The Vanishing Reversal Rate in the Second Circuit

In my lectures during the last several years I've discussed the Second Circuit's abysmal record of affirming nearly all trial convictions in criminal cases. In 2024, for example, the court entirely reversed no convictions at all, while affirming 98. In 2023 they reversed 1 and affirmed 67 (although they granted substantial relief in another case, U.S. v. Lauria (Molina), 70 F.4th 106 (2d Cir. 6/9/23)), in which we were appellate counsel). Take a look at this graph and you'll see how bad things have gotten the last 19 years:

In part this drastic reduction in trial conviction reversals reflects the overall reduction in the number of trials, but in substantial part it reflects an undeniable Second Circuit trend toward government-friendly decision-making in criminal appeals. (It is interesting to note that, by contrast, the court continues to be relatively progressive in civil rights cases). This trend not only disadvantages defendants who appear before the court but also sends a strong "anything goes" message to prosecutors and judges, who know that their pro-prosecution conduct, no matter how egregious, will be overlooked. Although some may view this as a useful expedient to assure that defendants they believe are guilty stay convicted, it is, at bottom, short-sighted because it undermines the integrity of the justice system and reduces the number trials, which remain a bulwark against government overreach. We've seen during the last several months the damage that can be done to our cherished institutions when guardrails are dismantled in the name of expediency. In this instance it is very much so that "you are either part of he problem or part of the solution."

Let's hope that the judges appointed to the Circuit in recent years -- Judges Lee, Robinson, Perez, Nathan, Merriam and Kahn -- will, together with other fair-minded judges, begin to return the court to some degree of evenhanded decision-making.

Richard Levitt