Monday, January 18, 2010

NY Court of Appeals: Granting Criminal Appeals--Up, Down, Now Up Again? (Part 9: Significant Increase in 2009)

Thoughts, Prayers, Hope and Love to the Beautiful, Magnificent People of Haiti

[On another personal note--this one now embarrassingly trivial--I was away in Scottsdale during the winter break, returning just in time for the first week of the new semester. As cold and miserable as it was throughout much of the country, that's how glorious it was in Arizona. You know, deep blue skies, bright sun, desert-dry air, cool in the shade but warm-to-hot in the sun; mountains, saguaros, hummingbirds, red rock, canyons, Turf Paradise (It ain't Saratoga, but it is a beautiful track.), etc., etc., etc.
So returning to the frigid Albany winter has been quite a shock to the system. But there's absolutely no complaint here. Upstate New York and Arizona are my favorite places--well, ok, I've got to add Rome. And I'm privileged to teach at a wonderful institution, with fine colleagues, and my students are terrific.
IAE, it's now back to work on this blog after my holiday absence.]
Total CLA's Granted
by COA Judges
1999-03 Avg. & 2004-08 Avg. vs. 2009
(click to enlarge)

Criminal leave grants by the Court of Appeals were up in 2009. Significantly so. As depicted in Graph 1, the number of criminal appeals taken by the Court jumped well above the typical figures for the previous 10 years.

Recall that the number of criminal leave applications (CLA's) granted by the Judges of New York's highest court had been quite low in recent years. In 1995 and 1996, then-Governor George Pataki publicly excoriated the Court for "coddling criminals," for caring more about criminals than victims, blah, blah, blah. That fairly commonplace court-bashing was joined by other politicians and by some New York City tabloids.

Regardless of the merits or nonsense of those castigations, they apparently had their effect. Almost immediately thereafter, the Court's decisions became markedly more pro-prosecution and--what is most relevant here--the Court's Judges began to grant far fewer criminal appeals. Indeed, about half as many as before.

A story by Joel Stashenko in the New York Law Journal last April called attention to the low numbers of CLA's being granted. It also quoted some representative complaints by lawyers about the difficulty of getting a criminal case reviewed by the Court--especially when CLA's were assigned for decision to particular Judges. The newly appointed Chief Judge, Jonathan Lippman, said he would look into the matter. And voila, things changed once again. Suddenly, more CLA's--many more--were being granted by the Court.

(For discussions in previous posts on New York Court Watcher, see, e.g., NY Court of Appeals: Granting Criminal Appeals--Up, Down, Now Up Again? (Part 8: Who Was & Wasn't Granting the Previous 5 Years), Dec. 18, 2009; (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.
For extended discussions of the criticisms levelled against the Court of Appeals and the apparent aftermath, see 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].)

The dramatic increase in criminal appeals granted by the Court is even more remarkable than the numbers alone suggest. The increase reflects a change that did not take effect until 4 months into 2009. The New York Law Journal story was published on April 22. The Court's next session was the last few days of April and the first few of May. Assuming the change was brought about immediately after the Law Journal story and during the Court's session, it was in effect for only the last 8 months of the year. And still, the increase represents a substantial jump.

From an average annual number of 45 or 46 CLA grants for the previous 10 years, to 75 in Lippman's first year as Chief. This should be very welcome news to criminal lawyers--as well as to anyone else who believes that the Court has been unduly rejecting (cum avoiding) criminal appeals. (N.B., the 2009 figure is asterisked in the graphs because it may not be complete. The figure reported here is based on the data thus far available on Westlaw, Lexis, and the Court's own case filings.)

Let's now look at the numbers in Graph 1 a bit differently. Instead of the two 5-year averages (1999 through 2003, and 2004 through 2008), let's look at each one of the 10 years. Let's contrast those to 2009. Here it is.
Total CLA's Granted
by COA Judges
1999-2008 vs. 2009
(click to enlarge)

Nothing in the previous 10 comes close to 2009. Again, like the precipitous drop in CLA grants following Pataki's attack upon the Court, this sharp increase is too significant to be accidental. As was the case when CLA grants dropped in 1996, this jump in 2009 had to be a conscious policy decision. Either that, or it has been one remarkable coincidence.

The dramatic increase in the total number of CLA's granted by the Court in 2009 is, of course, reflected in an analogous increase in the number of CLA's granted by each of the Judges. Well, at least by some of the Judges. And these increases have been equally dramatic. Actually, even more so. We'll explore that in the next post in this series on the New York Court Watcher.