Saturday, May 25, 2024

Part 4, Update and More on Criminal Appeals--NYCOA: The Wilson Uptick

In Part 1 of this series, we looked at the first 4 months of Rowan Wilson's tenure as New York's Chief Judge and saw a 45% increase in total appeals calendared over the corresponding period the previous year. In Part 2, we saw that the number of criminal appeals calendared had actually doubled. In Part 3, we saw that the number of criminal cases calendared continued to increase dramatically through the next 3 months--nearly double the number for the same 7 months the previous year.

        (click to enlarge for a better view) 
Former Chief Judge Lippman with Chief Judge Wilson
at the 2024 Lawrence Cooke Symposium,
Albany Law School, April 25
(Several graphs in those previous posts depicted the comparisons of the early-Wilson era with that of the pre-Wilson months and with the corresponding months of Chief Judge Jonathan Lippman's final year. In short, criminal appeals rose sharply under Wilson, but not nearly at the level when Lippman was Chief Judge. 
The graphs also depicted Wilson's record of granting CLAs [Criminal Leave Applications] as the highest on the Court, both before and after he became Chief Judge. But, again, Wilson's record is still far below that of several members of the Court when Lippman was Chief Judge--including that of Lippman himself.) 

Let's now look at the caseload for the first full year of calendars with Wilson as Chief Judge. This would include the cases calendared for the Court's sessions from September 2023 until the Court's coming summer break this year.  And let's compare that to the caseloads of the corresponding previous full year of calendars--all set prior to Wilson becoming Chief Judge--and the corresponding full year of calendars during Lippman's final year before mandatory retirement. Here's what that looks like:

(click to enlarge for a better view)
As shown in the graph, total criminal appeals calendared in the first full Wilson year increased significantly over the previous year--76% increase. Despite this increase, however, the number is still far smaller than during the corresponding fall-to-spring term while Lippman was Chief Judge. To be clear, the point is not the more the better or that there is some ideal number. What is clear, however, is that the Court's criminal caseload did drop rather drastically from what it was in the Lippman era, and that the caseload is now increasing--if not as dramatically, certainly significantly.

As for the total number of cases calendared, civil as well as criminal, the roller coaster is similar. Take a look:
(click to enlarge for a better view)
As depicted in the graph, the total number of appeals calendared at the Court had dropped to less than one half--only 39% --of what it was under Lippman. In the first full fall-to-spring year under Wilson, the caseload has increased 47%. Still, it is a long way from the Lippman caseload, but unmistakenly a considerable rise.

This increase under Wilson is not surprising. He has made clear his belief that New York's highest court should be hearing more cases as part of "returning the court to its former glory. 'I would like to get back to that,' he said." [State Bar News/Annual Meeting 2024.]
He expressed similar sentiments at the Chief Judge Lawrence Cooke Symposium at Albany Law School last month. [The Eminence and Experience--and Exhaustion--of Being New York's Chief Judge, April 25, 2024. (See photo above.)]

Beyond that, regarding the criminal cases, Wilson's record for granting CLAs [Criminal Leave Applications] has rather consistently been the highest on the Court. It was so, for example, in the last two years of the Court under his predecessor, Chief Judge Janet DiFiore. Take a look:

(click to enlarge for a better view)
As shown on the graph, Wilson's average of granting 8.5 CLAs each year was the highest in the final years of DiFiore's tenure.
(Notably, among the five Judges who were on the Court for the entirety of those last two years, the contrast was stark: from Wilson's 8.5 to DiFiore's and Garcia's 1.5. Obviously, those parties whose CLAs were assigned to Wilson were far more fortunate than those assigned to DiFiore or Garcia.)

Wilson's record for granting the most CLAs--and the stark contrast among the Judges--continued after DiFiore left the Court. Here is what the first post-DiFiore year looked like:

(click to enlarge for a better view)
Once again, Wilson's record for granting CLAs was the highest among the Judges.
(Notably also, both his record and the Court's average jumped quite a bit in that immediate post-DiFiore year. Judges Rivera's, Cannataro's, and Troutman's records all contributed to the doubling of the Court's average. And as was the case while DiFiore was Chief Judge, the contrast among the Judges' records remained quite extraordinary. From Wilson's high of 17 CLA grants to Garcia's 1. Again, parties whose CLAs were assigned to Wilson--or to Rivera, Cannataro, or Troutman--had a much better chance for the opportunity to have their cases reviewed by the Court than if their CLAs were assigned to Garcia. This imbalance, the result of the single-Judge CLA decision-making process, has been the subject of much criticism. See, e.g., Eugene F. Pigott Jr., Criminal Leave in the Court of Appeals a Case of Implicit Bias?, 85 Albany Law Review 169 [2021-2022])

To continue the aside about the imbalance resulting in CLA-granting records, it should be made clear that this is not a recent phenomenon--not a result of Janet DiFiore being Chief Judge or of her departure. This has been a long-term feature of the single-Judge CLA decision-making process. For example, the contrast was just as great while Judith Kaye was Chief Judge. Take a look:

(click to enlarge for a better view)
As depicted in this graph [from (Part 3) NY Court of Appeals: Criminal Leaves Still Up & Still Uneven.], among the Judges who were on the Court for the entire last two years of Kaye's tenure as Chief Judge, the CLA-granting records ranged from Pigott's annual average of 11 to Read's average of 1.5.  As for the Court as a whole, CLA grants then doubled in the following years under Chief Judge Lippman from what it had been under Kaye. Here's a look at Court averages for total CLA grants over the years:

(click to enlarge for a better view)
As depicted in this graph [from NY Court of Appeals: Steep Cut in Criminal Cases (part 2).],the CLA grants during both the Wachtler and Lippman eras at the Court were double that of the latter 10 years of the Kaye era.

This is a long way of saying that, regarding CLA grants, there has been a contrast among the Chief Judge tenures just as there has been among the individual Judges themselves. With the criminal caseloads now increasing under Wilson, and his consistent record of granting the highest--or one of the highest--numbers of CLAs among the Judges, there is good reason to believe that parties seeking appeals in criminal cases will have an increased opportunity to have their cases heard by New York's highest court with Wilson as Chief Judge.

In the next post, we'll look at a significant change--actually a turnaround--in who's now dissenting at the Court of Appeals.