NYCOA: Criminal Appeals (Part 4c)--More Recent Dissents That Should Have Been Majorities

In the last post, we looked at two dissents that protested majority decisions at New York's highest court that overturned convictions because of errors having nothing to do with guilt or innocence, and where there was no suggestion that the alleged error by the trial judge had caused any prejudice to the defendant. (See Part 4b.)

Now we turn to the other two previously previewed dissents that protested majority decisions that upheld convictions, despite serious questions about guilt, and where the Court of Appeals would not even permit a hearing to consider actual innocence.

Again, cheers for those dissents as glimmers of hope amidst dismay at the majority decisions.

People v. Tiger (2018) (Wilson, J., dissenting)
People v. Thibodeau (2018) (Rivera, J., dissenting)
In both Tiger and Thibodeau, the defendants sought post-conviction relief on the basis of actual innocence. They each sought a hearing, pursuant to New York's Criminal Procedure Law, to present evidence that had not been previously available or previously considered and that raised serious questions about guilt. In both cases, the Court of Appeals majority would not even permit a fact-finding hearing to assess that evidence and consider the claims of actual innocence.

In Tiger, by a 5-2 vote, the Court held that a guilty plea was an absolute bar to a subsequent innocence claim. According to the majority, "a voluntary guilty plea is inconsistent with a claim of factual innocence."

The majority rejected the request for an innocence hearing despite the circumstances which led the defendant to plead guilty. Despite the defendant's exoneration of any wrongdoing in a subsequent civil case. And despite the unanimous conclusion of the Appellate Division (New York's intermediate appeals court) that the defendant had established a prima facie showing of innocence that justified a hearing.

Judge Wilson

Judge Rowan Wilson emphatically decried the rigidity of the majority's ruling and its seeming indifference to the injustices it perpetuates:

Natascha Tiger pleaded guilty but is innocent. 

Ms. Tiger is neither the first nor last innocent person to plead guilty. Ms. Tiger's case...provides a compelling example...Faced with seven years in prison, she pleaded guilty after her lawyer told her she could not afford to hire an expert and a guilty plea could result in a suspended sentence. 

Subsequently, when the [victim's] family sued Ms. Tiger[, e]ven though [they] had to satisfy only the "preponderance of the evidence" standard, and not the "beyond a reasonable doubt" standard, the jury found that Ms. Tiger did not cause the [victim's] injury. 

Our modern criminal justice system "is for the most part a system of pleas, not a system of trials."...We know that some completely innocent people plead guilty. In 2016, a record-setting 166 people were exonerated nationally. Of those, 74 exonerees, or 45 percent, were convicted based on guilty pleas. Of the nearly 2,000 individuals who were exonerated between  1989 and October 2016, 17 percent pleaded guilty....Research shows that innocent defendants may be motivated to plead guilty for a variety of reasons: most prominently, the threat of a more serious charge and a far longer sentence upon electing to go to trial, the fact that a plea will offer a release from pre-trial detention if the offense is low-level, and concerns about the defendant's lawyer or the availability of evidence that would conclusively demonstrate innocence. 

Relatedly, we also know that innocent suspects falsely confess...More than 20 percent of known exonerations for murder were at least in part due to false confessions... Consistently with the research on guilty pleas, the research on false confessions shows that "[t]he most potent psychological inducement is the suggestion that the suspect will be treated more leniently if he confesses and more punitively if he does not."  

The majority is focused on the importance of the finality of the plea process, and the appropriate conservation of judicial resources. Those concerns are weighty. But "conservation of judicial resources" does not appear alongside "life, liberty and the pursuit of happiness."  

Former Chief Judge Jonathan Lippman described our courts' mission thus: 

"Every wrongful conviction is a stain on the reputation of the courts, eroding public trust and confidence in the legitimacy of our institutional status and the fairness and accuracy of our decisions. This only underscores why the judiciary, the focal point of the entire justice system, is absolutely duty-bound to lead the way in making sure that the criminal justice process is as fair and accurate as humanly possible." 

Today's decision inexplicably and unnecessarily denies that mission, eschewing our obligation in favor of further legislative action or executive clemency. I will not. [Citations omitted throughout.]

To which I say, Amen!

In Thibodeau, in an unsigned memorandum for a bare 4-3 majority, the Court of Appeals rejected another substantial actual innocence claim on the same day. The defendant's post-conviction motion was denied by a hearing judge, despite considerable new evidence that others actually committed the kidnapping for which the defendant was convicted many years earlier. The hearing judge ruled that the evidence didn't even raise a "probability" that the verdict at trial would have been "more favorable." The Court of Appeals majority upheld the ruling below on the ground that it was not an abuse of discretion.

Judge Rivera

Judge Jenny Rivera's dissenting opinion set forth in detail the new evidence. In her view and that of two other Judges who joined her, that evidence severely undermined a conviction that was somewhat troubling from the start, and it persuasively demonstrated much more than a mere "probability" that others were guilty and the defendant innocent:

Defendant Gary Thibodeau has been incarcerated for over two decades—almost a third of his life—for the kidnapping of a young woman who disappeared one morning and was never seen again. No physical or forensic evidence connected defendant to the abduction, and no witness ever identified defendant as the kidnapper or placed him at the scene where the victim was taken. Nor has defendant confessed to having committed the crime; rather, he has always maintained his innocence. He now asserts that newly discovered evidence points to three men who have admitted to abducting and murdering the victim[, and he] asks for an opportunity to present this third-party culpability evidence to a jury. 

Defendant presented evidence that three [identified] men...abducted the victim..killed her, and disposed of her body by cutting it up and sending it to Canada in a vehicle being scrapped. The evidence consisted of testimony by a multitude of witnesses to these three men's inculpatory statements, as well as documents that corroborated their guilt and defendant's innocence. 

At the hearing on the motion, defendant presented additional testimony by various witnesses implicating [the three men] in the abduction, including confessions by these three to the victim's abduction and murder. 

[D]efendant presented an exhaustive amount of corroborating evidence for the confessions. [Inter alia,]several witnesses have testified to statements by these three declarants that not only implicate them in the victim's disappearance, but constitute admissions of guilt of kidnapping and murder. [Moreover, t]here is no evidence that the witnesses concocted these powerful third-party statements of guilt for defendant's benefit, nor of a motive for the declarants to inculpate themselves in a kidnapping and murder or exculpate defendant. The witnesses are a variety of ages, occupations, and levels of closeness to the three declarants. The incriminating statements themselves are also varied. At times, the declarants explained what had occurred...Other times, the statements were made as a blatant commentary that the declarant was immune to prosecution because the victim would never be found and the wrong persons—the Thibodeau brothers—were blamed for the crime. 

Contrary to the People's argument, it is not insignificant or irrelevant to our analysis that the various statements connected these declarants and pronounced their guilt of abducting the victim, her murder, and the subsequent cover-up. Far from suggesting fabrication or misperception, the interconnected and mutually-confirming nature of the statements reaffirms their reliability and the "hallmark of trustworthiness" attributed to declarations against penal interest. The quantity of overlapping statements also lends further support for their admission. 

Defendant met his burden of showing by the preponderance of the evidence that "[n]ew evidence has been discovered . . . which is of such character as to create a probability" of a verdict "more favorable to the defendant" (see CPL 440.10 [1] [g]). It is also noteworthy that the People's trial evidence was not overwhelming. No physical or testimonial evidence at trial placed defendant at the store at the time the victim disappeared, and no forensic evidence was found at defendant's home or in [the] van linking defendant to the victim. It is difficult to imagine these statements would not have "added a little more doubt to the jury's view of the evidence" such that there would have been enough uncertainty as to defendant's guilt to tip the scales in his favor. [Citations omitted throughout.]

It is difficult to imagine, as Judge Rivera wrote, that this new evidence would not have added uncertainty and tipped the scales. And difficult to imagine why a majority of the Judges would not err on the side of allowing a full post-conviction review of these two very possibly wrongful convictions. At the least, these cases were very close. Why err on the side that might well be perpetuating grievous injustice?

As for these two dissenting opinions--like those reviewed in the preceding post and like all thoughtful, ardently felt dissents--they gave voice to serious concerns about the majority opinions and  they demonstrated an independent vigilance that should always be welcomed--whether we happen to agree or disagree with the Court's decisions.

NYCOA: (Part 2: Unsigned 4-3) [Back to] June 14 Hand Downs

Dissents, Disappointments, and Open Questions

(Reviewing the Supreme Court's past term and developments--yes, and enjoying the Saratoga meet--monopolized my time for a while. Back to the New York Court.)

Judges who are proud of their opinions sign them.
And when they don't?

Let's return to that June 14 set of decisions by New York's highest Court. To be sure, the Court of Appeals' entire past year cannot be reduced to one day. But that day's particular collection of hand downs seems quite reflective of the Court's recent behavior. Indeed, other Court watchers have noticed as well.

In Part 1, we saw how the Court in People v. Tiger relied on a federal Supreme Court decision--a much criticized one, including a dreadful concurring opinion--to determine a purely state statutory question. Moreover, in doing so, it made credible claims of actual innocence much more difficult to raise. In fact, as the dissenters pointed out, the decision in Tiger was especially distressing because there was very good reason to believe that the defendant was in fact innocent--as a subsequent civil trial found him.

Here's another highlight--unfortunately noteworthy because so puzzling and, like Tiger, disconcerting: People v. Thibodeau. This decision was rendered in an unsigned memorandum, despite the deeply divided 4 to 3 vote, and despite the comprehensive and persuasive dissenting opinion about the newly discovered evidence of innocence.

This case, like the previously discussed Tiger, dealt with a convicted defendant who has insisted that he's actually innocent and involves subsequent evidence which, if true, proves that he is. Also, like Tiger, a majority of the Court denied the defendant's request for relief.

But unlike Tiger, the majority opinion in Thibodeau was contained in a memorandum which the author chose not to sign. Yes, an unsigned memorandum decision, even though the closeness and importance of the case triggered a 30 page, rigorously detailed dissenting opinion, joined by 3 of the Court's 7 Judges: signed by Judge Rivera and joined by Judges Wilson and Feinman.

In Thibodeau, the defendant was convicted of kidnapping someone whose body was never found, but who was presumed to have been murdered. In prison since 1995, and always claiming to be innocent, the defendant was now seeking to undo his conviction based on new evidence which was not available at the time of his original prosecution. The legal question in his request for post-conviction relief was whether there was "a probability that had such evidence been received at trial the verdict would have been more favorable to the defendant.” [That's the language of the governing provision in NY's Criminal Procedure Law (§ 440.10 [1] [g]).]

The new evidence consisted of statements, allegedly made by three men, admitting that they abducted the victim, killed her, and disposed of her body. Additionally, there was testimony by several witnesses to these incriminating statements. There also were some documents consistent with the guilt of the three men and the innocence of the defendant.

Beyond all that, as stressed in the dissenting opinion, the prosecution's

trial evidence was not overwhelming. No physical or testimonial evidence at trial placed defendant at the [scene] at the time the victim disappeared, and no forensic evidence was found...linking defendant to the victim.

Nevertheless, the unsigned, bare-majority memorandum disparaged the new evidence as "uncorroborated hearsay." It stated that the county court was "within its discretion" to reject the claim for post-conviction relief. In the view of the 3 dissenters, however,

It is difficult to imagine these statements [of the three men and the corroborating testimony] would not have 'added a little more doubt to the jury’s view of the evidence,' such that there would have been enough uncertainty as to defendant’s guilt.” [Quoting a 2015 precedent of the Court.]

The specific point here is not about whether the majority or the dissenters got it right. Yes, it is certainly noteworthy that a majority of the Court, for the second time in this one decision day, saw fit to deny relief to a defendant whose claim of actual innocence had substantial support in the record. Many, including myself, find this dismaying. But that's a discussion for another time.

The particular point here is that the majority in Thibodeau saw fit to dismiss the strenuous protestations of their three dissenting colleagues--just one vote less than the majority--without the dignity of a signed opinion.

There is a "company line" about these memoranda decisions that has been repeatedly proffered over the years by former and current members of the Court. That semi-official explanation is that these unsigned writings are used in cases where the issues are already well-settled or readily resolved or otherwise insignificant.

Several years ago, my criticism of the frequency and typical inadequacy of such unsigned opinions at that time triggered a public rebuke, by a then-sitting member of the Court. Not surprisingly, that Judge insisted that these unsigned memorandum decisions were confined to cases involving nothing new or controversial or significant. Of course, as I responded then and repeat now, that excuse can hardly be taken seriously when unsigned opinions are used even where the Judges disagree about the resolution of the issue--especially when the division within the Court is deep and the issue intensely debated. A fortiori when the issue is a constitutional one or otherwise extremely consequential.

Indeed, it is especially hard to take that company line about unsigned memorandum decisions seriously when, as in Thibodeau, a substantial claim of actual innocence is at stake, where the Court is divided 4 to 3, and where the dissenters presented their position in a comprehensive, passionate, 30 page opinion. Surely, such a dissent deserved a fuller and signed elaboration of the majority's reasons why the dissenters were wrong.

In the month of June alone, there were 7 such unsigned memorandum opinions in non-unanimous decisions--i.e., where at least 1 of the Judges disagreed with the majority strongly enough and viewed the issue as significant enough to author a dissent. And lest there be any misconception, these unsigned writings are not the handiwork of just one side of the Court's ideological aisle. They are not always pro-prosecution.

For example, in People v. Morrison, decided the same month (June 28), the 4-3 majority, in an unsigned memorandum, reversed a rape conviction on the basis of a trial error which, the majority ruled, did not require any showing of any actual prejudice to the defendant. That triggered a concise dissent by Chief Judge DiFiore. She was joined by Judge Garcia who penned his own forceful 30 page dissenting opinion, which was joined in turn by Judge Feinman. Five conclusory, unsigned paragraphs by the majority hardly seems to have been adequate.

With few exceptions, cases that reach the Court of Appeals are sufficiently significant and close that their resolution deserves the fullest justification and explanation. These unsigned memoranda opinions rarely provide that. This is especially unfortunate when a dissenting opinion raises important questions. Indeed, it's often no wonder why the author of the unsigned majority opinion would choose not to take credit.

Others who follow the Court of Appeals are noticing as well. Among them, the eminent litigator Paul Shechtman recently commented that, "30 decisions [in criminal appeals over the past year] were decided by memorandum opinion; no judge signed his or her name to the decision." (Criminal Cases Faced an Often Divided Court This Term, NYLJ, Aug. 18, 2018.)

To put it plainly, the prolific use of these unsigned memorandum opinions is unworthy of a fine Court.

NYCOA: June 14 Hand Downs--Dissents, Disappointments, and Open Questions (Part 1: Actual Innocence)

As readers of New York Court Watcher are well aware, as are those who have attended my lectures or heard me on the air, I have the highest regard for the New York Court of Appeals as an institution and for the Judges who serve on it. Indeed, I've made clear my view--just as I did many years ago at the end of my Supreme Court Fellowship to an august audience that included Chief Justice Rehnquist--that I revere the Court of Appeals at least as much as I do the nation's high court.

But--and you knew that was coming--I have not hesitated to be candid in discussing Court of Appeals decisions, in analyzing the individual Judges' opinions and votes, or in being critical when I thought criticism was warranted. Well, the collection of decisions handed down by the Court last Thursday, June 14, cries out for some critique. (The decision list and decisions themselves are accessible on the Court's website here: http://www.nycourts.gov/ctapps/Decisions/2018/Jun18/Jun18.html.)

Dissents
The Court of Appeals issued eight decisions that day. Six of those eight drew dissenting opinions. (I'm including those substantive concurring opinions that disagreed with the rule of law announced or how applied by the majority.)

Now there is nothing necessarily wrong with so many dissents. Yes, there are those who prefer the Court to speak with one voice, to reach a consensus in order to avoid open division. But there are others, myself included, who welcome dissenting opinions. Those opinions usually improve the Court's decision by making arguments or raising questions that must then be addressed by the majority. The result is almost always a much sharper decision and a much clearer precedent for lower courts and lawyers to follow. (And, admittedly, for law profs and commentators to critique.)

Nevertheless, there is another side to the salutary aspects of dissenting opinions. It is the occasional disappointment or even dismay with the majority opinions that they oppose. These are the majority opinions and, thus, decisions of the Court that are either wrong on the law or, perhaps worse, simply but terribly unjust. At least one of the June 14 decisions seems to fall into that category.

Disappointments
In People v. Tiger, over a two-Judge dissent, the majority held that actual innocence is not a basis for challenging a guilty plea conviction under New York law. It's not that the statute in question (CPL 440.10) actually says that. Or that the statute cannot be interpreted to allow an actual innocence challenge. No, the majority chose to adopt that interpretation. (Usually, cases that get to high courts such as the NYCOA or the Supreme Court do have legitimate arguments for both sides--that's why those cases are there to be settled. Indeed, the two dissenters in this case certainly believed that the statute could and should be interpreted to allow actual innocence challenges.)

So why did the Court choose to reject the availability of an actual innocence challenge? Strangely--and this is cause for at least as much concern as the Court's decision itself--the majority relied in large measure on Supreme Court precedents. Why is that strange? Consider that the Court of Appeals majority in this case relied on the federal Supreme Court's interpretations of federal protections to decide the New York high court's interpretation of a New York statute's totally independent protections. The Supreme Court's precedents were absolutely no authority for the New York law question before the New York Court of Appeals.

Beyond that, the federal Supreme Court decision most cited--five times between the majority and concurring opinions--was an unfortunate, if not a dreadful one. In that 1993 decision, Herrera v Collins, the majority of Supreme Court held that the federal Constitution did not require courts to consider actual innocence challenges to a conviction. And that Court's 6-3 majority was made possible only by the votes of Justices Scalia and Thomas who, in their own concurring opinion, insisted that the Constitution does not prohibit the conviction or even execution of an innocent person, as long as proper procedures were otherwise followed.

That's right. That was the basis for two votes that made the majority possible in the Supreme Court's Herrera decision that the Court of Appeals majority relied on with approval. Indeed, the majority opinion itself in Herrera, authored by Chief Justice Rehnquist, declined to reject Scalia and Thomas's proposition.
(Instead, Rehnquist's opinion "assume[d]" the opposite "for the sake of argument," solely to assess the defendant's new evidence as unpersuasive. Three other members of the majority--Justices White, O'Connor, and Kennedy--did make clear in their concurring opinions that they believed it would be unconstitutional to execute an innocent person; but they were unpersuaded by the defendant's evidence that he was innocent.)

In the wake of Herrera, the Supreme Court has yet to rule that convicting and executing an innocent person is unconstitutional. Why would the New York Court of Appeals ever rely on that Court's case law on the actual innocence issue?

There's more. The Court of Appeals majority in People v. Tiger rejected the availability of an actual innocence challenge in a case in which the defendant might well have been actually innocent! The two dissenters--Judges Wilson and Rivera--in fact declare unequivocally that the defendant is innocent.

Moreover, the dissenters' assertion is corroborated by the result of a lawsuit instituted against the defendant. The civil jury in that lawsuit found that the defendant did not in fact commit the wrongdoing that was the basis for the guilty plea conviction. Consider that the civil jury, of course, only had to find by a preponderance of the evidence--not beyond a reasonable doubt--that the defendant was guilty of the wrongdoing. And still, that civil jury determined the defendant to be innocent.

So why then did the defendant plead guilty? As the dissenters, as well as countless studies and examinations of guilty pleas have found, there are many reasons why defendants plead guilty. Actual guilt is not necessarily one of them. In fact, innocent persons often plead guilty.

In this case, for example, as the dissenters point out, the defendant faced the possibility of seven years imprisonment if she went to trial. So "she pleaded guilty after her lawyer told her she could not afford to hire an expert and a guilty plea could result in a suspended sentence"--in fact, pleading guilty did result in a much lighter sentence than the possible seven years. And then, to repeat what has already been said, a civil jury found that the defendant was not guilty, even though that jury was aware of the defendant's own statements in the guilty plea proceedings.

Regardless of the admiration I have for the Court of Appeals and its members--and maybe because of that--I am struck by how flawed and unjust the decision is in People v. Tiger. This was not a fine Court's finest hour.

In the next part, we'll look at another significant aspect of that June 14 set of decisions.