WHEN THE CHIEF WRITES: AN EXAMINATION OF CHIEF JUDGE JANET DIFIORE'S OPINIONS.

• Author: Tiner, Emma L.
• Position: New York Court of Appeals

When Janet DiFiore took the Oath of Office at her formal investiture ceremony as Chief Judge of the New York Court of Appeals, she was wearing a particular robe. (1)

The date was February 8, 2016; the robe belonged to a former chief judge who had died only a month and a day earlier. (2)

Judge Judith S. Kaye, the first woman to serve as Chief Judge of the New York Court of Appeals, was remembered for her efforts toward unanimity on the Court, seeking mainstream consensus. (3) In contrast, the second woman to serve as Chief Judge had every part of a legacy left to shape, since she was only at the beginning of her time on the Court. Of her only female predecessor, DiFiore said: "Thanks to her single-minded determination and passion for justice, she was remarkably successful in pursuit of these worthy goals. She leaves behind a legacy of judicial leadership, reform, and public service that will inspire successors for generations to come." (4)

At the time of her nomination, Judge DiFiore's court was largely composed of new appointments. (5) Naturally, therefore, the two years of her tenure on the Court have provided the first cases with which to craft analysis of the perspectives of this fresh-faced court and of her jurisprudential leadership in particular.

Following a brief introduction regarding her rise to the role of Chief Judge, this article will examine Chief Judge DiFiore as a writer, with an especial focus on her criminal opinions. Between 2016 and 2017, the Chief Judge penned thirty-three opinions--thirty-one of which were for the majority. (6)

1. BEFORE THE COURT

   DiFiore brought both judicial and prosecutorial experience to the Court. After graduating from St. John's University School of Law, she was an assistant district attorney in Westchester County, heading their narcotics bureau for a time. (7) Beginning in 1998, she served as a county court judge and later a State Supreme Court justice; she was also the chairwoman of Albany's primary ethics panel, the Joint Commission on Public Ethics. (8)

   Arguably her most notable role was her stint as District Attorney for Westchester County. (9) She was elected in 2005 and has been praised for using her authority to crack down on wrongful convictions. (10) Perhaps the greatest example of this was her decision to cooperate with the Innocence Project in reinvestigating the conviction of Jeffrey Mark Deskovic, who served sixteen years in prison for a rape and murder he did not commit. (11) Deskovic himself, however, did not support her nomination for chief judgeship; he believed that despite her efforts in his own case, she had failed to accomplish meaningful reforms overall. (12)

   Intriguingly, DiFiore's political alignment is somewhat bipartisan: she was a Republican for much of her life, becoming a member of the Democrat party in the mid-2000s. (13) When Governor Andrew Cuomo, who had previously appointed her to gubernatorial commissions, nominated her for the position of Chief Judge, he spoke glowingly of DiFiore's character. (14) The Governor said that "[h]er commitment to the highest ethical standards makes her one of New York's finest public servants." (15)

2. THE FIRST TWO YEARS: A REPORT

   Through 2016 and 2017, Judge DiFiore authored thirty-three opinions, seventeen of which were in criminal cases, (16) and sixteen of which were in civil cases. (17) Only two of the thirty-three saw DiFiore breaking from the majority, with one concurring opinion and one dissent. (18)

   Before reporting on the substance of any of these decisions, it is important to note the random method by which cases are assigned to the Court of Appeals' judges. Decades ago, former New York Governor Mario Cuomo described the process as a "quaint but efficient one," in which the judges "draw[]" cases in a random numerical order: this order then passes cases to judges according to seniority. (19) Since the random nature of this process remains largely in place today, (20) not even New York's Chief Judge has a free choice of what cases she will or will not author. However, a cross-section of opinions can still provide insight into a judge's priorities and overall jurisprudence.

   1. Majority Opinions

      1. Criminal

         In twelve out of the sixteen criminal opinions which Chief Judge DiFiore wrote for the Court, she voted against the defendant. (21) In ten of those twelve cases, she led the Court in affirming Appellate Division findings that there had been no violation of a defendant's rights, or that there had been no abuse of discretion at the trial court level. (22)

         The remaining cases were slightly more complicated. For example, in People v. Davis, a 2016 case involving murder convictions stemming from a home invasion, the Court modified the order of the Appellate Division, Fourth Department, reinstating the murder convictions that had accompanied convictions for robbery and burglary. (23) The Fourth Department had partially reversed a jury conviction on the grounds "that the People failed to prove beyond a reasonable doubt that it was reasonably foreseeable that defendant's actions, i.e., unlawfully entering the victim's apartment and assaulting him, would cause the victim's death." (24) Writing for the Court, DiFiore disagreed, finding that the victim's underlying heart condition, combined with the violent nature of the defendant's actions in commission of the robbery and burglary (specifically, breaking the victim's jaw, and leaving the victim lying in a blood-spattered room) served as sufficient evidence of the foreseeability of the victim's death. (25)

         The Court combined People v. Smith and People v. Ramsey in a single opinion. (26) Although the Court affirmed in Ramsey and reversed in Smith, both holdings were against defendants, since the Court concluded in both cases that the defendants had failed to meet the procedural requirements for taking an appeal. (27) Similarly, in People v. Flores, the Court denied jurisdiction to the Appellate Division because of a procedural failure on defendant's part, even though, in that case, the Court expressly dictated that the (county) court retained discretion to grant an extension that would allow the defendant to correct her error in filing an appeal. (28)

         Regarding the four cases in which she (and the Court) ruled for the defendant, all but one involved what DiFiore described as the violation of defendants' Sixth Amendment rights (29) (under the federal constitution)--specifically, the right to confrontation of adverse witnesses (30) and the right to a fair trial. (31) Interestingly, all three of these cases predicate trial rights on the basis of federal, rather than state-centric, protections and case law. (32)

         The sole outlier, People v. Clarke, addressed the issue of a speedy trial but predicated the issue--whether the government was responsible for a delay in DNA testing--on state precedents. (33) DiFiore and the rest of the Court held that the Appellate Division had rightly charged the government with failure to exercise due diligence. (34)

         i. Patterns of Judgment

         The body of these cases, regardless of outcome, have reflected Chief Judge DiFiore's combined experience and expertise as both a prosecutor and a trial judge. Her writing demonstrates respect for judicial discretion and close attention to legal...