CRIMINAL LEAVE IN THE COURT OF APPEALS A CASE OF IMPLICIT BIAS?

• Author: Pigott, Jr., Eugene F.

On October 16, 2019, I delivered a lecture at the Albany Law School as part of the Hugh Jones Lecture Series. (1) In responding to the invitation to deliver this lecture, I contemplated two things: a topic of general interest, at least to the legal community, and one in which I could bring a modicum of unique experience. The topic, therefore, became Criminal Leaves to Appeal to the Court of Appeals of the State of New York. Below, in sum and substance, is my lecture. I have added a thought on how the current procedure may impact the way others may view the Court.

My point of view comes from twenty-five years as a trial lawyer, both civil and criminal; service on the board of trustees of the Legal Aid Society of Buffalo and Erie County, including a term as its president; and a judicial career that included time as a trial judge, associate justice of the Appellate Division, Fourth Department, Presiding Justice of that court, and ten years as an associate judge of the Court of Appeals. (2)

As a trial lawyer in a criminal case, one's duty and, therefore, point of view differs markedly from that of a judge. Applying one's knowledge and skill for the benefit of a single defendant who may be facing substantial time in prison is considerably different, and much more pressuring, than that of a judge who comes to the conflict with no prior commitment to any particular outcome.

That is not to say that the task of the judge is easier. A judge must consider the merits of a case, sometimes in the context of vastly different lawyering skills and preparation; confusing and differing testimony; and the application of appropriate law--whether or not provided by the legal combatants. In the criminal context, unlike the civil, substantial liberty interests are often at stake.

Bringing this experience to bear, I offer the following thoughts about the handling of leaves to appeal to the Court of Appeals from our intermediate appellate courts. Ultimately, my view is that the process for seeking review by the state's highest court should be the same for civil and criminal cases. It may come as a surprise to the uninitiated that while civil cases receive the full panoply of process due a case or controversy, (3) criminal cases receive no such care. (4) Leave to appeal in criminal case is relegated to a fast food style of justice that, in my view and experience, can and almost certainly has led to injustice. I suspect this has been so on more than one occasion.

1. THE PROCESS

   A criminal defendant, once convicted and sentenced, has an automatic right to appeal to the Appellate Division, New York's intermediate appellate court, in the Department of appropriate geographic jurisdiction. (5) The appeal, being of right, cannot be denied.

   On the other hand, an appeal to the Court of Appeals requires a "certificate granting leave" and, except in rare instances, must come from one--and only one--of the judges of the Court. (6) The process calls for a letter seeking leave to appeal and the reasons it should be granted. (7) This Criminal Leave Application ("CLA") goes to the Chief Judge. (8) In a ministerial act, the Chief Judge distributes these applications randomly and in equal numbers among the members of the Court. (9)

   The Court typically receives between 2,100 and 2,400 CLAs annually. (10) This means that each of the Court's seven judges typically receives in excess of 300 CLAs in the course of a year. (11) In each of those CLAs, the one judge to whom the application is distributed decides alone whether to grant or to deny an applicant the opportunity to appeal to the state's highest court. (12)

   In a comprehensive article published in the Albany Law Review in April 2010, attorney Alan J. Pierce, a former law clerk at the Court of Appeals to Judge Richard D. Simons, (13) made the case for changing the CLA procedure. (14) He pointed out that:

   * New York is one of only four states (the others being Rhode Island, New Hampshire and Virginia) that allow a single judge to decide whether to grant or deny leave in criminal cases; and the only one of the seven most populous states to permit this practice. (15)

   * As early as 1982, the American Judicature Society, in a study known as the MacCrate Commission Report, recommended that CLAs be treated in the same fashion as civil appeals. (16)

   * The New York State Bar Association's (NYSBA) Committee on Appellate Courts endorsed the MacCrate Commission's recommendation. (17)

   * The NYSBA's Criminal Justice Section also endorsed that recommendation. (18)

   * The Association of the Bar of New York City likewise supported the recommendation. (19)

   The procedure of a single judge alone determining the fate of a particular CLA has faced additional criticism including:

   * The judge deciding the CLA may or may not choose to permit oral argument in chambers. (20)

   * The inconvenience or distance of the judge's chambers oftentimes affects the manner in which an application is heard, in person or remotely. (21)

   The foregoing, among other factors, creates a lack of uniformity, both in processing and very likely in the results as well. (22)

2. THE NUMBERS

   In a series of studies, Professor Vincent Bonventre of Albany Law School, an expert on the Court of Appeals and former law clerk at the Court of Appeals to Judges Matthew J. Jasen and Stewart F. Hancock, Jr., (23) has, on several occasions, tracked the frequency of CLA grants and denials and questioned the efficacy and fairness of the current procedure. (24) For example, in 2019, on his New York Court Watcher blog, (25) Professor Bonventre...