NY Court of Appeals: Granting Criminal Appeals--Up, Down, Now Up Again? (Part 10: Who's Granting Now?)

Haiti
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It's Lippman, Graffeo, and Read. They're the ones who made the difference in 2009.

But first an update. The latest available data for 2009 shows that additional criminal appeals were filed in the last few days of the year. Here's what the latest tally of criminal leave applications (CLA's) granted last year looks like.
GRAPH 1
Total CLA's Granted by COA Judges
1999-03 Avg. & 2004-08 Avg. vs. 2009
(click to enlarge)

77 CLA's granted by Court of Appeals Judges is the latest total. (This total is derived from the latest available data on Westlaw, Lexis-Nexis, and the Court's own published case filings.)
As we've seen previously on New York Court Watcher, even with less complete totals, the number of grants in 2009 represents a very sharp increase from recent years.

Graph 1 depicts the contrast between the total grants for 2009 and the average annual number for the 2 most recent 5-year periods: '99 through '03, and '04 through '08.

Because averages can be misleading, let's look at the contrast between the number of grants in 2009 and the number for each of those preceding 10 years.
GRAPH 2
Total CLA's Granted by COA Judges
1999-2008 vs. 2009
(click to enlarge)

Again, as we've seen previously, the 2009 grants far exceed those for any individual year in the recent past. Graph 2 depicts just how sharp the contrast is.

Moreover, this jump in 2009 seems the result of a deliberate policy change at the Court. An article in the New York Law Journal last April, on the low rate of CLA grants in recent years, was met with Chief Judge Jonathan Lippman's expressed concern and intent to address the issue. Some change was apparently then adopted within the Court, and CLA grants are now up.

So who's granting more CLA's now? Let's look.
GRAPH 3
Significant Changes in Granting CLA's
2007 & 2008 vs. 2009
(click to enlarge)

As shown in Graph 3, dramatic increases in the number of CLA's granted in 2009 are attributable to Chief Judge Lippman and to Judges Victoria Graffeo and Susan Read.

As for Lippman, he granted 3 times as many criminal appeals in 2009 as his predecessor, Chief Judge Judith Kaye, did in each of the previous 2 years. Lippman's increase over Kaye is even more remarkable when one considers that his 2009 total does not even represent an entire year. Lippman was appointed to the Court in mid-February and, thus, he probably reviewed CLA's for 10 months at most.

As for Judge Graffeo, she clearly responded to the Law Journal article, or to the complaints about low CLA grants that it reported, or to whatever might have been decided or discussed within the Court thereafter. Her grants more than doubled from the year before.

Judge Read, who has been especially frugal in granting criminal appeals, and who was harshly criticized for being so, more than tripled her grants from the immediately preceding years. Her 2009 numbers are well below those for Lippman and Graffeo. But the proportional increase in her CLA grants is even more substantial.

The combined increase by these 3 Judges alone--Lippman from (Kaye's) 5 to 14, Graffeo from 4 to 11, and Read from 1 to 6--adds up to a 21 grant difference from 2008 to 2009. That represents an increase from 10 grants in 2008 to 31 in 2009 attributable to these 3 Judges.

As for the rest of the Court, the following graphs variously illustrate the CLA grants for all 7 Judges in 2009 contrasted with their records in preceding years.
GRAPH 4
CLA's Granted by Each Judge
2007 & 2008 vs. 2009
(click to enlarge)

As depicted in Graph 4, Lippman granted the most criminal appeals in 2009--again, even though he was not on the Court the entire year. He is followed closely by Judges Eugene Pigott and Robert Smith. Those 2 actually continued their relatively high rates of CLA grants from the year before.

Judge Carmen Ciparick granted 12 criminal appeals in 2009. This, however, is not nearly as much of a difference from the preceding 2 years as it might seem. Among her total for 2009 were applications from 4 defendants, which she granted at the same time, from the same Appellate Division decision below. Taking that into account, Ciparick's total would more accurately be closer to 9. That is quite similar to her 7 and 8 grants for the 2 preceding years. All of which place her between the high and low ends of the Court.

Judge Theodore Jones's 9 grants in 2009 represents little change from his 8 the year before. His numbers place him, with Ciparick, somewhere in the Court's middle.

As discussed before, Judge Read's 2009 grants represent a marked increase from the immediately preceding years. But they still represent the lowest number of any of her colleagues.

Here now is a somewhat less cluttered way of viewing the same data. The figures for the 2 preceding years are simply compressed into averages.
GRAPH 5
CLA's Granted by Each Judge
2007+2008 Avg. vs. 2009
(click to enlarge)

As seen in Graph 5, every Court of Appeals Judge granted more criminal appeals than they had on the average for the previous 2 years. As for Chief Judge Lippman who only joined the Court last year, his grants were triple that of his predecessor's average. And again, dramatic increases are evident as well for Judges Graffeo and Read. (As noted above, Judge Ciparick's 12 grants is more accurately 9, which represents an increase, but nearly of a similar magnitude.)

Finally, taking into account the preceding 5 years, rather than 2, yields a similar contrast with 2009. Let's look.
GRAPH 6
CLA's Granted by Each Judge
2004-08 Avg. vs. 2009
(click to enlarge)

Again, what is clearly depicted is that Lippman, Graffeo, and Read are responsible for the sharpest rise in grants. (Recall again, that Ciparick's number is more accurately 9.) Also evident from the contrast between 2009 and the preceding 5 years is that Judge Smith's grants, which have been relatively high the past couple of years, are significantly higher than they had been on the average over that 5-year period.


That just about winds it up for New York Court Watcher's look at the fall and rise again of CLA grants at the Court of Appeals. After 10 separate posts on the topic, I'm just about CLA'd out! But the bottom line: it's pellucidly clear that the Court under Lippman is granting far more criminal appeals than it was previously. Lippman, Pigott, and Smith grant the most. Lippman granted far more in 2009 than Kaye did while she was Chief, and Graffeo and Read granted significantly more in 2009 than they did in previous years.

That's the bottom-line, black-law version of recent developments in CLA grants at the Court.

Supreme Court: Lessons from the Campaign Reform Decision

Haiti
***************

As if we needed a reminder--and astonishingly, some of us seem to need one periodically--the Supreme Court is not what we're usually told it is or is supposed to be. You know, what we're told by politicians, nominees, the Justices themselves, some who follow the Court and should know better, and grade school teachers.

Yes, grade school teachers. Because how they describe the Judicial Branch to our children is just about as sophisticated as what the others tell us about the Court's role and how it functions. Just think back several months to the laughably superficial and puerile debate about the Court during the Senate confirmation of Sonia Sotomayor.

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.]

GRAPH 1
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 http://ssrn.com/abstract=1155547]; 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.
GRAPH 2
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.