Wednesday, December 2, 2009

NY Court of Appeals: Granting Criminal Appeals--Up, Down, Now Up Again? (Part 6: The 1997 "Blip" & What it Says About the Drop)

In the last post, we saw a significant blip in CLA grants for 1997. This occured even as the rate of CLA grants had taken a dive in the preceding year and then proceeded at the sharply reduced rate after 1997. The data showed that, between 1995 and 1998, the Court of Appeals cut the rate at which it would henceforth be granting CLA's. The number of CLA grants by Court of Appeals Judges dropped immediately after 1995, and the sharply reduced rate seemed clearly settled by 1999--but only after an erratic and substantial uptick in 1997.

Here's how the data looked in a graph.
Total CLA's Granted
by COA Judges
Annual Number, 1988 to 2008
(Unadjusted 1997)
(click to enlarge)

1997 simply did not fit within the obvious pattern. CLA grants were higher for 1995 and previous years; much lower for 1996 and future years. Except for 1997.

If something changed in 1996--and, as depicted in Graph 1, the data certainly shows it did--then something out of the ordinary happened in 1997. Why the sudden, single-year, dramatic rise in CLA grants?

Well, seek and you shall find! Not only will you find, but it will make even clearer and more evident what seemed pretty clear and evident to begin with.

What did happen in 1997? Fast forward to the Court's decision the following year in People v. Allen (92 NY2d 378 [1998]). As the Court stated early in its unanimous opinion: "In these 54 criminal cases, combined for the purposes of this appeal," the defendants were all arrested in "a series of 'reverse sting' operations conducted by the Rochester City Police Department during April 1995." Hmmm, 54 cases, all involving the same kind of undercover operation, by the same police force, and all in the same month in 1995. [For anyone ineterested in the facts of the case: each defendant had been sold oregano, thinking it was marihuana. They were each arrested and charged with criminal solicitation. The Court of Appeals dismissed the charges against all 54 defendants.)

The Court of Appeals decided the case--well, the 54 cases combined into 1--in 1998. That means that somehow, at some time, 54 defendants were granted leave to appeal to the Court of Appeals. It was really 1 appeal, involving the same facts and same issue--54 times in 1 consolidated appeal under the title People v. Allen.

And sure enough, in 1997, the year before the decision in Allen, the 54 defendants applied to the Court of Appeals and each of their CLA's were granted for the 1 consolidated appeal. 54 CLA's granted to resolve the same issue in 1 appeal and, thus, deciding all 54 cases at once.

In fact, in the Court of Appeals 1998 Annual Report (the earliest one available on its website), a special explanation is added for the CLA's granted in 1997. An asterisk footnote states that the tabulation of CLA's for 1997 "[i]ncludes grants of 54 separate applications handled as a single appeal below and handled as a single appeal in this Court."

A more accurate number for CLA's granted in 1997 would, then, count those 54 grants as 1. In short, for the purpose of examining, counting, and comparing the number of criminal cases the Court agreed to decide on appeal each year, counting the 54 CLA's as 54 separate cases--even when the Court treats them as a single appeal-- distorts what the figures represent.

So, if the 54 cases consolidated into 1 appeal by the Court of Appeals are treated as the single appeal that they really are, then the CLA figure for 1997 should be adjusted to reflect that.

(Treating the 54 CLA grants as a single appeal--as the Court itself did--reduces the 1997 grant figure by 53. For those arithmatically challenged, that's subtracting the 54 cases initially counted, and then adding 1 for which they more accurately count. The inital total from my research was 112. The adjusted total is 59.)

Now let's see how the data looks with the 1997 figure adjusted.
Total CLA's Granted
by COA Judges
Annual Number, 1988 to 2008
(Adjusted 1997)
(click to enlarge)

In Graph 2, the initial figure for 1997 has been replaced with the adjusted figure. Again, it reflects the Court's treatment of the 54 cases in People v. Allen as a single appeal. With the number of CLA grants for 1997 thus adjusted, the pattern is even clearer, and the time when the change occured is even more certain.

1995 was the last year the Court's Judges granted CLA's at a higher rate. In 1996, the Judges cut the number of grants sharply, and that sharply reduced rate persisted through last year.

So now that the little 1997 mystery has been solved, we'll return to our examination of the Court's drastic cut in CLA grants. It's now even more evident that the reduction occurred immediately after 1995. In the last post, we concluded with a brief look at the Court's decisional record in criminal cases--it become noticeably more pro-prosecution just about the same time that the rate of CLA grants was being cut. Right after 1995.

We'll take a closer look at 1995, what was happening, and the aftermath, in the next post.