Sunday, April 21, 2024

Part 3, More on Criminal Appeals--NYCOA: The Wilson Uptick

In Part 1 of this series, we saw that the number of cases calendared for a hearing at the Court of Appeals in the first 4 months since Rowan Wilson became New York's Chief Judge increased significantly. A 45% increase over the same 4 months the previous year. In Part 2, we saw that the number of criminal cases calendared for oral arguments for the same 4 months had actually doubled. 

Let's now look more broadly at the changing criminal caseload at New York's highest court under Rowan Wilson.

Source: Office of Governor of New York/
Darren McGee via AP
First, has the increase continued? Since we looked at the calendared criminal appeals in Part 2, three additional full months have been calendared under Chief Judge Wilson. February, March and April of 2024 have been added to the four previous months since Wilson has been responsible for the Court's calendar. So, now, let's compare the seven months of calendars under Wilson--i.e., the seven calendars from September 2023 through April 2024. [N.B., as usual, no oral arguments were calendared for Decenber.]

Under Wilson, the number of criminal cases calendared has continued to increase dramatically. It has nearly doubled as compared to the number for the same months the previous year before Wilson became Chief. For Wilson's first seven calendars, 47 criminal appeals were scheduled for argument. For the previous year, the number for the corresponding seven months was 25. That's an 89% increase.

Lest the Wilson increase be deemed excessive, it should be noted that for the corresponding final seven months of calendars under Chief Judge Jonathan Lippman--i.e., September 2014 - April 2015--the number was 68. Here's how those numbers look:
(click to enlarge for a better view) 

Similarly, the total number of appeals--civil and criminal--has also increased significantly, albeit not as dramatically, under Wilson. For those same seven months of calendars, the total number of appeals calendared for oral arguments increased from 64 prior to Wilson's elevation to 93 thereafter--a 45% increase. Again, lest that increase be deemed excessive, the corresponding number under Chief Judge Lippman was 152! Here's how those numbers look:
(click to enlarge for a better view) 

Returning to criminal appeals, the increase is no doubt largely attributable to Chief Judge Wilson's own view that the Court should be hearing more criminal appeals than it had been in the recent past. This is clearly evinced in his record in granting Criminal Leave Applications.
[For those unfamiliar with Court of Appeals procedures: These CLA's are distributed equally among the Judges. And whether to grant or deny an appeal--i.e., whether to allow the criminal case to be reviewed by the Court--is the sole decision of the one Judge to whom the CLA happened to be distributed. No other Judge participates in that decision.]

Since Rowan Wilson has been a member of the Court, he has consistently been granting a much higher number of CLA's than most of his collegues. For example, in the final three years under his predecessor, Chief Judge Janet DiFiore, Wilson averaged granting 10 criminal cases a review each year. At the other end of the spectrum, Judge Michael Garcia averaged less than 1 grant a year.

Here's how the numbers look for the four Judges who were on the Court for the entire final three year period under DiFiore--September 2019 through August 2022:
(click to enlarge for a better view)

As the graph shows, Wilson had been granting 5 times as many CLA's as Chief Judge DiFiore, and 10 times as many as Judge Garcia. Moreover, Wilson's record has remained the same in the post-DiFiore era. Indeed, for the the last 12 months for which CLA numbers are available, March 2023 through February 2024, he has remained the most generous among his colleagues in granting review. Take a look at the records of the six Judges who have been on the Court for all of these these recent 12 months:
(click to enlarge for a better view)

As the graph shows, Wilson again granted 10 times more CLA's than Judge Garcia. He also granted 5 times more than Judges Madeline Singas and Anthony Cannataro.

Finally, for one more time, lest it be thought that Wilson's record of granting CLA's has been excessive, let's compare his record during the DiFiore era with that of the Judges on the Court under Chief Judge Lippman. Here are the individual CLA records for the final three years of both eras. Take a look:
(click to enlarge for a better view)

Credit: Nathaniel Brooks for The New York Times
The graph displays the records of the Judges who were members of the Court for all three of the final years of the Lippman Court and the corresponding Judges of the DiFiore Court. As the graph makes clear, Wilson's record of granting 10 CLA's a year, although considerably higher than that of his colleagues on the DiFiore Court, would have been quite modest on the Court under Lippman. While his record of granting review was 5 times higher than that of Chief Judge DiFiore (2 average grants), it was less than one half that of Chief Judge Lippman (21 average grants).

Whether Chief Judge Wilson's record of granting CLA's is ideal, too high, or too low is not the point.
(I acknowledge my own view that some of his colleagues have been far too stingy, and that it is better for the Court and far fairer for the litigants and their clients to be allowed a hearing before the state's highest tribunal.)

But whatever is wiser or fairer, the facts are that Wilson has been considerably more generous than most of his colleagues in granting the right to have criminal appeals heard by the Court, and the Court under his leadership has been hearing significantly more criminal appeals than it had in recent past years. No, not as many as were being heard under Chief Judge Lippman. But many more than under Wilson's immediate predecessor, Chief Judge DiFiore.

Next, we'll look at changes in who's been dissenting at the Court, and how the Court has been deciding those divided cases.