Thursday, October 29, 2009

NY Court of Appeals: Granting Criminal Appeals--Up, Down, Now Up Again? (Part 2: Not Just Averages, But Year By Year)

Averages can be misleading. They do not necessarily reflect what is typical. One or more aberrational figures in a series--unusually high or unusually low--can distort the resulting average. Indeed, an average can be entirely unlike any figure in a series. 50 is the average of a series of six figures containing three 100's and three 0's and, yet, is much different than any figure in that series.

So...let's take a closer look at the averages that were the focus of the last post on New York Court Watcher. In that post, part 1 of this series, we looked at the average rates at which criminal appeals to New York's highest court were granted in two 5-year periods, 1988-1992 and 2004-2008.
Criminal Appeals Granted
1988-92 vs. 2004-08
(click to enlarge)

As reproduced here from that first post, Graph 1 depicts what we discussed then. There certainly seemed to be a precipitous decline in the number of criminal appeals granted from that earlier 5-year period to the more recent one. (Recall that those 5-year periods were chosen because the most recent one--the 5 most recent complete calendar years--also happened to be the last 5 years of Chief Judge Judith Kaye's tenure. For some sense of symmetry, the earlier period chosen was the last 5 years of the tenure of Kaye's predecessor, Chief Judge Sol Wachtler.)

But, one might say, that apparent decline was based on averages. As we just discussed, averages can be misleading, atypical, unrepresentative, etc. It might be that the only thing actually differentiating the two five year periods is a couple of aberrational years--unusually high in the earlier period and unusually low in the recent one.

Well yes, that might be. But it isn't. In this case, the averages turn out to be quite representative. Let's take a look.
Criminal Appeals Granted
2004-08 (year by year)
(click to enlarge)

As depicted in Graph 2, the average rate at which criminal appeals were granted over the recent 5-year period, 2004-2008, is actually very reflective of the rates for the individual years. The rate for each year remained about the same, never straying too far from the approximately 2% that turned out to be the average.

So ~2% (or 2.1% to state it exactly in terms of the average) is the rate at which criminal appeals to the Court of Appeals were granted in each of the last 5 calendar years.

Now let's take a look at the earlier 5-year period.
Criminal Appeals Granted
1988-92 (year by year)
(click to enlarge)

As depicted in Graph 3, the average rate for the earlier 5-year period--like the average for the recent period--turns out to be very representative. The rate for each of the 5 years is similar to the average. During the last 5 years of the Wachtler court, 1988-1992, criminal appeals were being granted at a rate of approximately 4% (or 4.1% to again state it exactly in terms of the average).

Yes, there was apparently some variation in the rates during that earlier 5-year period. But there was no wild fluctuation, no dramatic rise or drastic plunge. Certainly none that was sustained. Certainly none that was similar to the drop between this earlier 5-year period and the recent one. None that was even close.

Let's take another look at that drop. This time, let's look at it by contrasting the 5 individual years of the earlier period with the individual years of the recent one.
Criminal Appeals Granted
1988-92 vs. 2004-08 (year by year)
(click to enlarge)

Graph 4 makes the drop quite vivid. But, of course, it was a drop that resulted in criminal appeals being granted at half the rate they formerly were. Now that's a drop. Not a mere happenstance.

No wonder lawyers, court observers and even judges were complaining.

In the next post we'll take a look at the actual numbers. Thus far we've looked at rates. Let's also examine the actual numbers of criminal appeals granted. After that, we'll look at the Judges themselves, their records--i.e., the differences among the Judges in how often they have been granting criminal appeals. Following that, we'll look at when the rates dropped and what was happening at the time. We'll also look at how the rates have changed again, in the last few months, under Chief Judge Jonathan Lippman. And finally, we'll look to see if and how much the individual Judges' records on granting criminal appeals might have changed during this time.

[Note again: 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.]