CLA's Granted by Each COA Judge
Ann. Avg. & Each Year, 2004-08
(click to enlarge)
Graph 1 tells the whole story. Well, the story to be told in this post. That is, the number of CLA's granted by each Court of Appeals Judge in each of the previous 5 years, and each Judge's annual average over that period.
(A less cluttered and more digestible graph [#8] at the end of this post is a veritable nutshell of the highlights. Take a look now if you want to cut to the chase--you know, like going right to the bottom line, or the black-letter law of a case.)
A quick glance at Graph 1 shows the wide range of CLA granting among the Judges. There were a total of 9 Judges who were members of the 7-member Court at some time during the 5 years. (Some were on the Court the entire 5-year period. Others retired during that time, and still others were then appointed to replace them.)
Another quick glance shows that, among the total of 9 Judges, Eugene Pigott granted CLA's at the highest rate. Susan Read at the lowest.
But there's an awful lot of data crowded into that graph. Let's unpack it into more digestible pieces. But first, briefly recall some of what we've seen in earlier posts in this series in the New York Court Watcher. Just to give some quick perspective to what we're discussing here.
GRAPH 2
Total CLA's Granted by COA Judges
Averages, 1988-92 vs. 2004-08
(click to enlarge)
We saw that criminal appeals were being granted by Court of Appeals Judges in recent years at a much lower rate than in the past. Specifically, as depicted in Graph 2, the Judges granted less than half as many CLA's in the most recent 5-year period as they had in an earlier one.
(The most recent, completed 5-year period [2004-2008] happened to be the last 5 years of Chief Judge Judith Kaye's tenure. So the earlier 5-year period chosen for comparison [1988-1992] was the last 5 years of her predecessor's tenure, i.e., Chief Judge Sol Wachtler's.)
We also saw that this sharp contrast was not a mere accident of averages or some atypical happenstance. Rather, there was a clear pattern--or break in patterns--for granting CLA's in recent years versus in the past. This is how it looked.
GRAPH 3
Total CLA's Granted by COA Judges
Annual Number, 1988 to 2008
(Adjusted 1997)
(click to enlarge)
What emerged from the data was one clear pattern up to 1995, and another one thereafter. The CLA's granted each year by Court of Appeals Judges dropped precipitously after 1995. The drop was immediate, substantial, and lasting.
And, well, 1995 just happens to be the year in which then-Governor George Pataki began to publicly castigate the Court for being too liberal, for "coddling criminals," for caring more about criminals than victims. You know the lines.
True or not, the criticisms instigated other politicians and several newspapers to join in a seemingly relentless several months of Court-bashing. True or not, the criticisms were followed by a conservative swing at the Court. The decisions of the Court and the voting of individual Judges became significantly more favorable to the prosecution, less sympathetic to the claims of the accused.
It was at this very same time that the Court of Appeals Judges began to grant fewer criminal appeals. Far fewer. About half as many. That continued through the most recent, completed 5-year period-- the last five years of the Kaye Court, 2004 through 2008.
(Fuller discussions of the foregoing background are available in previous posts on New York Court Watcher. See, e.g., NY Court of Appeals: Granting Criminal Appeals--Up, Down, Now Up Again? (Part 7: Pataki's Attack and The Court's Retreat), Dec. 5, 2009; (Part 6: The 1997 "Blip" & What it Says About the Drop), Dec. 2, 2009; (Part 5: When Did The Grants Drop?), Nov. 30, 2009.)
With that recapped background, let's now return to those most recent, completed 5 years. Let's take a look at a piece of that data-packed Graph 1.
GRAPH 4
CLA's Granted by Each Judge
Each Year, 2004-08
(click to enlarge)
Graph 4 depicts the number of CLA's granted by each Judge on the Court of Appeals for each year of that 5-year period. Although the Judges are ordered in the graph by seniority, it's still clear that a couple of the more junior Judges are the ones that have been granting CLA's at the highest rates: Judges Eugene Pigott and Robert Smith. (Pigott was appointed in late 2006, so only the figures for 2007 & 2008 are included for him. Smith was appointed in early 2004, so all 5 years are included for him.)
Beyond that, however, a clearer picture emerges from a look at the annual averages for the individual Judges, and the comparisons among them. Take a look.
GRAPH 5
CLA's Granted by Each Judge
Ann. Avg., 2004-08
(click to enlarge)
The graphing of annual averages certainly sharpens the contrasts among the Judges. Again, Pigott and Robert Smith granted the most criminal appeals. Just as clearly, and in very sharp contrast, Judges Susan Read and Victoria Graffeo granted the fewest.
If the graph is reorganized to take the Judges out of seniority-order and into order by CLA grants, the Court's spectrum is underscored. Let's see.
GRAPH 6
CLA's Granted by Each Judge
Ann. Avg., 2004-08
(descending order of grants)
(click to enlarge)
As shown in Graph 6, now-retired Judge Albert Rosenblatt and 2007-appointed Judge Theodore Jones granted the most CLA's after Pigott and Robert Smith. In fact, their numbers are quite similar to Smith's.
Also notable, and highlighted by the data rearranged this way, is the real spectrum that exists among the Judges. And the non-partisan, non-ideological (at least non conservative-versus-liberal) character of that spectrum. Pigott and Smith, with the most grants, and Read and Graffeo, with the least, are all appointees of Republican (Court-bashing) Governor George Pataki.
If the graph is restricted to Judges who were still on the Court last year (who, except for Chief Judge Kaye who was required by law to retire at the end of last year, remain on the Court), the result is a more immediately relevant depiction of the data. Here is how the annual averages look with that modification.
GRAPH 7
CLA's Granted by Each 2008 Judge
Ann. Avg., 2004-08
(descending order of grants)
(click to enlarge)
Nothing different of course. But a cleaner, less crowded look at CLA granting by the Judges who were still on the Court through last year.
Interestingly, the Judges in between the 2 extremes--i.e., Theodore Jones, Carmen Ciparick, and Judith Kaye--were all appointed by a Democratic Governor. Indeed, they were the only appointees of Democratic Governors at the time and were the 3 most liberal, or pro-accused, of the 7 Judges. (For a discussion of Kaye, Ciparick, and Jones as the most liberal, pro-accused members of the Court as of last year, see Court of Appeals: What Lippman Inherited (Part 2 - Criminal Law Voting Spectrum), Mar. 19, 2009.)
Finally, let's conclude by simplifying that data-crowded graph this post began with. Let's restrict it to Judges who were still on the Court last year, and to data from the last 2 completed years--i.e., the last 2 years of the 5-year period we've been looking at.
GRAPH 8
CLA's Granted by Each 2008 Judge
Ann. Avg. & Each Year, 2007-08
(descending order of grants)
(click to enlarge)
So this was the state of affairs with CLA grants among the Court of Appeals Judges at the end of last year. Looking at the last 2 completed years, 2007 and 2008, gives a good idea of the very recent CLA granting rates of the Judges.
In fact, it gives a good look at what the new Chief Judge, Jonathan Lippman, inherited upon his appointment to the Court's center seat in February of this year. Minus, his predecessor, Judith Kaye, this is the status of CLA grants by his new colleagues.
Some Judges, namely Pigott and Smith, were granting several times as many CLA's as Read, and twice as many as Kaye and Graffeo. The new Chief Judge could have done nothing about the disparity. Or he could have sought to lower Pigott's and Smith's numbers. Or raise Read's and Graffeo's. Or moderate all the Judges to the numbers of Jones and Ciparick.
In the next post in this series, we'll take a look at what Lippman actually did. Or at least what has happened with CLA grants since Lippman took the helm at New York's highest court.
