The Incredible Shrinking Docket: Criminal Appeals (CLA's) Granted by Court of Appeals Judges

I wish Chief Judge Janet DiFiore, of whom I am personally fond, the very best on her announced departure from the Court.

Oral Arguments/Court of Appeals Website

We've previously looked at the Court of Appeals' dramatically reduced caseload over the past few years--both the total appeals and, separately, the criminal cases. Now let's look closer into the latter.

Let's see how many criminal cases the Court itself has been choosing to hear--as opposed to criminal cases reaching the Court as of right or because an Appellate Division Justice granted leave to appeal. Let's compare those recent CLA (Criminal Leave Application) numbers with the numbers in the past. Then let's see how many CLA's each of the individual Judges has been granting.

(For those who may not be familiar, here's a quick outline of the CLA process:

When a party, whether prosecution or defense, loses in the court below, it may choose to apply to the Court of Appeals for review. That "Criminal Leave Application" (CLA) is assigned by the Court to one Judge who alone decides whether or not the Court will hear the appeal. These CLAs are distributed equally and randomly to the individual Judges. As might be expected, some Judges are more generous in granting CLAs, and some Judges are less so. For this reason, the process is viewed by many as inherently unfair, and certainly less fair than the different procedure for civil cases, in which the entire Court decides whether to hear the appeal. The odds of having one's CLA granted and, therefore, of having one's case reviewed by the Court, depend to a large extent on the particular Judge to whom the CLA is assigned.)

Here's a look at the collective number of CLAs granted by the Judges of Court for each year from 1988 through 2021. That span of time covers the last several years of the Court under Chief Judge Sol Wachtler, the entire tenures of Judith Kaye and Jonathan Lippman in the center seat, and continues through the last several years with Janet DiFiore presiding:

(click to enlarge for a better view)

Similar to the figures we've seen previously regarding the Court's caseload (the total appeals and the criminal cases), the Court under Chief Judge DiFiore has been granting far fewer CLAs than the Court had typically done in past years. Indeed, as clearly shown in the graph, the decrease has been drastic. And that decrease began as soon as DiFiore replaced her retired predecessor, Jonathan Lippman.

Let's simplify the graph a bit by looking at 5-year averages--again from the tenure of Chief Judge Sol Wachtler through the recent years under DiFiore. Take a look:

(click to enlarge for a better view)

As the graph makes plain, the Judges of the Court under Chief Judge DiFiore have been granting less than half the number of Criminal Leave Applications that the Judges had been granting under Chief Judges Wachtler and Lippman, as well as during the early years of Chief Judge Kaye's tenure. The only era approaching the decrease that has occurred under DiFiore is that which occurred in the last several years under Kaye. (Notably, that decrease under Kaye followed Republican then-Governor Pataki's harsh criticism of the Court for "coddling" criminals and his appointing a majority of "law and order" Judges to the Court.)

For a seven-Judge court, the annual average of 49 CLA grants under DiFiore equates to an average of  7 CLA grants per Judge. That contrasts with over 14 per Judge under Lippman and during the early years of Kaye's tenure, and with even more than that under Wachtler.

Let's now look more closely at the contrast in CLA grants from the years with Lippman as Chief Judge to those under DiFiore. Specifically, let's take a look at the number of CLAs granted by the individual Judges during those two eras. Here it is:

(click to enlarge for a better view)

[The graph includes the records of all the Judges who were on the Court for at least 3 of the 5 years under either Chief Judge Lippman or DiFiore. All the Judges were on the Court for the full 5 years in the respective eras, except for the Judges who were on for 3 years as indicated by an asterisk.]

As the graph shows, under Chief Judge Lippman, every Judge, except one (Susan Read), was granting more CLAs per year than every Judge has been doing under DiFiore. In fact, Chief Judge Lippman and Judges Victoria Graffeo, Eugene Pigott, and Robert Smith--the latter 3 all appointees of Republican Pataki--were granting more than twice as many CLAs as every Judge has been doing under DiFiore, except for Judge Rowan Wilson.

Notably, Wilson has been granting significantly more CLAs than any other Judge under DiFiore, and he is the only one whose grants approach that of most of the Judges under Lippman. By sharp contrast, three of the Judges under DiFiore--the Chief Judge herself and Judges Leslie Stein and Michael Garcia--granted less than 1/3 of any Judge under Lippman, and far less than that compared to some of the Lippman Judges. In fact, DiFiore, Stein, and Garcia granted less than 1/2 of any other Judge during DiFiore's tenure.

What does all this mean? Well, the most obvious is that parties in criminal cases had a much greater chance of having an appeal heard by New York's highest Court under Chief Judge Lippman than under DiFiore. Beyond that, parties seeking to have their cases reviewed in recent years had better odds of succeeding if their CLAs were assigned to Judge Wilson than to other Judges on the Court. Indeed, if the parties' CLAs were assigned to DiFiore, Stein, or Garcia, their odds of having the Court of Appeals review their cases were greatly diminished than if their CLAs had been assigned to other Judges on the Court--not only Wilson, but also Judges Jenny Rivera or Eugene Fahey.

It is no wonder that the CLA process has come under so much bitter criticism by so many lawyers, judges, and their related organizations. Many agree with Judge Pigott--who happened to serve under Chief Judges Kaye, Lippman, and DiFiore. He has been outspoken about the CLA process in which he had a good deal of experience: "There’s no doubt this has to change. It’s absurd." [As quoted in, Drop in criminal caseload puts spotlight on how top court chooses its cases, by Yancey Roy, Newsday, July 18, 2021.]

Yes, in my view, absurd and terribly unfair. And those characteristics are only intensified when the Court, and specifically some members of the Court, drastically reduce the number of CLAs being granted.