Friday, November 6, 2009

NY Court of Appeals: Granting Criminal Appeals--Up, Down, Now Up Again? (Part 4: More on Absolute Numbers)

In the first 3 posts of this series on New York Court Watcher, we looked at the sharply reduced rates and numbers at which criminal appeals to the Court of Appeals have been granted in recent year. We did so by comparing the rates and numbers from the most recent 5 years, 2004 through 2008, with those for an earlier period of the same length 1988 through 1992. We saw that the rates and numbers in the more recent period (which happened to be the last years of Chief Judge Kaye's tenure) were half of what they were in the past (specifically, the last years of Chief Judge Wachtler's tenure). (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;(Part 3: And Not Just Rates, But Absolute Numbers), Nov. 5, 2009.)

The last post concluded with a look at the total number of criminal appeals granted in each of those 5 year periods. Here is that graph again.
Criminal Appeals Granted--Numbers
1988-92 vs. 2004-08 (totals)
(click to enlarge)

From 656 grants over the earlier 5 years to 272 in the more recent period.

Let's now take a closer look at those total numbers. Remember, as we noted in the last post, criminal appeals to the Court of Appeals can be granted by a Judge of the Court of Appeals or by a Justice of the Appellate Division, the state's intermediate court, after that court has ruled on a case. So total grant figures include CLA's [criminal leave applications] which were granted by Court of Appeals Judges and those by Appellate Division Justices. I.e., the applications are for the Court of Appeals to review a case, but applications can be granted by members of either court.

Let's break down the numbers according to which court's members granted the application.

Criminal Appeals Granted--Numbers
1988-92 vs. 2004-08 (by COA & AD)

(click to enlarge)

Similar to what we've seen regarding the decline in the rates and total numbers of CLA grants, the number of CLA grants by the Court of Appeals Judges themselves in recent years was less than half what it was in the past. 234 grants in the last 5 years as opposed to 488 in the earlier 5 year period.

Curiously--as also depicted in Graph 2--the Appellate Division Justices have been granting criminal appeals to the Court of Appeals in even more drastically reduced numbers. They granted a total of168 applications in the earlier 5 year period as opposed to a mere 38 in the recent 5 years. They apparently got the word or saw the trend and took it very very seriously.

But let's continue our focus on the Court of Appeals Judges. Let's look again at the numbers of criminal cases accepted for review by the Judges themselves. This time let's look at those numbers a bit differently. How do those numbers translate into the average number of CLA's granted--i.e., criminal appeals permitted--by the Court's Judges each year?

Take a look.
CLA's Granted
by COA Judges Only
Averages, 1988-92 vs. 2004-08
(click to enlarge)

Those yearly averages seem to make the case more bluntly. The Court's Judges formerly granted around 100 criminal appeals each year. In recent years, they have been granting only around 47. Understand: that's 7 Judges granting a total number of 47 criminal appeals a year. That's starting to approach the embarrassing low numbers of appeals granted by the U.S. Supreme Court.

But let's conclude here on a high note. A bit of optimism that we'll explore in greater detail in a subsequent post.

Let's compare these numbers with the numbers that have been emerging the last several months. As we've noted in previous posts, change seems to be in the wind at the Court of Appeals. In the months following Joel Stashenko's April 22 article in the New York Law Journal [disclosure: for which I was consulted], CLA grants are up. Markedly up.

So let's juxtapose the average numbers in the last graph with the most recent numbers. That will be comparing the annual averages--numbers for a full 12 months--with the number for a mere 4 months, May through August of this year. (These are the months for which the most recent data has thus far been available.)

Let's look.
CLA's Granted
by COA Judges Only
1988-92 vs. 2004-08 vs. May-Aug 2009
(click to enlarge)

As depicted in Graph 6, the Judges of the Court of Appeals granted almost as many CLA's in just 4 months this year as they have been granting for an entire year in the recent past. That's more than 10 per month versus less than 4. Or an extrapolated 123 per year as opposed to 47.

That's an enormous jump. Indeed, at the current rate, the number of grants will even exceed the yearly average of the past. Something must have happened at the Court. And at least for now, the lawyers, court watchers and judges who were grumbling ought to be quite pleased with this apparent development.

In upcoming posts, we'll explore when and possibly why the CLA granting rates had dropped so dramatically over the years. We'll also take a look at the CLA granting rates of the individual Judges, both in the past and more recently.