Monday, September 19, 2011

Lippman's Goat--What Gets It? (Part 2: Criminal Cases)

New York's Chief Judge, Jonathan Lippman, authored 10 dissenting opinions in criminal cases last year. Let's take a look at those disagreements with his court, and see what kinds of issues moved him to split with the majority of his colleagues and to do so in a public writing.

As noted in the last post, Chief Judge Lippman authored a total of 15 dissenting opinions during the course of the 2010-11 term. (I.e., the calendar beginning August 2010 after the court's summer break, and continuing through its final decision days at the end of June 2011.) He was tied with Judge Robert Smith for the highest number of written dissents among the seven judges on the state's high court. (See Lippman's Goat--What Gets It? (Part 1: Introduction), Aug. 30, 2011.)

[Dissenting opinions are especially revealing. We've discussed that point numerous times on New York Court Watcher. There are lots of disagreements among the members of an appellate court. This is particularly true on a court of last resort. On those high courts, virtually all the cases present genuine issues--i.e., there are good, reasonable, legitimate arguments supporting both sides. But typically, the different views among the judges or justices are aired only when at least one of them feels strongly enough to go public with the disagreement.
Strongly enough, that is, to spend the time, effort, and collegial capital to explain in a written opinion why the majority of the court is wrong. Strongly enough, that is, that the majority's position, the court's decision, gets the judge's goat. (See e.g., Justice Alito's Goat--What Gets It? (Part 1), Feb. 16, 2010.)]

So what disagreements were so important to Chief Judge Lippman that he chose to go public? What disagreements did he feel strongly enough about to spend the time, effort, and collegial capital on a dissenting opinion? What got Lippman's goat?

Take a quick look at the criminal cases in which Lippman wrote a dissent. We'll look at the civil cases in the next post. But for now, let's look at those 10 criminal cases where Lippman went public with his disagreement. AND...connect the dots!

People v. Pacquette. Lippman argued that the accused's right to counsel was violated because he was interrogated in the absence of his lawyer who was representing him on an arguably related crime. The majority approved the interrogation.

People v. Hayes. Lippman argued that the accused's trial rights were violated when his lawyer was not allowed to cross-examine the police about bystanders at the crime scene who made statements indicating that the accused might be innocent. The majority held that it was enough that the prosecutor had told the lawyer about those unnamed bystanders.

People v. Spicola. Lippman argued that the accused was unfairly prejudiced when a nurse, testifying as an expert, was allowed to give non-medical testimony to reinforce the victim's story. The majority didn't see a problem.

People v. Phillips. Lippman argued that the accused should not have been tried, because there was conflicting testimony about the accused's mental competence and the trial judge himself expressed "grave doubts." The majority deferred to the trial judge's decision to go forward with the trial.

People v. Rodriguez. Lippman argued that the accused, who was charged with driving while intoxicated, was entitled to have the jury consider whether he was justified in entering a rolling truck to prevent injury to the public. The majority agreed, but held that the error was harmless.

People v. Rabb. Lippman argued that the warrant for electronic eavesdropping should not have been issued, because the government did not show that normal investigative techniques were inadequate, as the law requires. The majority held that widespread corrupt labor practices justified the eavesdropping.

People v. Battles. Lippman argued that it was a question for the jury to decide, beyond a reasonable, whether the accused is a "persistent felony offender" and therefore subject to enhanced sentencing. The majority held that it was a question for the judge to decide by a mere preponderance of the evidence.

People v. McKnight. Lippman argued that the accused's sentences should run concurrently, because his convictions arose from the same single conduct. The majority approved the consecutive sentences on the ground that the charges had different elements.

People v. Wells. Lippman argued that the accused's right to be tried by the same jury that was empanelled and sworn was violated when the trial judge later excused a juror who "might be tired." The majority deferred to the trial judge's discretion.

Matter of Jimmy D. Lippman argued that the juvenile-accused's rights were violated when his mother was excluded from the interrogation and he was told to write a confession in order to get help. The majority upheld the confession.

Well, there's Lippman's 10 criminal dissents. Again, connect the dots.

It's plain to see the common denominator in these dissents. Need I even say? 

In every case, the Chief Judge was more protective of the rights of the accused than the majority of his court. In every case, he refused to excuse the questionable--or outright improper--conduct of the government. In every case, he insisted on a high level of fairness in the criminal justice system, and insisted that the government abide by the rules when investigating crime and prosecuting those who are accused.

Of course, there's more that a closer examination would reveal. But for now, for this post, that's enough.

We'll look at Lippman's dissents in civil cases next.