Saturday, December 5, 2009

NY Court of Appeals: Granting Criminal Appeals--Up, Down, Now Up Again? (Part 7: Pataki's Attack and The Court's Retreat)

The drastic drop in granting criminal appeals came immediately after 1995. That fact emerged from the data reported in the last 2 posts on New York Court Watcher. Indeed, it became pellucidly clear [Don't you just love the tempo of that redundancy?] when the curious 1997 blip was investigated and adjusted.

(See the discussion in the last post on New York Court Watcher about the 54 separate CLA grants in 1997 that arose out of a single appeal in a lower court and were treated as a single appeal at the Court of Appeals: NY Court of Appeals: Granting Criminal Appeals--Up, Down, Now Up Again? (Part 6: The 1997 "Blip" & What it Says About the Drop), Dec. 2, 2009.)

As was shown in the last blog, with the 1997 blip adjusted, here's how the annual CLA grants by the Court of Appeals' Judges look, from 1988 through 2008.
Total CLA's Granted
by COA Judges
Annual Number, 1988 to 2008
(Adjusted 1997)
(click to enlarge)

Yep, pellucidly clear.

(Actually, I don't normally use that phrase. But there was a Judge at the Court when I was clerking who liked to use it. And I recently noticed it used in a Supreme Court opinion. [Justice Stevens' concurring opinion in
Baze v. Rees (1988).] So I'm apparently not alone in finding some mellifluous appeal in that redundancy.)

Immediately following 1995, the floor fell from under CLA grants at the Court of Appeals. As the graph shows, this was no accident or fluke. The sharply reduced rate of CLA grants continued year after year, right to the end of Chief Judge Kaye's tenure--i.e., through 2008, the last full calendar year. Some decision must have been made. Some change in policy. And right after 1995.

So what's with 1995? Anything happening?

Well, for one thing, let's recall a graph from an earlier post in this series. It depicts the patterns in the Court's decisions and voting in criminal appeals before and after 1995. Actually, it reflects the findings from past studies of mine on the Court's decisions and voting, beginning with the 2-year period, 1994 and 1995, and several 2- year periods thereafter.

Let's look.
Pro-Accused Decision & Voting Records

Divided Criminal Cases
1994+95 - 2001+01

(click to enlarge)

If we focus on the Court itself, it's hard to miss. The Court's decisional record turned increasingly conservative over the periods covered--i.e., less pro-defendant, more pro-prosecution. Siding with the accused less frequently, approving convictions more frequently. And that happened immediately after 1995.

If that's not sufficiently clear, let's zero in on the voting of a couple of the individual Judges.

Now-retired Chief Judge Judith Kaye and still-active Judge Carmen Ciparick could fairly be labeled liberal. At least as that term is used in common parlance. In criminal cases that would mean more sympathetic to the claims of defendants, more rigorous in the enforcement of the rights of the accused, less willing to overlook misconduct by the police or prosecutors, less tolerant of constitutional violations in investigation, interrogation, and the conduct of trials.

In that sense, Kaye's and Ciparick's voting over the years placed them on the more liberal, or less conservative, side of the Court's ideological spectrum. But let's look at their voting post-1995.
Chief Judge Kaye's Voting Record

Divided Criminal Cases
(click to enlarge)

Kaye's voting reflects the Court's decisional record. It became more conservative. This graph--another I did earlier that incorporates past studies of mine--divides the then most recent 15 years of Kaye's career on the Court into 5-year periods. The last such period, all of which is post-1995, shows an unmistakable decline in her liberal voting.

Focusing on criminal cases, her voting--like the Court's decisions--became less pro-defendant. More conservative.

Let's now look at Ciparick's record around the same time.
Judge Ciparick's Voting Record

Divided Criminal Cases
(click to enlarge)

Like Kaye's record, Ciparick's reflects the Court's conservative swing at the time. This graph looks at the entire 8 years that Ciparick had been on the Court at the time. It splits those years in half. For the period that's entirely post-1995, Ciparick's voting was unmistakeably less liberal.

In criminal cases, her voting was significantly less pro-defendant. Like Kaye's record, and like that of the Court as a whole.

Let's look again at the Court's record. This time let's isolate it from the individual Judges' voting, and let's look at it over a more extended period of time.
Pro-Accused Decisional Record

Divided Criminal Cases
Early Kaye Court - 2004-06

(click to enlarge)

Again, pellucidly clear. The Court's record in criminal cases became decidedly more conservative after 1995. Less pro-accused, more pro-prosecution. And that conservative turn persisted for many years thereafter. A series of 4 consecutive 2-year studies shows that.

The Court's decisional record didn't return to it's previous form--or fairly near to that--at least until 2003.

So what was this all about. Well, it just so happens that the pro-prosecution turn in the Court's decisional record--as reflected also in the voting of Kaye and Ciparick--immediately followed a harsh campaign of public attacks upon the Court. You guessed: for being too liberal. You know: for "coddling criminals."

The newly-elected Republican Governor George Pataki began it all with a press conference in November 1995. He was unrelenting for the next year. As a prelude to introducing tough-on-crime legislation, Pataki blasted the Court for creating "irrational, mindless procedural safeguards," for favoring "criminal rights" over the "rights of the people," for being "very different from the rest of the country" that "have a common-sense system of justice," and for lots of the same.

Pataki's Attorney General echoed the charges. He accused the Court of being "intent on coddling dangerous criminals" with its "arcane technicalities and liberal legal interpretations."New York City's police commissioner joined in, referring to the "screwball Court of Appeals" that's "living off in Disneyland somewhere."

The tabloids, not surprisingly, couldn't resist. The Daily News castigated the "Friend to the Felon"on page 1, and ridiculed the Court as "that ideological dog and pony show" in its editorial. The Post declared on its front page that the "State's Top Court Sides with Crooks," and it denounced the Court for "Rulings Wacky Enough to Make Your Head Spin."

So went the barrage against the Court from Pataki's 1995 press conference to well into 1996.

(The merits of these attacks on the Court are beyond the focus of this post. For an examination of the criticisms, their merits, and how they affected the Court, see e.g. my
"Court Bashing and Reality: A Comparative Examination of Criminal Dispositions at the New York Court of Appeals and Neighboring High Courts," [w/ Judi A. DeMarco] Judges' Journal, Vol. 36, No. 1, Winter 1997 [also available at]; STREAMS OF TENDENCY ON THE NEW YORK COURT, ch. 3 [Hein 2003].)

AND, the time of that assault upon the Court--from Pataki, his partisans, and the media--is the time that things changed at the Court. The Court's decisional record became significantly more pro-prosecution. The voting records of Kaye and Ciparick showed the very same. And the Court began to grant appeals in criminal cases at a much lower rate.

Yes, that's when CLA grants were cut sharply. Was the Court avoiding the kinds of cases that brought it such condemnation? Deciding those cases more conservatively and reducing their number. To avoid any more trouble with the politicians, the press, and the public?

Who can say why? At least with certainty? The numbers, the decisions, the votes, the grants can't tell us that. At least not for sure. But they can--and they do--tell us that the Court DID change its treatment of criminal cases immediately following the criticisms heaped upon it in 1995 and 1996. Decisions became more conservative. So did voting patterns. And CLA grants dropped precipitously.

In the next post in this series, we'll take a closer look at the most recent change upwards in those CLA grants at the Court.