|John Marshall Harlan
Dissented in Plessy
A strong dissenting opinion is something to celebrate. (See e.g., discussion in Part 4a.)
But, of course, it is often reason for considerable disappointment that it was not the court’s majority.
|Oliver Wendell Holmes
“The Great Dissenter”
Indeed, sometimes there is cause for outright dismay, exasperation, and bewilderment that the majority failed to embrace the dissent’s wisdom, fairness, candor, or other emphatic virtue.
A few recent dissenting opinions at New York’s highest court fall into that category.
To be sure, such a phenomenon is neither unique to nor characteristic of the current Court of Appeals. It is not difficult to identify examples of the same among the decisions of virtually any court at virtually any time. Judges are fallible like the rest of us. Biased, obstinate, foolish, and for other reasons clearly wrong sometimes. Just like the rest of the human species.
But to place a positive note on this present discussion, let’s focus on the wisdom, fairness, candor, and levelheaded common sense of dissents that demonstrate an admirable refusal to acquiesce in a lamentable decision by the majority. There have been several such dissents at the Court of Appeals recently. A few illustrative ones in criminal cases seem quite compelling.
(It turns out that, in two of my examples, the dissents argued in favor of the prosecution; in two others, in favor of the accused. That was not deliberate.)
In two of the cases, the majority reversed convictions based on a technical error of the trial judge. In neither case was there any indication of any prejudice to the defendant. Nor any indication that the defendant’s lawyer thought so–or even thought there was an error. Nor any indication that the defendant might not be guilty. Nevertheless, the entirely reliable convictions were overturned by the application of a categorical rule for which the majority allowed no exception.
(I confess that I have long viewed the per se reversal rule in question to be absurd and in some applications outrageous.)
In two other cases, the majority upheld convictions. They did so despite strong indications that the defendants might actually be innocent. In each of those cases, the prosecution’s case was weak. The evidence of guilt was questionable. And that evidence was contradicted by subsequent discoveries and other evidence that was not previously considered. Nevertheless, the Court’s majority refused to allow bona fide challenges to the very possibly wrongful convictions.
Let’s start with the first two cases and the corresponding dissenting opinions.
People v. Parker (1918) (DiFiore, C.J., dissenting)
People v. Morrison (1918) (Garcia, J., dissenting)
In both Parker and Morrisson, the deliberating juries sent notes to the trial judges seeking clarifications. Because the judges in those cases did not place some of the discussions with defense counsel about the contents of the notes on the record, the Court of Appeals majority reversed the ensuing convictions. According to the majority, these were merely applications of the Court’s 1991 decision in People v. O’Rama.
The majority in both cases did so even though the trial records indicated that there were discussions about the notes. Even though the defense counsel never complained that the discussions were not placed on the record. (In legal terms, therefore, no objection to an error was “preserved.”) Even though there were no claims that the defendants were harmed in any way by the trial judges’ failure to place the discussions on the record. Even though neither these record failures nor anything else suggested that the defendants were wrongfully convicted.
No, the convictions were reversed in both cases because of the rule that the discussions of the substance of jury notes must be placed on the record. And more to the point, because of the majority’s inflexible insistence that a trial judge’s failure to do so unqualifiedly mandates the reversal of a conviction–whether or not there is even a suggestion that the defendant is harmed, and whether or not the defendant or counsel ever raised a concern about the matter.
In Parker, the Court, by a 4-3 vote, applied its categorical O’Rama rule to reverse the robbery convictions of two defendants. In her dissenting opinion, Chief Judge Janet DiFiore protested the majority’s rigid per-se reversal rule as not being required by O’Rama, and as unnecessarily overturning convictions without regard for the realities of actual trial proceedings or for the facts of the specific case:
[T]his Court today…requires the reversal of a conviction — purportedly for an error that impacts the essential validity of the trial — based on the technical defect of failing to make an adequate record (CPL 470.05 ). The rule operates without regard to the specific facts of whether counsel actually received meaningful notice of the content of the jury note. Where, as here…the record demonstrates there was an off the record discussion of the jury notes[,] we have no reason to presume that a fundamental flaw in the trial process occurred.
The application of the majority’s per se reversal rule on this record ignores the realities commonly attending the trial process and, ironically, finds error in what may only be the court’s failure to record the absence of error.
It should be noted that, counsel for appellants have not… represented to th[is] Court that trial counsel did not receive notice of the contents of [the] notes…Rather, the only argument advanced in our appeal relates to whether the record evidences such notice. This argument is in keeping with the majority’s per se rule, which allows counsel who receives meaningful notice of the content of a jury note “to sit idly by while error is committed” and then argue that the record does not reflect such error.
In Morrison, decided the same day in another 4-3 vote, the Court again applied its unqualified O’Rama rule to overturn a rape conviction, again despite ambiguity in the record and despite no complaint by defense counsel at trial or throughout the first round of appeals. In his dissenting opinion, Judge Michael Garcia called for the abandonment of the per se, no-preservation-required O’Rama rule as contrary to basic common sense:
Today, the Court reverses defendant’s conviction…based solely on an unpreserved claim. The majority forgives defendant’s failure to preserve his challenge by relying on a record-making deficiency—the trial court declined to read a jury note into the record—even though defense counsel was aware of the note at issue and was informed that the trial court would not read the note aloud. The record also supplies reason to believe that defense counsel received the note and read its contents.
Rather than simply asking for the contents of the note, or lodging any form of an objection, defendants in these circumstances are better off—under this Court’s precedent—remaining silent and hoping for an acquittal; in the event of an unfavorable verdict, their claim will secure an automatic reversal on appeal…The sweeping rule of O’Rama should no longer bind us.
In this case, for instance, defendant failed to object to the trial court’s handling of [the] jury note…He also failed to raise his jury note claim in his first appeal to the Appellate Division. And apparently, he failed to raise it in his first application for leave to appeal to this Court. Defendant first raised his jury note claim in a coram nobis application eight years after his trial.
Once again, the majority prefers to wait for a legislative fix for a problem of the Court’s own making [i.e., its expanded application of People v. O’Rama]. Until then, the hard lessons continue.