This post considers two categories of Supreme Court reversals of rulings from the court of appeals: reversals of rulings that had favored defendants, and reversals of rulings that had favored the state.[1]  The discussion covers 15 terms (1998/99 through 2012/13), which have provided a total of 316 criminal cases for consideration.[2] 

Overview
The 316 cases include 102 in which the court of appeals (or trial courts) had ruled in favor of defendants.[3]  In most instances, the phrase “ruled in favor of” meant something well short of dismissal of charges.  Defendants commonly requested such things as a new trial (claiming that evidence was obtained improperly, or that they had not received competent legal representation, or that instructions to the jury were flawed, and so forth).  After accepting these 102 cases, the Supreme Court reversed in 77% of them (79/102).

In the remaining 214 cases, the Supreme Court reviewed rulings in which the court of appeals or trial courts had sided with the state by approving the behavior of police and other authorities, rejecting the defendants’ arguments, and upholding their convictions.[4] Here, the Supreme Court reversed in 24% of the cases (52/214).

Change Over Time
The Court assumed its current composition in the 2008-09 term, when Justice Gableman replaced Justice Butler.  During the five terms from 2008-09 through 2012-13, the justices voted as follows regarding the issues outlined above.  They reversed 80% (20/25) of rulings that had favored defendants and 12% (8/68) of rulings that had favored the state. 

See Table 1 for year-by-year figures covering all 15 terms.

Individual Justices
One may also tabulate the votes cast by individual justices in these cases, and the results highlight some striking differences among the members of the Court.[5] 

For instance, a number of justices displayed comparatively small gaps between their reversal percentages in the two categories described above.  Thus Justice Bablitch voted to reverse in 49% of cases where rulings had favored defendants and in 41% of cases where rulings had favored the state.  For Justice Bradley the figures were 45% and 49%; for Justice Abrahamson, 40% and 54%, and for Justice Butler, 53% and 49%.  In contrast, the Court’s three most recent members have been much more inclined to reverse rulings favoring defendants (87%, 90%, and 92% for Justices Roggensack, Ziegler, and Gableman respectively), while very reluctant to reverse decisions favoring the state (13%, 11%, and 9% for the three justices). 

Meanwhile, Justice Sykes generated the most unusual combination of percentages, as she voted to reverse 86% of decisions that had favored defendants—but also voted 34% of the time to reverse decisions that had sided with the state.

Table 2 provides figures for all 12 justices who served on the Court during the period under consideration.

[1] In most instances these rulings were decisions issued by the court of appeals, though 18 percent of the cases involved trial-court rulings that court-of-appeals judges certified directly to the Supreme Court.

[2] The total of 316 cases is obtained by subtracting 16 cases from the set of 332 cases described in the first footnote of the previous post (“Race of Defendants in OWI, Drug, and Sex Cases”).  The 16 excluded cases consist mainly of those in which both the state and the defendant appealed different portions of a ruling, along with a handful of cases in which it was difficult to say whether the Supreme Court’s decision favored the state or the defendant.

[3] This happened in one of three ways.  (1) The trial court granted the defendant’s motion(s), and the court of appeals affirmed.  (2) The trial court granted the defendant’s motion(s), and the court of appeals passed the case up to the Supreme Court without issuing its own ruling.  (3) The trial court denied the defendant’s motion(s) and was then reversed by the court of appeals.

[4] This also happened in one of three ways—following courses analogous to those that yielded rulings favoring defendants. 

[5] Justice Steinmetz’s last year on the Court coincides with the first year of this study, and thus the figures on his line in Table 2 amount to a tiny (and quite possibly unrepresentative) sample of his voting throughout a tenure of two decades on the Court. 

During the past 15 terms (1998/99 through 2012/13), the Wisconsin Supreme Court decided 332 criminal cases.^[1]  In a large majority of these cases (89% or 295/332), public sources list the defendant’s race as well as the charges filed against him or her at the trial-court level.^[2]  As a result, it is possible to categorize cases according to the race of defendants not only for all criminal cases taken together—Caucasian (175/295=59%), African American (104/295=35%), Hispanic (8/295=3%), American Indian or Alaskan Native (6/295=2%), and Asian or Pacific Islander (2/295=1%)—but for various categories of crimes, such as those featured below.^[3]

OWI Cases
There were 31 cases in which the charges included operating-while-intoxicated (OWI) offenses, and in all 31 of these, the race of the defendant was specified.  Caucasian defendants figured in 94% (29/31) of these cases, leaving just one case with an African American and one case with a Hispanic defendant.

Drug Cases
There were 73 cases in which the charges included one or more drug offenses.  In 9 of these cases, the race of the defendant could not be determined, leaving a subtotal of 64 for consideration here.

Of these 64 cases, 48% (31/64) involved African American defendants, and 42% (27/64) involved Caucasian defendants.  The remaining defendants were distributed among three other racial categories on the Wisconsin Court System’s website: “American Indian or Alaskan Native” (1/64=2%), “Asian or Pacific Islander” (1/64=2%), “Hispanic” (4/64=6%).

Sex Crimes
There were a total of 93 cases in which at least one of the initial charges was a sexual offense.  In 5 of these, the race of the defendant was not specified, leaving 88 cases with which to proceed.

Of these, 23 cases involved African American defendants, and 62 cases involved Caucasian defendants.  The remaining three cases concerned other defendants: “American Indian or Alaskan Native” (2) and “Hispanic” (1).

In 65 of the 88 cases, defendants were charged with sexual offenses involving children (most often sexual assaults, but also such crimes as possession of child pornography).  The other 23 cases involved only adults (again, most often sexual assaults, but also crimes such as prostitution).

In 77% (50/65) of the cases involving children, the defendants were Caucasian, while 20% (13/65) of “child cases” had African American defendants.

Of the 23 cases in which only adults were involved in the alleged sexual offenses, 52% (12/23) had Caucasian defendants, and 43% (10/23) had African American defendants.

Questions
Why would Caucasian defendants figure in 77% of the sex crimes involving children, but only in 52% of the sex crimes involving adults?  Why would 94% of the defendants in OWI cases be Caucasian?  A number of such questions leap from the data.  Given that the justices are free to select the issues that they address in their decisions, does any connection remain between these percentages and differences in the types of crimes prevalent in the Caucasian and African American communities?  If the connection is very weak—that is, if one would be better advised to view the differences as a product of the process by which cases reach the Supreme Court—how does this process yield the figures reported above?  Put another way, do OWI, drug, and sex cases enter the judicial system at the trial-court level with roughly the same racial distributions evident when a much smaller number of them arrive at the Supreme Court?  Whatever the answer, it would reveal something significant about the judicial system and the society of which it is a part.

Finally, along with conscious choices made by the justices regarding issues for review, more impersonal or systemic factors must play some role in the selection of cases.  Relevant here may be the supposition that comparatively prosperous defendants are better able to afford the sort of legal representation likely to gain a hearing in the high court, though more study would be required to determine the degree to which this contributed to the results presented here.  For that matter, prosperity also correlates with a higher rate of automobile ownership and private internet access, but how much does this account for the distribution of racial percentages in OWI and child-pornography cases?  I would be grateful to benefit from any theories that readers can offer.

 

[1] Under consideration here are authored decisions in all cases whose numbers end with the CR suffix.  Occasionally, the Court consolidated multiple cases and addressed them in a single ruling.  When this occurred, I counted the ruling as one decision in the figures that follow.  In very rare instances, a case number ends in “CR” but does not pertain to a criminal matter, as in 2010AP000387-CR, In the matter of sanctions imposed in State v. Gregory K. Nielsen.  The issue here centered on a sanction of $150 imposed by the court of appeals on the Office of the State Public Defender because—the court of appeals maintained—the Assistant State Public Defender’s brief contained a deficient appendix.  Such cases are not included in the total of 332 covered here, and neither are per curiam decisions and orders pertaining to various motions.

In his generous comments on a draft of this post, Bill Tyroler observed prudently that collateral attacks (974.06, habeas) may lack the CR suffix even though the underlying charges were criminal.  However, as these cases surfaced scarcely more than once a year (19 cases in 15 terms, by my count), and would thus have no significant effect on the percentages in this post, I have not added them to the mix.

[2] Generally, this information may be found on the Wisconsin Court System’s website. http://wicourts.gov/   If this site does not list a defendant’s race, it can sometimes be determined through the “Offender Locator” of the Department of Corrections or by means of other sources such as sexual offender registries and the Milwaukee Public Library’s version of Ancestry.  I am especially grateful to Megan Zienkiwicz and John Jentz for helping me track down information on race when it was not provided by the Wisconsin Court System or the Department of Corrections.  Megan and John filled a dozen gaps in the data.

It should be noted that racial identity involves a subjective aspect that eliminates the possibility of absolute precision.  Indeed, a US census report this month indicated that nearly 10 million Americans chose a racial identity in the 2010 census that differed from what had been reported in the 2000 census—with especially large numbers of respondents of Hispanic descent moving into, or out of, the “white” racial category. http://hosted.ap.org/dynamic/stories/U/US_CENSUS_CHANGING_RACES?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT (accessed August 11, 2014).

[3] The figures compiled for the following categories—OWI, Drugs, and Sex—include all cases for which at least one of the initial charges pertained to these crimes.  In some instances, as the judicial process unfolded, one or another of the charges might be dismissed, or dismissed but “read in” for sentencing purposes.  Less often, the defendant was ultimately acquitted.

These tables are derived from information contained in 79 Wisconsin Supreme Court decisions filed between September 1, 1998, and August 31, 1999.  The total of 79 decisions does not include the following items contained in the Supreme Court’s listing of opinions and dispositional orders for this period: (1) decisions arising from disciplinary proceedings against judges and lawyers; and (2) orders pertaining to motions for reconsideration, rulings by the Board of Bar Examiners, and a joint stipulation for dismissal and vacatur in Mason Shoe Manufacturing Company v. Firstar Bank Eau Claire.

Occasionally, the Court’s listing of opinions and dispositional orders contains separate entries for individual cases that were ultimately consolidated and resolved by a single decision.  If two or more cases were combined in this manner, the decision is counted only once for the purposes of the following tables. 

In addition to the 79 decisions noted above, three deadlocked (3-3) per curiam decisions were filed: State v. Deborah J.Z.; Eneman v. Richter; and State ex rel. Luedtke v. Bertrand.  These are included only in the “Number of Oral Arguments Presented” table—which is also the only table to include State v. Moucha, a two-paragraph per curiam opinion announcing that the Court had decided—after examining the briefs and hearing oral argument—that the petition for review had been improvidently granted.  State v. Watson (a 3-3 per curiam decision) does not even figure in the “Number of Oral Arguments Presented” table, because its filing date is listed as May 2, 1997 (despite the fact that it is included in the list of opinions and dispositional orders filed between September 1, 1998, and August 31, 1999).  All of the decisions may be found on the Wisconsin Court System website.  http://wicourts.gov/

The tables are available as a complete set and by individual topic according to the subsets listed below.

Four-to-Three Decisions
Decisions Arranged by Vote Split
Frequency of Justices in the Majority
Distribution of Opinion Authorship
Frequency of Agreement Between Pairs of Justices
Average Time Between Oral Argument and Opinions Authored by Each Justice
Number of Oral Arguments Presented by Individual Firms and Agencies
 

 

 

Wisconsin Supreme Court justices have recently expressed concern over the rate at which cases have been decided this term and the often-lengthy period of time required for decisions to be issued.  With the Court’s term now concluded, the filing of the last batch of decisions over the next few weeks will shed more light on the scope of these problems.  In the meantime, a look at correlations between various factors during the Court’s previous 14 terms will provide some reference points from which to view the data for the current term later this summer.

Correlations—strong and weak

Data from the previous terms reveal a comparatively strong negative correlation between the number of decisions in a term and the number of days between oral arguments and the filing of decisions—that is, the larger the number of decisions, the fewer the number of days between oral argument and decision filing, while the smaller the number of decisions, the longer the wait.  The last seven years of the period under consideration have seen the Court issue 32% fewer decisions than it did during the first seven years, while, in line with this correlation, the number of days between argument and filing has usually been higher than in the earlier years.  (table and graphs)

The Court’s goal of 60 decisions in 2013-14 is similar to the annual number of decisions over the past five terms (except for 2012-13, when it plunged to 46).  Thus, if the correlation noted above holds for 2013-14, we can expect a lengthy average period between argument and filing.

One might also anticipate a strong correlation between the average number of concurring and dissenting opinions per decision and the number of days between argument and filing.  The larger the number of justices who write concurrences and dissents in a case, this reasoning holds, the longer it should take, on average, for a decision to be filed.  As it happens, such a correlation is evident, but it is a good deal weaker than the correlation noted above. (graph)   Clearly there is some relationship between the number of concurring and dissenting opinions on the one hand and the wait for a decision on the other, but this correlation has not been dramatic over the past 14 years.  It will be interesting to see if data for 2013-14 suggest a more robust relationship between these two factors.

Does unanimity matter in this regard?

It would appear plausible to hypothesize that the average number of days between argument and filing should decrease as the percentage of comparatively uncontentious (unanimous) decisions increases.  Yet the correlation here is very weak (graphs), suggesting that the percentage of split decisions has not been a pivotal factor in the growing number of days between argument and filing.

Past patterns will not continue indefinitely, of course, but without bearing them in mind, it will be impossible to ascertain in what ways, if any, the Court’s 2013-14 term has been remarkable.

The information presented in the following tables covers four terms of the Wisconsin Supreme Court (2009-10 through 2012-13) and focuses on the 42 cases in which the Wisconsin State Public Defender’s Office (SPD) presented oral arguments.  Table 1 identifies all of the cases in which the SPD presented oral arguments and indicates whether or not the outcome favored the SPD.  The second set of tables specifies how frequently each of the seven justices cast votes siding with the SPD.

Individual cases and outcomes
Votes by individual justices

Earlier this week the Milwaukee Journal Sentinel published an article[1] describing an unusual measure adopted by the Wisconsin Supreme Court.  Concerned about a looming backlog of cases, the justices voted 5-2 to limit the number of minutes during which they could discuss individual cases before reaching a decision.  Chief Justice Shirley Abrahamson, who opposed the time limits and suggested instead that the justices meet more frequently, provided a sense of the backlog’s dimensions in a memo dated May 21.  In particular, she expressed concern that so late in the term the justices had only discussed 14 (23%) of the 60 cases that they hope to decide by June 30.

The following table, which covers 14 terms (1999-00 through 2012-13) suggests that the current backlog is indeed striking—especially when compared to the early years of the period, when the court handled a much larger number of cases (sometimes twice as many as in 2012-13) and did so at a brisker pace than the justices have managed so far this year.  Moreover, the figures in the table pertain to the dates of issue for decisions, which could well be a good deal later than the discussions noted by Justice Abrahamson—further underscoring the extent of the delay in 2014.

Reading the table: Taking the 2008-09 term as an example, 62 decisions were issued that year—16 decisions (26%) by April 15, 2009, 21 decisions (34%) by May 15, 29 decisions (47%) by June 15, and 54 decisions (87%) by July 15.

Term	Percentage of Term’s Decisions Issued by the Following Dates
	April 15	May 15	June 15	July 15
2012-13	13/46=28%	15/46=33%	18/46=39%	40/46=87%
2011-12	24/61=39%	28/61=46%	36/61=59%	59/61=97%
2010-11	17/61=28%	22/61=36%	32/61=52%	53/61=87%
2009-10	8/59=14%	11/59=19%	15/59=25%	47/59=80%
2008-09	16/62=26%	21/62=34%	29/62=47%	54/62=87%
2007-08	16/70=23%	20/70=29%	35/70=50%	67/70=96%
2006-07	23/67=34%	24/67=36%	32/67=48%	60/67=90%
2005-06	22/81=27%	23/81=28%	47/81=58%	81/81=100%
2004-05	28/98=29%	39/98=40%	55/98=56%	97/98=99%
2003-04	36/90=40%	39/90=43%	57/90=63%	90/90=100%
2002-03	19/92=21%	28/92=30%	39/92=42%	87/92=95%
2001-02	29/89=33%	39/89=44%	45/89=51%	84/89=94%
2000-01	28/93=30%	32/93=34%	50/93=54%	93/93=100%
1999-00	27/89=30%	32/89=36%	41/89=46%	89/89=100%

The table includes per curiam decisions—but not decisions arising from disciplinary proceedings against judges and lawyers, nor petitions for review and decisions on various motions (for reconsideration, to dissolve injunctions, to vacate decisions, and so forth).

Members of the Wisconsin Supreme Court (terms run from September 1 to August 31)
2008/09-2012/13: Abrahamson, Bradley, Crooks, Prosser, Roggensack, Ziegler, Gableman.
2007/08: Abrahamson, Bradley, Butler, Crooks, Prosser, Roggensack, Ziegler.
2004/05-2006/07: Abrahamson, Bradley, Butler, Crooks, Wilcox, Prosser, Roggensack.
2003/04: Abrahamson, Bradley, Crooks, Sykes, Wilcox, Prosser, Roggensack.
1999/00-2002/03: Abrahamson, Bradley, Crooks, Sykes, Wilcox, Prosser, Bablitch.

[1] http://www.jsonline.com/news/statepolitics/wisconsin-supreme-court-imposes-time-limits-on-debate-to-clear-backlog-b99285777z1-262300041.html

These tables are derived from information contained in 46 Wisconsin Supreme Court decisions filed between September 1, 2012, and August 31, 2013.  The total of 46 decisions does not include decisions pertaining to matters arising from the Office of Lawyer Regulation and the Wisconsin Judicial Commission.  The decisions may be found on the Wisconsin Court System website.  http://wicourts.gov/

The tables are available as a complete set and by individual topic according to the subsets listed below.

Four-to-Three Decisions
Decisions Arranged by Vote Split
Frequency of Justices in the Majority
Distribution of Opinion Authorship
Frequency of Agreement Between Pairs of Justices
Average Time Between Oral Argument and Opinions Authored by Each Justice
Number of Oral Arguments Presented by Individual Firms and Agencies

The following tables are derived from information contained in 60 Wisconsin Supreme Court decisions filed between September 1, 2011, and August 31, 2012.  This total of 60 decisions does not include one per curiam decision (Wis. Prosperity Network v. Myse) that yielded a 3-3 vote.  Nor does it include decisions pertaining to matters arising from the Office of Lawyer Regulation and the Board of Attorneys Professional Responsibility.  (The decisions may be found on the Wisconsin Court System website.  http://wicourts.gov)

The tables are available as a complete set and by individual topic according to the subsets listed below.

Four-to-Three Decisions
Decisions Arranged by Vote Split
Frequency of Justices in the Majority
Distribution of Opinion Authorship
Frequency of Agreement Between Pairs of Justices
Average Time Between Oral Argument and Opinions Authored by Each Justice
Number of Oral Arguments Presented by Individual Firms and Agencies

The following tables are derived from information contained in 58 Wisconsin Supreme Court decisions filed between September 1, 2010, and August 31, 2011. This total of 58 decisions does not include three per curiam decisions (Polsky v. Virnich; Phillips v. U.S. Bank Nat’l Ass’n; and Metro. Milwaukee Ass’n of Commerce, Inc. v. City of Milwaukee), each of which yielded a 3-3 vote. Nor does it include decisions pertaining to matters arising from the Office of Lawyer Regulation and the Board of Attorneys Professional Responsibility. (The decisions may be found on the Wisconsin Court System website. http://wicourts.gov)

The tables are available as a complete set and by individual topic according to the subsets listed below.

Four-to-Three Decisions
Decisions Arranged by Vote Split
Frequency of Justices in the Majority
Distribution of Opinion Authorship
Frequency of Agreement Between Pairs of Justices
Average Time Between Oral Argument and Opinions Authored by Each Justice
Number of Oral Arguments Presented by Individual Firms and Agencies

The following tables are derived from information contained in 58 Wisconsin Supreme Court decisions filed between September 1, 2009, and August 31, 2010.  This total does not include rulings pertaining to recusal motions and matters arising from the Wisconsin Judicial Commission, the Office of Lawyer Regulation, and the Board of Attorneys Professional Responsibility.  Nor does it include Ehlinger v. Hauser—in which Justice Crooks did not participate, and three other justices concurred in part and dissented in part.  The decisions may be found on the Wisconsin Court System website.  http://wicourts.gov/

The tables are available as a complete set and by individual topic according to the subsets listed below.

Four-to-Three Decisions
Decisions Arranged by Vote Split
Frequency of Justices in the Majority
Distribution of Opinion Authorship
Frequency of Agreement Between Pairs of Justices
Average Time Between Oral Argument and Opinions Authored by Each Justice
Number of Oral Arguments Presented by Individual Firms and Agencies