Over 100 criminal justice and progressive groups have written a letter to New York Governor Kathy Hochul, asking the Democrat to consider a candidate who has looked out for defendants’ rights when appointing a new chief judge.
Among those who signed the letter are criminal justice advocates, environmental groups, mental health organizations, and tenants’ rights groups. They say the Court of Appeals has become more conservative under outgoing Chief Judge Janet DiFiore.
DiFiore, who is the subject of an ethics probe over whether she interfered in a disciplinary hearing for the head of the state Court Officer’s Association, is leaving at the end of the month.
Hochul now has the opportunity to appoint a replacement, and the groups say her choice should be someone who is committed to using the law to protect society’s most vulnerable people. They say it would bring much-needed diversity to a court that is largely made up of former prosecutors.
DiFiore, who was appointed by former Governor Andrew Cuomo, was formerly the Westchester County district attorney. Cuomo also chose several other former prosecutors to serve on the court.
Katie Schaffer, with the Center for Community Alternatives, says Hochul should choose someone who has worked as a public defender, or as an advocate for civil rights or labor or poverty laws. She says Hochul should not choose another former prosecutor for the role.
“Most importantly, we are looking for a chief judge who is committed to standing up for vulnerable New Yorkers,” said Schaffer. “And who has a history that suggests they can and will do that.”
There is data to back up the progressive groups’ concerns. Albany Law School professor Vin Bonventre, who is an expert on the Court of Appeals, studied the number of cases heard under the DiFiore court. He found that the court accepted far fewer appeals of criminal convictions under her tenure than that of her predecessor, former Chief Judge Jonathan Lippman.
Bonventre says while the Lippman court averaged about 100 cases a year, under DiFiore, the court heard an annual average of just 49 appeals between 2016 and 2021.
“And in those cases, by and large, the court has been deciding them in favor of the prosecution,” Bonventre said. “In fact, very infrequently does the court ever rule in favor of the accused.”
Bonventre says accepting fewer cases means fewer chances to make precedent-setting decisions.
Schaffer says the DiFiore court’s decisions are shorter, and she says some have harmed workers, immigrants, and tenants, and also undermined democratic institutions.
One decision in particular drew the ire of criminal justice groups. In People v. Tiger, decided in 2018, the court found that a defendant cannot challenge their conviction if they entered a guilty plea, even if evidence emerges finding that person to be innocent of the crime.
“And this is in a state where 98 percent of people take guilty pleas,” said Schaffer. “Our system is very much set to encourage, [incentivize], coerce people to take guilty pleas.”
Hochul, asked about the nomination process in July, said she wants to find a judge who is fair, but not someone who comes from a particular background or political ideology.
“I want to get the best jurist I can find in the state of New York,” Hochul said. “Regardless of any predispositions.”
Hochul chooses a nominee from the state’s Commission on Judicial Nomination, which over the next few months will pick up to seven people who would be qualified to replace DiFiore.
Schaffer says the groups have not yet received a response from the governor or her office about their request. But she says the Democratic-led State Senate will have to confirm the governor’s choice. The groups are talking to state senators who are also supportive of having a chief judge who comes from a criminal justice or civil rights background.
