Pennsylvania Supreme Court: the more things change, the more they stay the same.

• Author: Barr, James W.

1. INTRODUCTION

   The Pennsylvania Supreme Court turned Republican in 2002. When former Chief Justice John P. Flaherty (D) retired at the end of 2001 and Justice J. Michael Eakin (R) was elected to replace him, the court saw its first Republican majority in three decades. (1) The question of the day was this: would Justice Eakin and the new Republican majority "swing the now-moderate court in a more conservative direction?" (2) This question reflects common partisan stereotypes, which in the context of an appellate court amount to this: Democratic justices are bound to be "liberal," to interpret a constitution as giving broad protection to individuals, and to vote frequently against the prosecution in criminal appeals; Republican justices are bound to be "conservative," to interpret constitutional protections more narrowly, and to vote frequently in favor of the prosecution in criminal appeals. In order to avoid broad stereotypes that may not strictly hold, this study reframes the previous question thus: What effect did the election of Justice Eakin and the resulting Republican majority have on the percentage of criminal appeals decided in favor of the prosecution? This question will be discussed and answered in Part IV.

   Two more questions remain to be asked and answered. The Republicans still held a 4-3 majority on the court in 2006, but the winds of change are blowing. The now-empty seat of the recently-retired Justice Sandra Schultz Newman (R) must be filled in Pennsylvania's fall 2007 judicial election. (3) The seat of Justice Cynthia Baldwin (D), a temporary replacement for the ousted Russell M. Nigro, must also be filled. (4) Also in 2007, Justice Thomas G. Saylor (R) faces a retention vote, the results of which are far from certain. (5) It is quite possible that the Democrats could regain a majority on the court as early as 2008. If that were to happen, what would likely be the effect on the percentage of criminal appeals decided in favor of the prosecution? This question will be discussed and answered in Part V.

   Laying a foundation for the third and final question requires revealing the answers to the first two questions; if the reader does not want to spoil the surprise, now would be a good time to skip ahead to the next paragraph. In a nutshell, the Pennsylvania Supreme Court since 2001 has consistently decided in favor of the prosecution at a rate of about 75%, even in 2001 under the so-called "moderate" court of former Chief Justice Flaherty. And the court will likely continue to decide in favor of the prosecution at a similar rate even if the Democrats regain a majority of seats on the bench. In light of these conditions, how can a defense attorney possibly beat the odds and improve his or her chances of winning a criminal appeal? This question will be discussed and answered in Part VI.

   Part II describes the general methodology employed in this study, the scope of the study, and some limitations to keep in mind while considering the analyses presented herein. Part III presents background information about the court. Part VII concludes the study. Appendix A contains tables relevant to the study and Appendix B contains interesting information not essential to the main part of the study.

2. GENERAL METHODOLOGY, SCOPE, AND LIMITATIONS

   Answering any of the questions outlined above requires knowing the voting tendencies of each individual justice on the court. Does Justice X tend to vote in favor of the prosecution more often than for the defense? If so, how much more often? Which justices seem to influence their peers more than others? Who is really driving this ship?

   On a more practical level, how can one discover the true voting tendencies of any given justice? This study's methodology flows from one basic premise: separate opinions, i.e., dissents and concurrences, provide much greater insight into the mind of a justice than unanimous opinions provide. (6) The reason for this is that unanimous opinions "often reflect compromises by individual members of the court rather than true unanimity." (7) Thus, the best way to "delve into individual judicial philosophies" and to learn a justice's "unique values and beliefs" is to analyze the justice's separate opinions. (8)

   Based on this premise, I identified 141 published, criminal cases containing at least one dissenting opinion, (9) decided between January 1, 2001 and October 17, 2006. For each opinion, I charted whether the court decided for the prosecution or the defense, as well as which justice wrote the main opinion, which justices joined the main opinion, which justice(s) wrote a separate opinion, and which justice(s) joined each separate opinion. (10) I then analyzed the data using sophisticated queries in a custom-built relational database to answer the questions outlined above.

   This analysis is, however, subject to some limitations. First, the actual substance of each opinion was not considered. The substantive issues underlying each justice's pro-prosecution or pro-defense voting habits are beyond the scope of this study.

   Second, in cases where the winner of the case was mixed, (11) that is, the defense won on one issue and the prosecution won on another, or the winner was not readily apparent, (12) no further effort was made to determine whether the justices had voted for the prosecution or for the defense. Still, there are more than enough cases with readily-apparent winners to reveal the voting habits of each justice. The few cases that were excluded for the purpose of learning the justices' pro-prosecution or pro-defense voting habits were still useful in learning who tended to join with whom in the main opinions, the concurrences, and the dissents.

   The next limitation applies only to data gathered for the year 2006. Only seven cases meeting the study's criteria had been decided at the time data collection was complete. As a result, any trends seen in the early part of 2006 should not be assumed to project through to the end of 2006.

   The final limitation is that I did not use advanced statistical techniques to analyze the data. Rather, I used simple arithmetic to examine general trends in the data. Any further information regarding methodology, scope, or limitations will be discussed in the section to which such information is relevant.

3. BACKGROUND INFORMATION ABOUT THE PENNSYLVANIA SUPREME COURT

   The Pennsylvania Supreme Court is the highest state court in Pennsylvania. (13) The court has original but not exclusive jurisdiction in all cases of "habeas corpus," "mandamus or prohibition to courts of inferior jurisdiction," and "[q]uo warranto (14) as to any officer of Statewide jurisdiction." (15) The court has mandatory jurisdiction in capital criminal cases, (16) inter alia, and has discretionary jurisdiction in civil, noncapital criminal, administrative agency, juvenile, and interlocutory-decision cases. (17) Unless otherwise ordered by the court, argument sessions are to be scheduled for one-week periods during January, March, April, May, September, October, and December, (18) and are normally held in Harrisburg, Philadelphia, and Pittsburgh. (19)

   The court consists of seven justices, including a Chief Justice, sitting en banc. (20) The justice with the longest continuous tenure on the court becomes Chief Justice. (21) Justices are elected to a term of ten years, (22) but they must retire "on the last day of the calendar year in which they reach the age of 70." (23) If a justice reaches the end of the ten-year term, he or she "may file a declaration of candidacy for retention election." (24) If a majority of the electorate votes against retaining the justice, "a vacancy shall exist upon the expiration of his term of office, to be filled by appointment" (25) by the Governor. (26) Perhaps most interestingly, if two or more justices assume office at the same time, they "cast lots" to determine their order of seniority. (27)

4. WHAT EFFECT DID THE ELECTION OF JUSTICE EAKIN AND THE RESULTING REPUBLICAN MAJORITY HAVE ON THE PERCENTAGE OF CRIMINAL APPEALS DECIDED IN FAVOR OF THE PROSECUTION?

   The short answer to this question is "a lot less than you might expect." In 2001, with a Democratic majority, the court decided in favor of the prosecution 73.1% of the time. (28) In 2002, with the new Republican majority in place, the court decided in favor of the prosecution 70.4% of the time--an unexpected drop in the rate of pro-prosecution decisions. The average yearly percentage of cases decided in favor of the prosecution by the Republican majority from 2002 to 2006 was 76.3%--an average increase over the 2001 rate of a meager 3.2%.

   Is this a shocking result? Would you expect a much larger increase in pro-prosecution decisions with the new Republican majority on the bench? Well, it is not too surprising that a court with a 4-3 Republican majority (29) would decide in favor of the prosecution more often than not, so the 76.3% average yearly pro-prosecution rate from 2002 to 2006 seems reasonable. What seems more surprising is that the Democratic majority in 2001 decided in favor of the prosecution in more than seven out of every ten criminal appeals.

   This simple observation proves that justices--at least the justices involved in this study--do not stick strictly to traditional "party lines." In other words, Democrats do not always vote for the individual defendant, and Republicans do not always vote for the prosecuting government. If they did stick strictly to party lines, then a Democratic majority would decide in favor of the defense 100% of the time and a Republican majority would decide in favor of the prosecution 100% of the time because it only takes four of seven votes to decide a case. This is obviously not the case here, and it is hard to imagine that it would be the case anywhere.

   Even if each justice stuck mostly to party lines--say, 75% of the time--one would still not predict the 73.1% pro-prosecution rate produced by the...