Thursday, November 5, 2009

NY Court of Appeals: Granting Criminal Appeals--Up, Down, Now Up Again? (Part 3: And Not Just Rates, But Absolute Numbers)

It's not just the rate at which criminal appeals have been granted, it's the actual numbers as well. As discussed in parts 1 and 2 of this series, the rate at which applications to appeal to New York's high court were granted dropped sharply in recent years. It dropped to one half of what it had been in years past. (See NY Court of Appeals: Granting Criminal Appeals--Up, Down, Now Up Again? (Part 1: Overview)Oct. 27, 2009; (Part 2: Not Just Averages, But Year By Year) Oct. 29, 2009.)

In those previous posts on New York Court Watcher, we saw that the rate of granting criminal leave applications was 2.1% for the past 5 years, 2004 through 2008--the last 5 years of Chief Judge Kaye's tenure. That compared to a rate of 4.1% in the earlier 5 year period we looked at--the last 5 years of Chief Judge Wachtler's tenure--1988 through 1992. We also saw that there seems to be a sudden dramatic increase in the rate of granting criminal appeals in the last few months--i.e., early in the tenure of Chief Judge Lippman.

Here again is how these 3 phenomena look when visually compared.
Criminal Appeals Granted--Rates
1988-92 vs. 2004-08 vs. May-Aug 2009

(click to enlarge)

4.1% down to 2.1% and then up to 4.8%. A roller coaster. And the drop to 2.1% was steep enough, and the apparent very recent rise to 4.8% was abrupt and substantial enough, that they each very likely reflect some conscious, deliberate change at the Court.

Moreover, regarding the earlier 4.1% and later 2.1% rates, the relative consistency with which they were each achieved over their respective 5 year periods would seem to rebut any suggestion of mere happenstance. Here again is how the rates for those two 5 year periods look--year by year, as well as respective annual averages--when visually juxtaposed.

Criminal Appeals Granted--Rates
1988-92 vs. 2004-08 (year by year)

(click to enlarge)

In the earlier 5 year period, the rate of granting criminal appeals hovered around the 4.1% average each year. Likewise, in the recent 5 years, the rate never deviated too far from the average of 2.1%.

But what about actual numbers. Maybe the rates changed but the actual number of criminal appeals granted remained the same, or didn't change nearly as much.

Well, that's possible, of course. But it just isn't the case. The absolute number of criminal appeals granted--as opposed to percentage or proportion of total applications--changed in equally dramatic fashion. In fact, the change was even greater.

The actual number was reduced to less than half of what it was. Stated otherwise, the number of criminal leave grants in the past was cut by more than half in recent years. Somehow, at some time, for some reason [and more about that in a later post], the number of criminal appeals granted dropped sharply--very sharply--between the last few years of the Wachtler and Kaye eras at the Court of Appeals.

Let's take a look.
Criminal Appeals Granted--Numbers
1988-92 vs. 2004-08 (totals)

(click to enlarge)

656 applications to appeal to the Court of Appeals in criminal cases were granted in the 5 years from 1988 through 1992. Fast forward to the 5 years from 2004 through 2008 and the number dropped through the floor to 272. That's less than one half. Less than one half the number of criminal cases allowed a review before the state's highest court, the state's court of last resort.

We'll need to take a closer at these total numbers. Criminal appeals to the Court of Appeals can be granted by a Judge of the Court of Appeals itself, or by a Justice of the Appellate Division, the state's intermediate court, after that court has ruled on a case. So the total figures include those applications granted by Court of Appeals Judges and by Appellate Division Justices. I.e., applications for the Court of Appeals to review the case, but applications granted by members of either court.

In the next post, we'll break down the total numbers into those separate components, and we'll then focus on the number of grants by the Court of Appeals Judges themselves.