Total CLA's Granted by COA Judges
1988-92 vs. 2004-08 vs. May-Aug 2009
(click to enlarge)
Graph 1 recaps the previous posts in this series. Grants of criminal appeals to New York's highest Court dropped drastically in recent years. They then increased suddenly--and significantly--in recent months.
The previous posts showed that less than half as many criminal leave applications (CLA's) to appeal to the Court of Appeals were granted in the last several years as were granted in the past. This was true for applications granted by Justices of the state's intermediate court, the Appellate Division, as well as by Judges of the Court of Appeals itself.
As for the Court of Appeals Judges, the total number of CLA's granted by them fell from an annual average of 98 (during the last 5 years of Chief Judge Wachtler's tenure) to 46 (during the most recent 5 years--the last 5 years of Chief Judge Kaye's tenure).
(It may be noted that the average for the last 5 years is 1 less than I stated in previous posts. Because the thousands of CLA's are not coded in a consistent way in either Westlaw or Lexis-Nexis, a simple search and automatic calculation is impossible. My latest manual survey resulted in a count of 4 fewer CLA's granted over that 5 year period. That lowered the average from 47 t0 46. That difference makes no difference in what has been discussed.)
Additionally, it was noted in the previous posts that the Court of Appeals Judges began to grant CLA's at a sharply increased rate in the last few months. This increase followed a story in the New York Law Journal on April 22 by Joel Stashenko, and the concern expressed in that story by the newly appointed Chief Judge, Jonathan Lippman, about the very low rate at which CLA's were being granted by his colleagues. This latest change will be the focus of a later post or two.
(For these previous discussions in New York Court Watcher, see (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; (Part 4: More on Absolute Numbers), Nov. 6, 2009.)
For now, let's focus on that low rate of CLA grants in recent years. In particular, let's identify when the rate dropped to half of what it had been. First, let's again take a look at what we're discussing.
GRAPH 2
Total CLA's Granted by COA Judges
Averages, 1988-92 vs. 2004-08
(click to enlarge)
The average number of criminal appeals granted collectively by Court of Appeals Judges went from nearly 1oo a year to less than 50. Again, by the last 5 years, from 2004 to 2008, the number had dropped from around 98 a year to around 46.
But was that low number peculiar to the last 5 years? What about the 5-year period immediately prior to that? Let's take a look.
GRAPH 3
Total CLA's Granted by COA Judges
1988-92 vs. 1999-03 vs. 2004-08
(click to enlarge)
As depicted in Graph 3, the rate at which Court of Appeals Judges were granting CLA's was just as low in the 5-year period, 1999 t0 2003, as it was in the most recent 5 years. The drastically reduced number of CLA grants had, thus, been an ongoing phenomenon for at least 10 years.
But when did this begin? And why? What was happening? Something must have caused a drop of this magnitude. So what was it?
Let's deal with the first question. Let's look at the number of CLA's granted for each year beginning with the last 5 years of the Wachtler era to the last full calendar year--i.e., the last year of the Kaye era.
GRAPH 4
Total CLA's Granted by COA Judges
Annual Number, 1988 to 2008
(click to enlarge)
As shown in Graph 4, the number of CLA's granted by Court of Appeals Judges dropped precipitously after 1995. Other than an apparent blip in 1997, the number of CLA's granted each year from 1996 to last year was about half the number granted in the previous years.
Let's add a little color to the graph to highlight the change and help visualize the years in which that change was taking place.
GRAPH 5
Total CLA's Granted by COA Judges
Annual Number, 1988 to 2008
(click to enlarge)
There's nothing particularly clever about my choice of colors. But blue (as in blue, Democratic voting states) marks the years in which CLA's were granted at a more generous (i.e., liberal) rate. Red (as in red, Republican voting states) marks the years in which CLA's were granted at a more restrained (i.e., conservative) rate.
Besides the political play on colors, the virtue is in underscoring the contrast between the past and recent rates of CLA grants. Additionally, it's the clarity with which the years in which the change occured can be pinpointed. The change occurred after 1995. Within a few years--no later than 1999--the Court had apparently settled on the new low rate of CLA grants.
So, between 1995 and 1999 the Court had apparently settled on a new lower rate of granting CLA's. Apparently, in the years immediately following 1995, the Court decided to take half as many criminal appeals as it had previously. What is not just apparent--but clear--is that the number of CLA's granted was cut in half after 1995.
Now, to start exploring the second part of the questions asked above--what was happening at that time? We'll take a closer look at this in the next post. But let's close here by taking a peak.
The following is a graph from a few years ago tracing decisional and voting patterns at the Court of Appeals in criminal cases. It combines the findings of several different studies of mine. For our immediate purpose, let's focus on the rate at which the Court was deciding cases in favor of the accused. More specifically, let's look at how that rate changed in the years covered.
GRAPH 6
Pro-Accused Decision & Voting Records
Divided Criminal Cases
1994+95 - 2001+01
(click to enlarge)
Over the course of the several years reflected in Graph 6, the decisional record of the Court became more conservative. The percentage of cases the Court decided in favor of the accused dropped substantially.
As depicted in the graph (at the data and bars labelled "COURT"), the study covering the 2-year period, 1994 and 1995, found that the Court of Appeals had sided with the defendant in 45% of its non-unanimous criminal cases. In the next 2-year period reflected, fall 1996 thru spring 1998, that pro-defendant rate had dropped to 27%. By the last 2-year period reflected in the graph, 2000 and 2001, that rate had fallen to 21%.
So, immediately following the 2-year period, 1994 and 1995, the Court's record had become unmistakenly more conservative, more pro-prosecution, less favorable to the accused.
Let's recall some contemporaneous political background. In 1995, Republican George Pataki succeeded Democrat Mario Cuomo as Governor. By the next year--as we've been discussing-- the Court of Appeals began granting far fewer CLA's, and began deciding far fewer criminal cases in favor of the accused. Accepting fewer criminal appeals and ruling more conservatively. Hmmmmm!
Pure coincidence? Pure happenstance? We'll take a closer look in the next post in this series.
