The charade of appellate review

“He’s a good man,” argued the Guv, defending her pick for Chief Judge – a veiled reference to the last one, who suddenly resigned amidst ethical inquiries. Besides, he’s “of color,” so what’s the problem?

A bevy of law profs disagreed. Citing three Appellate Division decisions where Judge LaSalle was on the judicial panel, they accused him of “a cavalier attitude towards reproductive rights,” “hostility to organized labor,” and “a worrying insensitivity to due process.” According to the professors, LaSalle had “intervened” on behalf of Crisis Pregnancy Centers” [shady anti-abortion outfits], “empowered management to harass Labor,” and “rode roughshod over due process twice-over.” Heavens to Betsy, why isn’t the man in jail?

Judge Andrias (ret.) to the rescue. That’s not what those decisions say, he retorted, not incorrectly. Besides, if you want to know LaSalle’s judicial philosophy, read the decisions he actually authored, not some “puny memorandum decision.”

Andrias should have stopped there. But instead, he went on to proclaim that most decisions aren’t written by judges at all, but by clerks who write bench memos. “The justices often modify these offerings with minor revisions or ‘tweaks,'” he explains. But “the reality” is that judges face such a “crushing load” of cases that “if a detailed and painstaking reasoned decision was required for each appeal, the entire appellate structure would come to a grinding halt.” 

We think this demonstrates a worrying insensitivity to the meaning of appellate review.

Another name for these non-painstaking decisions is “automatic affirmance.” The “reality” is that the majority of criminal and SORA appeals are decided by these unnamed, unaccountable clerks who, to keep the appellate structure from grinding to a halt, read only the People’s brief. And since they’ve already drafted the affirmance, oral argument amounts to a rigged quiz show, only more boring.

What can you do about it? File a motion to reargue that will be indignantly denied by the same clerk who wrote the non-painstaking affirmance?

Explain to the Court of Appeals that the Appellate Division’s puny memorandum decision is wrong? Good luck with that.

Criminal defense attorneys can be terribly courageous in opposing Evil, Racism, Trump, and the hammerheaded shark. But it takes more guts to speak up against this deadly culture of automatic affirmance. The large number of appeals is no excuse. What if air traffic controllers spared themselves the crushing load of too many planes by allowing most of them to crash? If the load of appeals is so crushing, it’s not our clients who should be crushed.