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Monday, February 08, 2010

Ind. Gov't. - Reader baffled by AG Zoeller's reported affirmance rate on criminal appeals [Updated]

In this entry from Jan. 29, 2010, the ILB linked to two press releases of Attorney General Greg Zoeller. announcing his first-year accomplishments and future plans. From the AG's list of accomplishments:

3. * * * Criminal Appeals: Representing the State in the Court of Appeals and Indiana Supreme Court, the Attorney General's Office has a 95.6 percent success rate in getting convictions or sentences affirmed on appeal, sparing crime victims (and taxpayers) the burdens of retrial. That's up from the 94 percent success rate the previous year. Zoeller met with county prosecutors on lower-court cases headed for appeal.
The ILB has received the following note from Joel Schumm, a Clinical Professor of Law at Indiana University School of Law -- Indianapolis, where he directs the Appellate Clinic and litigates several appeals each year.
Third on the Attorney General’s press release of “accomplishments” for 2009 was “Criminal Appeals: Representing the State in the Court of Appeals and Indiana Supreme Court, the Attorney General's Office has a 95.6 percent success rate in getting convictions or sentences affirmed on appeal, sparing crime victims (and taxpayers) the burdens of retrial. That's up from the 94 percent success rate the previous year.”

I find those numbers baffling, at best.

I follow criminal appeals closely, and the Court of Appeals’ annual reports routinely report about an 85-87% affirmance rate in both criminal and Post-Conviction Relief (PCR) appeals. The Indiana Supreme Court does not report similar numbers, but the Court issues only about forty opinions in criminal or PCR cases each year. Here’s how I do the math, relying on the Court of Appeals’ annual reports and a quick count of Indiana Supreme Court opinions:

2008

Court of Appeals
Criminal & PCR: 1467 affirmed (86.3%) / 213 reversed / 20 remanded.

Indiana Supreme Court
Criminal & PCR: 30 affirmed (68.2%)/ 14 reversed

­2008 Combined percentage: 85.8%


2009

Court of Appeals
Criminal & PCR: 1392 affirmed (86.3%)/ 207 reversed / 14 remanded

Indiana Supreme Court
Criminal & PCR: 26 affirmed (66.7%)/ 13 reversed

2009 Combined percentage: 85.8% affirmed

Prof. Schumm's note concludes: "How does the Attorney General come up with percentages nearly ten points higher?"

In response to an inquiry from the ILB, Bryan Corbin, spokesman for the AG, writes:

I am advised that the 95.6 percent figure for calendar-year 2009 includes all state appellate cases (including Indiana Supreme Court, not just Court of Appeals). The synopsis is that the search started with all opinions in criminal cases where the State of Indiana was a party and where Greg Zoeller's name appears as counsel, and then involved locating those with "affirmed" or "reversed" results within those results. (A "win" for the state is a reversal when we are the appellant.)
[Updated at 12:14 PM] Jon Laramore, who leads the appellate group at Baker & Daniels LLP, has sent this note:
It’s possible that the differences in reversal rates stem from how the counting is done. In a fair number of cases, something is reversed or vacated but something else is affirmed. For example, the conviction could be affirmed but the sentence vacated or changed. Or the conviction on one count could be affirmed and on another count reversed. Depending on how these are counted, quite different percentages could be calculated. The attorney general’s language you quote refers to “getting convictions or sentences affirmed” (emphasis added), and that may show something about how the counting was done.

Posted by Marcia Oddi on February 8, 2010 07:55 AM
Posted to Indiana Courts | Indiana Government