Friday, October 28, 2016

Part 7 - Observations: Leaning Pro-Prosecution (Early DiFiore Court Patterns)

(The Court released a flurry of decisions this past week. One notable development is that the Chief Judge has voted in dissent a second time [M/O Jamal S.] and, as in the first, it was a 4-3 decision. This latest crop of decisions does not, however, alter any of the general patterns evinced in the "Early DiFiore Court" figures with which we've been dealing, nor does it suggest a change in any of the concluding observations now being offered.)

We have already seen the breakdown of pro-prosecution versus pro-accused in divided decisions in the early DiFiore Court. That is, in every decision by New York's highest court in a criminal appeal in the first 6 months of the Chief Judge DiFiore era, where at least one of the Judges disagreed with the majority--either in a dissent or a separate concurring opinion taking issue with the majority's analysis. There were 17 such divided decisions.

Specifically, we have already looked at the frequency with which each of the Judges voted for positions more favorable to the prosecution, and for positions more favorable to the accused. Here is what we've seen, focusing now on the pro-prosecution data:
(click on any graph to enlarge)
First, the Court as a whole sided with the prosecution, i.e., adopted the more pro-prosecution side of the issue that divided the Judges, most of the time. In fact, in a considerable majority, 65%, of those cases.

Beyond that, every Judge but one--Judge Jenny Rivera--sided with the prosecution in more of the cases than not. Several of those Judges voted for the more pro-prosecution position in a high percentage of those cases, i.e., Chief Judge Janet DiFiore, and Judges Eugene Pigott and Michael Garcia. In fact, Judge Garcia voted pro-prosecution in every one of these cases in which he participated (15 out of 15), and Judge Pigott did so in nearly every one (14 out of 17).

By sharp contrast, and alone in supporting the prosecution less than half the time, was Judge Rivera. Indeed, she virtually never voted for the more pro-prosecution position in these cases (1 out of 17). No other member of the Court has a record that even approaches hers.

But let's look a bit closer at these figures. Let's limit our focus to those decisions where at least 2 of the Judges disagreed with the majority. That is, those cases where at least 2 Judges on the 7 member Court had a different view than the majority of their colleagues. So let's eliminate those cases where a single Judge dissented. Here's what that looks like:
When restricting our focus to these cases, i.e., the 11 decisions where the Judges split 4 to 3 or 5 to 2 [or 4 to 2 where one of the Judges did not participate], the Court's record appears less one sided. It's 55% pro-prosecution record (6 out of 11 cases) seems much more evenly balanced.

In fact, 3 of the Judges--Rivera, Sheila Abdus-Salaam, and Eugene Fahey--have records supporting the pro-prosecution position less than half of the time. And only two members of the Court--Pigott (9 out of 11 cases) and Garcia (11 out of 11)--have records that are unequivocally pro-prosecution.

All of this suggests that the single-dissent decisions, the 6 remaining divided decisions, are the ones that make the overall record of the Court seem so strongly pro-prosecution. So let's look at the records compiled in those 6 cases. To underscore the contrast, we'll focus on the pro-accused voting.
Sure enough, the records in these single-dissent cases reveal why the Court's overall record, i.e., when all the divided cases are considered, appears so pro-prosecution. Judge Rivera, whose record has been shown to be the least pro-prosecution within the Court by a wide margin, voted for the more pro-accused position in all 6 of these cases. Once again, no other Judge's record approaches hers.

Among the other Judges, 3 of them--Pigott, Abdus-Salaam, and Leslie Stein--voted pro-accused only once. The 3 remaining Judges--DiFiore, Fahey, and Garcia--never voted that way in any of these cases. (It must be added, however, that Chief Judge DiFiore and Judge Garcia did not participate in 2 of the cases, including that 1 case where all the other Judges, except Fahey, sided with the accused.)

As the figures in this graph reveal, in 5 of these 6 single-dissent cases, Judge Rivera was the lone dissenter, and she sided with the accused each time. To put it differently, in 5 of these 6 cases, all the other participating Judges of the Court took the more pro-prosecution position. It is these single-Rivera-dissent cases which make the Court's overall record, as well as the records of some of the other Judges, appear so pro-prosecution.

What is nevertheless true, what emerges regardless of how the data are viewed, is that Judges Pigott and Garcia do have distinctively pro-prosecution records. What is also true, is that in most of the single-dissent cases--5 out of 6 of them--the Court's majority did side with the prosecution, while only one of the Judges supported the accused.

It would not seem accurate to label the record of the early DiFiore Court as unambiguously pro-prosecution. Or even strongly so when the record is closely analyzed. But it would be fair to say that the record is certainly not pro-accused.

Judge Rivera's record is clearly pro-accused. But her record stands alone. The records of Judges Abdus-Salaam and Fahey may be considered pro-accused when contrasted with that of some other members of the Court and of the Court itself.

On the other hand, the records of the Chief Judge and Judge Stein are somewhat pro-prosecution, especially when contrasted with those of Rivera, Abdus-Salaam, and Fahey. When added to the decidedly pro-prosecution records of Judges Pigott and Garcia, it is no surprise that the record of the Court as a whole leans pro-prosecution.

And that's probably the fairest way to put it. The early DiFiore Court has been leaning pro-prosecution.

Next, we'll see what can be concluded from the dissents thus far in the Court's decisions.