Keith Raniere is expected to appeal his conviction to the US Court of Appeals for the Second Circuit within the next few months.
What are the odds of him gaining a complete reversal of his conviction?
A complete reversal would mean his conviction would be vacated and the Department of Justice would either choose to recharge him and he would face a new trial [most likely] or he would walk out of prison a free man [highly unlikely].
A study done a few years ago, which appeared in Prison Legal News – What Are the Odds of Complete Reversal After Conviction in the Second Circuit? – shows that the odds for any appellant in the federal system are slim to begin with.
The study focused on the US Court of Appeals for the Second Circuit – the court where Raniere’s appeal will be heard. The Second Circuit is one of 13 United States Courts of Appeals, and hears appeals from federal trials from Connecticut, New York, and Vermont.
According to the study, a complete reversal of a conviction occurred less than 4 percent of the time in the Second Circuit.
However, some appellate judges voted for reversals almost 9 percent of the time, while others were near zero.
“The results of our survey,” Prison Legal News reports, “strongly suggest that an appellant’s odds of winning a complete reversal in a close case brought in the Second Circuit are largely determined by which three-judge panel hears the appeal. By any yardstick, this seems random and unfair.”
To complete their report, Prison Legal News reviewed 1985 decisions involving direct appeals from trial convictions in the Second Circuit that were decided by the Second Circuit between January 1, 2000, and May 31, 2013.
The article states, “It is often said that defendants are entitled to a fair trial, not a perfect trial, and so the percentage of complete reversals should reflect the percentage of cases in which appellate judges determined that the defendant did not receive a fundamentally fair trial. If the judges are guided by this rule, then it follows that they collectively believe that more than 96 percent of trials are fundamentally fair; our research reveals that over the 13 years we examined, the rate of complete reversals was approximately 3.78 percent…
“These are enlightening statistics, but they don’t tell the whole story.
“Attorney Roy Cohn famously said, ‘Don’t tell me what the law is, tell me who the judge is.’ Cohn, of course, was referring to trial-level judges and to a slightly different phenomenon than what is typically encountered at the appellate level, but it is no less — and possibly more — true when it comes to appeals, where a judge’s philosophy of appellate review of criminal convictions may trump all other predictors of success when close issues are presented.”
Reversal Rates
The authors of the report, Richard Levitt and Peter Schmidt, reviewed reversal rates of every Second Circuit judge on every panel.
They wrote, “Reversal rates of current Second Circuit judges who sat on at least 50 panels reviewing convictions after trial ranged from 0 percent, .8 percent and 1.6 percent (Judges Lynch, Livingston and Raggi), to 6.6 percent, 7.7 percent and 8.8 percent (Judges Jacobs, Calabresi and Parker). That’s quite a difference. If you draw a panel of judges with the lowest reversal rates, your odds of prevailing, even with an arguably meritorious issue, are vanishingly small. Draw a panel of judges with the highest reversal rates and your chances increase almost ten-fold.”
The article does not address what causes this disparity.
One thing seems clear, however: if it is true that Raniere, or for that matter any appellant, has any hope at all, the panel of judges assigned to hear his appeal may have more to do with his prospects of winning, than legal arguments.
That in itself is a fascinating due process issue.
As the authors of the study wrote, “And so the next time a defendant in a criminal case asks whether he has a shot at winning a complete reversal of his conviction in the Second Circuit, his attorney can say, ‘I’ll let you know when the panel assignments are published.'”
