Tuesday, October 27, 2009

NY Court of Appeals: Granting Criminal Appeals--Up, Down, Now Up Again? (Part 1: Overview)

(For the last few weeks I've been occupied doing research on a few projects. Some of that will be reflected in the series of posts on New York Court Watcher that begins with this one.)

In recent years, New York's highest court drastically reduced the number of criminal cases it agreed to review on appeal. The Court of Appeals actually cut in half the rate at which it accepted criminal appeals.

There has been grumbling about how few criminal cases the court has been willing to hear. Criminal lawyers, court observers, and judges have been complaining that the Court of Appeals became very stingy in granting criminal leave applications. (These "leave applications," or "CLA's," are motions requesting the Court of Appeals to review the decision rendered by the appellate court below. Each CLA is decided by one Judge. Yes, one Judge. More on the implications of that in a subsequent post in this series.)

It turns out that the grumblers have been on to something. Take a look.
Criminal Appeals Granted
1988-92 vs. 2004-08
(click to enlarge)

Graph 1 depicts the average rate at which criminal appeals were granted over the last 5 calendar years and the corresponding rate for an earlier 5 year period. The last 5 calendar years, 2004 through 2008, happen to be the last 5 years of Chief Judge Judith Kaye's tenure on the court. So, for an earlier 5 year period, 1988 through 1992 seemed to be as felicitous as any other--they happen to be the last 5 years of the tenure of Chief Judge Wachtler, Kaye's predecessor. And look at the contrast.

The rate at which criminal appeals were granted in earlier years was twice as high as it has been more recently. The average rate of more than 4% of CLA's granted in the last 5 years of the Wachtler court dropped to just little more than 2% in the waning years of the Kaye court. Obviously, something happened. It's difficult to believe that such a drastic drop--a cut in half--could have happened inadvertently or unconsciously. (More about that in subsequent posts as well.)

To complete this brief overview, let's take a look at the status of CLA's under the new Chief Judge, Jonathan Lippman, who was elevated to the court's center seat earlier this year. In fact, let's look at that in the aftermath of a New York Law Journal article, this past April, discussing CLA's. In that article, Joel Stashenko reported what observers were saying about the low rate of criminal leave grants and that the new Chief had stated his intention to look into the situation. (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.)

Well! Take a look at how things have changed since Stashenko's reporting and whatever action the Chief Judge then took.
Criminal Appeals Granted
1988-92 vs. 2004-08 vs. 2009
(click to enlarge)

Graph 2 depicts the rate of criminal leave grants in the month's immediately following the New York Law Journal article, and it contrasts that with the prior rates which were depicted in Graph 1. What Graph 2 shows, in short, is that the rate has jumped dramatically.

For May through August, the rate was more than double what it had been previously. From a little more than 2.1% in the last years of the Kaye court, it jumped to almost 5%.

The same can be said about this rise in the rate as was previously said about the sharp drop that had occurred in past years. Obviously, something happened. It's difficult, very very difficult, to believe that such a sizeable jump--more than double--could have happened except deliberately and with some change in court policy.

So the rate of granting criminal appeals is up again at the Court of Appeals. And it is up substantially. At least for now, in any event.

In subsequent posts in this series, we'll take a look at the criminal leave rates over the years and whether they had dropped suddenly or over time; we'll look at why they dropped or, at least, what was happening at the time; and we'll look at the records of the current Judges in granting criminal appeals, how the Judges' records compare with each another, and how those records might have changed since whatever happened to cause the significant rise in criminal leave grants the past few months.

[Note: The data used in the New York Court Watcher posts are derived from numerous searches on Westlaw and Lexis-Nexis. I did not rely on the data provided in the Court of Appeals' official annual reports. My calculations and conclusions are drawn from data which I independently researched.]