Divided decisions, where the majority is opposed by a dissenting opinion or by a separate concurring opinion on a significant substantive matter, provide insights into the Judges' strongly held positions. These are the positions held firmly enough and considered important enough that disagreements within the Court are expressed openly. And those 4-3 divided decisions, where the majority prevailed by a single vote--where a switch in just one of those votes would have switched the majority--may be the most revealing of all.
Let's take a look at the lineups in those cases [Click on any lineup pic to enlarge.]:
Criminal Cases
People v. Johnson (3/29/16): admitting the co-defendant's out-of court statement was reversible error.
[4-3]
People v. Badalamenti (4/5/16): a concerned parent had "vicarious consent" to record his minor child's conversation with the other, abusing parent; the prosecution could use as evidence.
[4-3]
People v. Nelson (4/5/16): though harmless in this case, it is error for a trial judge to allow spectator shirts bearing a deceased victim's photograph in the courtroom.
[4-3-0]
People v. John (4/28/16): a defendant has the right to cross-examine an analyst behind the government's DNA report.
[4-3]
People v. Frankline (6/9/16): though not prejudicial in this case, it was error for the prosecution to introduce the defendant's past crimes.
[4-3-0]
[4-3]
People v. McCullough (6/28/16): the trial judge did not abuse discretion in concluding that the corroborating evidence was sufficient to establish that the eyewitness identification was reliable.
[4-3]
These are the 7 criminal decisions rendered by a 4-3 majority in the first half-year of the DiFiore Court. Stated differently, these are the 7 criminal cases where the actual ruling announced by the Court--i.e., the disposition and the rule of law--was decided by a single vote.
We will look at the civil cases in the next post. But before we do, let's consider a few quick observations about these 4-3 criminal cases.
Chief Judge DiFiore was in the majority in all but one of these closely divided cases. No other member of the Court was in that single-vote majority as frequently. No other member of the Court could have changed as many of the Court's rulings--6--by changing their votes.
Right behind DiFiore were Judges Sheila Abdus-Salaam and Eugene Fahey. They were each in the majority in 5 of these 4-3 decisions and, therefore, each of them could have changed the Court's rulings in 5 of these cases by switching sides.
At the other end of the spectrum was Judge Michael Garcia. He was in the majority in only 2 of these cases. That is, in 5 of these 7 closely divided criminal decisions, he was either dissenting or expressing a significant substantive disagreement with the majority in a separate concurring opinion. In short, in most of these 4-3 criminal decisions, his vote was unnecessary to the majority, and a change in his vote would not have affected the Court's ruling.
Now, lest any of this be misconstrued, let me be clear. Voting in the majority hardly equates with being right or wise or more faithful to legal principles or precedent. And disagreeing with the majority hardly means the opposite. Indeed, every student of the law knows well that majority opinions often fail the test of time and dissenting positions are often vindicated. But those are matters far beyond the recitation of lineups and the counting of votes with which we are concerned here.
On the other hand, the lineups and the votes do reveal which Judges' positions are prevailing and which are not. Which Judge or Judges are leading the Court, or helping to take it to their preferred positions, or are at least in sync with the Court's direction. And which Judge or Judges are not.
We will be looking at the Judges' voting patterns in coming posts. But in the very next one, we will look at the Court's 4-3 decisions in civil cases.
