Albany Times Union: Criminal case decisions are rarely published. Researchers want that changed.

ALBANY — Many decisions in criminal cases in New York’s trial courts are not easily accessible to the public, despite a longstanding law that requires judges to report their rulings to the state Office of Court Administration, researchers found in a new study. 

The arguable lack of transparency is exacerbated by the lack of a uniform system for accessing records from criminal cases in online platforms. Many counties have made records in civil case dockets available online, but not those in criminal cases.

The study found lower-court judges apparently only submit their decisions to the Office of Court Administration for review in roughly 6 percent of criminal cases. The data “reveals a transparency problem of staggering proportions,” according to the study that is set to be published by the court watcher group Scrutinize and the good-government organization Reinvent Albany. 

“There is no accountability without transparency, so the first step has to be more transparency into the individual decision-making process of judges,” said Oded Oren, founder of Scrutinize and a former public defender. 

State Senate Deputy Majority Leader Michael Gianaris said he is considering introducing legislation that would require the state’s court system to make decisions in criminal cases more publicly accessible as he seeks to improve transparency, better understand the records of judges, and scrutinize how the Legislature’s criminal justice policies are being interpreted.

“The public has a right to know what’s going on in their courthouses,” Gianaris said in an interview.

Gianaris said he is working with the researchers and is in discussions with the Office of Court Administration to find a way to introduce workable legislation. 

“We’ve all gotten a lot more educated about the opacity of the court system in the last couple of years,” Gianaris said, pointing to a round of contentious judicial nominations this year for the Court of Appeals. “I was surprised at how difficult it is to get information about judges' records and their history of making decisions.”

The researchers noted that even in high-profile criminal cases in New York — such as those involving former President Donald J. Trump or film producer Harvey Weinstein — little to no decisions or motions are posted on the state’s publicly accessible website. But that's a trend across the state, where most records in criminal cases are not easily accessible through online platforms, including the websites of clerks for county and state supreme courts.

The researchers are seeking a law that would require online access to all decisions, including when judges resolve a legal issue tied to a written motion. Existing law requires the publicizing of decisions issued by appellate divisions and the Court of Appeals, the state’s highest court. 

While a 1938 judiciary law requires judges of all courts to submit their decisions to the Office of Court Administration for consideration of publication, the researchers noted that it rarely happens.

“No one complies with that rule,” state Supreme Court Justice Gerald Lebovits said in a New York State Bar Associate Law journal article in 2005. “Judges submit to the (Law Reporting Bureau) only those opinions they hope to publish.”

Lebovits, an adjunct professor at Columbia Law School, is the president of the state Association of Acting Supreme Court Justices. 

The result, the researchers said, is a system in which the public’s ability to scrutinize a judge’s record or examine how they make decisions is severely hampered. 

“Assessment of a judge’s record and quality of work may be biased, as their published body of work may not reflect their true jurisprudence and legal acumen,” the report said. Judges who submit their decisions rarely do so more than a couple of times per year, according to the study. 

In recent years, just over 300 criminal court decisions are published annually, split between New York City and the rest of the state; about 181,000 criminal cases are arraigned each year. While most cases are quickly dismissed or a plea agreement is reached, in proceedings involving thousands of serious violent felonies the decisions remain unpublished. 

Researchers were unable to pinpoint the number of written criminal court decisions because the Office of Court Administration told them it does not track that data. 

“We don’t need to be stuck in a process that is from the 1930s,” said Rachael Fauss, senior policy advisor for Reinvent Albany. “We need to be thinking about in 2023 we can be making government more accessible and transparent.”

State lawmakers have spent recent years going back and forth with the Office of Court Administration over implementation of its criminal justice polices on bail, pre-trial discovery and the adjudication of youth cases in Family Court. Hearings, at times, have been contentious. Advisory memos issued by the court system on the implementation of policies, like the state’s retooled bail laws, are generally not made public. 

New Court of Appeals Chief Judge Rowan D. Wilson has pledged to increase transparency and trust in the court system under his administration. Gianaris, who supported Wilson’s confirmation after a bitter fight over the appointment of that position this year, said it is “very refreshing to have the administration there that seems to be acting as a partner instead of an adversary.”

A bill sponsored by Gianaris with the intent of increasing transparency in the court system by requiring lobbying to be reported on court nominations passed both houses earlier this year. It is one of the remaining pieces of legislation Gov. Kathy Hochul has yet to take up before her deadline to act on the bill by the end of the year.

To read the full story at the Times Union, click here.