wednesday, January 28, 2009

New York Court of Appeals: The New Chief's Judicial Record (Part 2: His Criminal Opinions)

The last post on Chief Judge Nominee Jonathan Lippman discussed the relative paucity of his judicial record. In terms of time served as a judge engaged in judging and in terms of opinions authored, the record is pretty thin. This is even more true when considered in light of the kinds of sophisticated and consequential issues he will confront at the Court of Appeals--for, in fact, cases with such issues are the staple of the Court of Appeals docket. We are not talking about a lower level court that typically handles fairly routine legal matters. Those matters might well be important to the particular parties involved in each particular case, but they rarely entail far-reaching precedent-setting decisions. The day-to-day work of the Court of Appeals, on the other hand, does entail exactly that.

The Court of Appeals is the tribunal that resolves questions about the fundamental law of the state, settles conflicts in the law (case law and statutes), fills in the gaps when no law is directly on point, decides whether precedent should be preserved or overruled, and, in various other kinds of legal disputes, determines the most difficult and important questions about freedom, authority, and the rules governing the interactions of people living and working in New York.

And the simple point is that Lippman has very little background in dealing with such issues as a judge--or, in fact, as a litigator, government counsel, professor, high public official, or in any other capacity. Yes, the official word is out: he has a great deal of judicial experience. And his partisans and increasing number (for obvious reasons) of sycophants are parroting that he does, or that he has experience in dealing with such issues in some other capacity. But, come on. He just doesn't. Unless, of course, something major has been deleted from his official bio. Absent that possibility, virtually his entire career as a judge has been as an administrator. Not a judge engaged in judging. And his actual judging has been for only a brief time.

[Again, and this has almost become ad nauseam, it's not judicial experience itself that's important, but experience dealing with the kinds of tough and weighty legal-societal issues that confront the Court of Appeals. Judging is just one way to get that experience. It just so happens that Lippman's rather thin experience as a judge engaged in judging is the closest experience he has to that. For more on this, see related posts on the New York Court Watcher, e.g., New York Court of Appeals: The New Chief's Judicial Record (Part 1: An Overview of Not Too Much), Jan. 21, 2009; New York Court of Appeals: This List, Past Lists, the Guv...(Part 6: The Guv's Selection & My Own Ratings), Jan. 8, 2009; and New York Court of Appeals: Memo to the Governor & the Commission [esp. points 4 & 5], Nov. 17, 2008.]

Let's be clear. I hope that Lippman turns out to be a great Chief Judge. I'm rooting for him. Because I love the Court and I love New York. And no, I'm not predicting that he won't be. In fact, if what I've been told by some who know him is true, he may well turn out to be superb. The only point here is that he does not have much of a track record to indicate the kind of Court of Appeals Judge he will be (what kind of a judging judge, that is) or to indicate that he is well-prepared for the kind and level of judging work that he will have to do on the Court.

In any event, though there's not much of a track record, there is some. Lippman has been serving on the Appellate Division (the First Department, which is in Manhattan) since his appointment as Presiding Justice in May of 2007. Prior to that time, he served as a trial court judge on "Supreme Court" (in Westchester County) upon his election in 2005. A search of both Westlaw and Lexis-Nexis discloses his first judicial opinion as a trial judge in November of that year. In short, his record of judicial opinions is about 1 and 1/2 years as a trial judge. After that, he served a little more than 1 and 1/2 years on the Appellate Division.

As of today, Lippman's judicial opinion record on the Appellate Division is 12 opinions for the court (unanimous and majority combined) and 2 dissents. As a trial judge, his record is 20 opinions (some unpublished in the official reports, but available elsewhere), plus 2 dissents while serving on an Appellate Term panel. (For those not too familiar with New York's byzantine system of courts, the Appellate Term is a part of "Supreme Court" that hears appeals from the various lower level civil and criminal courts in New York City.)

That's the extent of the judicial opinion record. It's not much for analysis. Not much to get too good a handle on Lippman. But it's something. And there are some clues. (Hey, even with a somewhat slight judicial record, a judge just can't hide.)

So let's begin looking at what's there. First let's look at Lippman's criminal opinions. There are a total of 4. At the Appellate Division he wrote 3 opinions for the court--1 unanimous and 2 for a majority. At Appellate Term he authored 1 dissent. Here is a very brief encapsulation.

People v. Florestal (Appellate Division, June 2008). Lippman wrote the opinion, for a unanimous court, to reverse a murder conviction. According to Lippman, the trial judge had misinstructed the jury by telling them that depraved indifference murder was based on the circumstances surrounding the killing, rather than on the killer's reckless disregard of human life.

People v. Valdez (Appellate Division, June 2008). Lippman wrote the opinion for a 3 - 2 majority of the court. Although the court was unanimous to uphold the grand larceny conviction, the justices were divided on a fair trial issue that Lippman said needed to be addressed. Over the disagreement of 2 judges who wrote a concurring opinion, Lippman ruled that it was improper for the prosecutor to go to lengths to bolster the police witness's credibility, because that credibility had not even been challenged. Lippman warned that, in another case, such bolstering could cause an unfair trial and require that a conviction be reversed.

People v. Packer (Appellate Division, January 2008). Lippman wrote the opinion for another 3 - 2 majority to reverse a weapon's possession conviction--this time the 2 disagreeing judges dissented. Lippman ruled that the defendant's consent to a search was not voluntary and, therefore, that the weapon found in his backpack should have been suppressed by the trial judge.

People v. Anthony (Appellate Term, November 2006). Lippman wrote a dissent against a 2 - 1 majority that upheld a local housing code conviction. Lippman argued that the conviction should be reversed because the code was unconstitutional, even though the defendant hadn't originally challenged the code's validity.

That's it. Lippman's judicial opinion record in criminal cases. 4 opinions. Again, not much. But something. And yes, that something reveals some things. Not too great a deal. But not nothing either. Here are a few things.

Only a brief part of the brief time that Lippman spent as a judge engaged in judging was with criminal cases. 3 judicial opinions during the 1 and 1/2 years on the Appellate Division; none while on "Supreme Court," except for the 1 while serving on an Appellate Term panel.

In all of those 4 opinions, Lippman took the position more favorable to the accused. Whether writing for a unanimous court, for a majority, or for himself in dissent, Lippman either sided with the accused outright or, as in Valdez, took a position that was more protective of the rights of the accused than the concurring judges were willing to take.

The least that can be concluded, then, with a high degree of confidence, is that Lippman is not blindly or lopsidedly pro-prosecution. In not one of these opinions did he take the more pro-prosecution position. In the 3 divided decisions as well as in the unanimous one, Lippman sided with the rights of the accused. And he did so even when he had to part ways with a majority of his colleagues by dissenting.

This is not to say that Lippman is blindly or lopsidedly pro-accused. There are simply too few opinions to conclude with any confidence that his pro-accused record would extend over a much greater number of cases.

, if one were to bet, the smart money surely would be on Lippman proving to be--at the least--somewhat of a liberal. That seems much more likely than that his 4 criminal opinions are a complete anomaly and that he is actually a pro-prosecution, crime-control, law & order conservative. Whatever little there is in Lippman's judicial opinion record in criminal cases certainly does not provide any suggestion of that likelihood.

One last point. And this is just fact. Of the 4 criminal opinions Lippman authored, only one was unanimous. As the Presiding Justice, 2 of the 3 opinions he authored at the Appellate Division split his court. Both Valdez and Packer were 3 - 2 decisions. His opinions garnered a bare majority. His colleagues were willing to--and in fact did--disagree publicly with their Presiding Justice by authoring separate opinions objecting to his approach to the law. And at the Appellate Term, in Anthony, he was in dissent because he could not garner a single colleague's vote for his position.

This does not suggest that Lippman got it wrong in those opinions. Not at all. What it does suggest--what the bare facts tell us--is that Lippman, both as an Appellate Division Presiding Justice and as a member of an Appellate Term panel, was unable to persuade disagreeing colleagues to his side in 3 out of 4 cases. In the 2 Appellate Division cases he secured a bare majority. In the Appellate Term case he was alone in dissent.

Whatever divisions, independence, and intransigence among his colleagues Lippman found at the Appellate Division and the Appellate Term, he can expect in much greater and hardier abundance at the Court of Appeals. Those top court judges can be awfully opinionated, contrarian, and unruly. (I'm pretty sure that Lippman's predecessor and good friend, retired Chief Judge Judith Kaye, must have filled him in. The increased rate of disagreement at the Court of Appeals is discussed in New York Court of Appeals: More Dissents in Kaye Court (Part 3: Read and Smith; and Pigott Too), July 23, 2008, and in preceding posts cited therein.)

If it was difficult to keep the troops in line at the AD and the AT, good luck at the Court of Appeals!

And all people of good will in New York do wish Chief Judge Nominee Lippman lots of good luck. Lots of success in helping to move the Court forward. Lippman needs it, and the Court needs to.

In the next post in this series we'll look at Lippman's judicial opinion record in civil cases. Some pretty interesting indications.