December 2006 Archives
About not posting anything until January 2, anyway. Just got the word on the disciplinary case against Richard Agopian, the Cleveland lawyer who'd been accused of presenting excessive fee bills. I did a post on this back when the Court had oral orgument on it four months ago, which you can read here.
The Board of Commissioners on Grievances and Discipline had recommended a one-year suspension stayed on conditions. The Court, by 4-3 vote, rejected the recommendation, and instead gave Agopian a public reprimand.
You can read the opinion here.
If you check below the blogroll on the right, you'll see a little icon that says "Sitemeter." If you click on it, you won't find anything, but if I do, I'll be taken to a site which keeps track of how many people visit The Briefcase. It also tells me from where; for reasons unknown to me, for example, I have a regular reader somewhere in North Carolina. It will also tell me how they got here. I still get people showing up here who've entered "christine agnello russo" into Google. Some stories just die hard.
From time to time here on out, I'll post the weirdest search phase that anybody has used to hit my site. This week's winner, hands down, is the phrase "blonde police foot worship." It was from someone in San Francisco. Gee, there's a surprise...
As you might have figured out, Friday's become my day to pull stuff off the web that might be informative/interesting/entertaining. Here's a feel-good piece about a 75-year-old Dade County attorney that starts with this exchange in court:
Attorney: I'm here on a mission of mercy for this poor innocent child, your honor.
Judge: How old is this `poor child'?
Attorney: He's 23 years old, your honor . . . a babe in the woods.
Judge: If I recall, once you reach 18, you're not a child anymore.
Attorney: I have suits that are older, your honor.
Judge: You have speeches that are older. I've heard them all, Mr. Gaer. Motion denied.
And from Doug Berman's Law and Sentencing Policy blog, here's a feel-bad piece about a black man in Georgia who was sentenced to 10 years in prison without parole for having consensual oral sex with a 15-year-old girl at a New Year's Eve party when he was 17 years old. Links to the background stories, and good questions from Prof. Berman, one being, "Doesn't this story sound like one we might hear from some repressive foreign country, and not from a state in a country that supposedly prides itself on liberty and freedom?"
Here's a short post on why legalizing marijuana and taxing it probably wouldn't result in the bonanza that many people think. Good piece, but what jumped out at me was that 43% of all drug arrests last year involved marijuana.
Closer to home, the Ohio Supreme Court rejected, by a 4-2 vote, a proposed change to Criminal Rule 16 which would have basically provided the defense with the same information available to the prosecution, with protection for work product and some restrictions on copying, use, and disclosure.
If you feel bad about charging that client $2500 for representing him on a DWI -- the one where if he'd gone in without you the day of arraignment and pled no contest, he'd have wound up with the exact same sentence -- you'll feel better after reading this. Seems that the lawyers for Jeff Skilling, the Enron CEO, are billing him -- wait for it -- $70 million in attorney fees for their representation in his criminal case. You remember, the one where he was found guilty and sentenced to 24 years in prison. They already got $40 million, and are asking for another $30 million for the 12 lawyers and 5 paralegals they brought down for the trial. Good thing they used all those guys. If they'd only had, say, 10 lawyers and 3 paralegals, he might have been convicted on all the counts. Oh, wait, he was...
I'll be taking a break from blogging over the holidays, namely, all next week and New Year's Day. I'll be back on January 2 with two weeks of court updates, tips on how to win an inventory search case, an explanation of why Ohio Jury Instructions have screwed up the instructions on assumption of risk, and whatever else pops into my mind between now and then. See you in a little over a week, and have the best of holidays.
I was going to do a post on self-defense, but that'll have to wait until after the holidays. The Ohio Supreme Court handed down a couple of cases today, which served as the functional equivalent of sticking a lump of coal into the stockings of personal injury and criminal defense lawyers.
In Robinson v. Bates, the plaintiff's medical care provider had charged her $1,900. Her health insurance company had paid $1,300, and the provider had written off the rest. Of course, one of the items of damages in a PI case is the amount of the medical bills. What was it in this case -- the amount the provider charged, or the amount that was actually paid?
The plaintiff argued that evidence of what was actually paid shouldn't come in because of the collateral source rule, which essentially prohibits evidence of plaintiff's insurance benefits. The Court disagreed, holding that the proper question was the reasonable and necessary expenses incurred by the plaintiff, and that both figures were therefore allowable in evidence.
This is in line with the gradual deterioration of the collateral source rule over the years. RC 2315.20, for example, which took effect in April of 2005, rolled back the rule by allowing evidence of benefits received by the plaintiff.
But this ruling substantially accelerates that deterioriation. 2315.20 didn't allow the evidence of benefits if they were subrogated, that is, if the plaintiff had to pay back the benefit provider from the proceeds of the litigation. In this case, 2315.20 wouldn't have had any effect: since the insurance company did have a subrogation claim, the fact that they'd paid $1,300 wouldn't have been allowed, and the plaintiff could have submitted the $1,900 bill as proof of her damages.
Under the court's ruling in Robinson, the jury gets to hear both figures. The Court's argument that the jury can then decide which figure best approximates the actual cost of plaintiff's care is a bit disingenuous; it's hard to see a jury concluding, "Well, the medical provider only got $1300, but we're going to pretend that the plaintiff actually had to pay $1900 and award her that amount in specials." The Court notes that this is ultimately a question for the legislature:
whether plaintiffs should be allowed to seek recovery for medical expenses as they are originally billed or only for the amount negotiated and paid by insurance is for the General Assembly to determine.
Given our state legislature, you don't have to call the psychic hotline to figure out how that's going to turn out.
On the plus side, the Supreme Court held that the court of appeals was correct in reversing trial court's grant of a directed verdict to defendant on the open and obvious doctrine. This would normally make me happy; as my legion of faithful readers know, I'm not particularly fond of the doctrine, and my antipathy only deepened earlier this week when I got hammered in the trial of my slip and fall case. As I'd mentioned, the judge had booted me out on summary judgment, but I knew better, so I got him reversed in the court of appeals. Took the jury less than an hour to tell us who'd been right and who'd been wrong on that one. It was a construction site accident, and it didn't help that defense counsel had a picture of the site blown up to a size where it looked like you needed a monster truck to negotiate the clods of dirt that lay clustered around. He put the picture on an easel in opening statement, then spent the rest of the trial doing crossword puzzles. Every couple of hours, he'd look up, go "Pssst!" to the jury, and point to the picture. That's all it took.
Guess I showed that judge, huh?
Anyway, the Supreme Court did say in Robinson that the case shouldn't have been kicked out, but it's not that big a deal. This was a case involving not just a landowner, but a landlord, and for reasons I'll discuss some other time, the courts have held that open and obvious doesn't apply where a landlord has a statutory duty to keep the property safe and in repair. Which he did here.
The damage to criminal defense attorneys was less, and much more anticipated. In State v. Azbell, the Court held
For purposes of calculating speedy-trial time pursuant to R.C. 2945.71(C), a charge is not pending until the accused has been formally charged by a criminal complaint or indictment, is held pending the filing of charges, or is released on bail or recognizance.
I had a post back in June on the case when they did the oral argument, and predicted that the appellate court's decision that speedy trial was violated would get reversed. As I noted then, the Supreme Court's ruling is in keeping with prior 8th District decisions.
The police conduct a warrantless search of a house, and come across a marijuana-growing operation. On that basis, they obtain a warrant, raid the house, and seize the evidence of drug manufacturing and trafficking. The trial court determines that the original, warrantless search of the house was improper. Does that mean that the evidence seized in the search conducted with a warrant gets tossed?
You'd certainly think so. After all, under the "fruit of the poisonous tree" doctrine, an unconstitutional search or seizure taints whatever follows: there are any number of cases holding that information obtained from an illegal search can't be used to obtain a warrant to conduct a second, legal search.
But last year, in US v. McClain, the 6th Circuit decided that the illegality of the first search didn't require suppression of the evidence obtained in the second. The court noted that the case offered an opportunity to analyze the fruit of the poisonous tree doctrine in light of the "good faith" exception to the warrant requirement under US v. Leon, the 1984 US Supreme Court case which established that the exclusionary rule would not be applied to a search conducted with an invalid warrant as long as the police have a good faith belief that the warrant is valid. The court decided that the initial warrantless search was "close enough to the line of validity" to allow upholding the warrant search under the Leon exception. (In fact, one of the judges concurred on the grounds that he believed the initial search was valid, so there wasn't even an issue of taint.)
The 6th Circuit denied an en banc hearing this past summer, and last month the Supreme Court denied certiorari.
The court's decision is understandable, especially if one agrees with Leon's theory that the societal costs of excluding evidence for improper police conduct is not worth it where the police have no reason to believe that their conduct is improper. But the decision comes perilously close to establishing a good faith exception for a warrantless search, as this language indicates:
Because the officers who sought and executed the search warrants acted with good faith, and because the facts surrounding the initial warrantless search were close enough to the line of validity to make the executing officers' belief in the validity of the search warrants objectively reasonable, we conclude that despite the initial Fourth Amendment violation, the Leon exception bars application of the exclusionary rule in this case.
Obviously, under the court's analysis, if the first search had been completely bogus, the second set of officers wouldn't have had an objectively reasonable belief in the validity of the warrants. In short, the officers' "good faith" depended in large part upon their belief that the first search was valid, not the warrant.
This is bound to come up again, and it's not too difficult to imagine courts using McClain to uphold warrant searches based on borderline stop and frisks or similar situations. One of the problems with the exclusionary rule is that its costs are apparent: you know you're tossing out evidence which could result in the defendant's conviction. For that reason, there's a natural tendency by judges to avoid that result by upholding the search in marginal cases; this is one area where the defendant almost never gets the benefit of the doubt.
A couple of things to keep in mind. First, although Ohio courts pay deference to 6th Circuit decisions on Federal issues, those decisions aren't binding on the Ohio courts. McClain notes that the 9th and 11th Circuits have held that an illegal search taints a later warrant search, despite Leon, and it's perfectly proper to cite those cases. Secondly, as I pointed out back in July, the Ohio Supreme Court's decision in State v. Farris establishes that the Ohio constitution can serve as an independent basis for rights, and may extend more protection than the US constitution does in certain circumstances. It's worth a second look. But that means you have to assert it; if you haven't changed your form suppression motions to allege Ohio constitutional violations, it's a good time to do that.
Interesting decision last week by the 8th District on sex offender registration in State v. Fitzgerald. In a nutshell, the defendant had been convicted of rape. As a sexually oriented offender, he was required to register within seven days in the county where he was residing. He refused to tell the institution where he was going to live, so they put down Cuyahoga County, where he'd resided at the time of his conviction. When he didn't register within a week of his release, a warrant was issued for his arrest. He'd actually moved to Massachusetts, and wound up being arrested there, then extradited to Ohio.
And that's when things got a little weird. Despite the fact that the trial judge had failed to notify him of post-release controls, the APA determined he was a parole violator, and locked him up for six months. At the conclusion of that, he was brought to trial in Cuyahoga County for failing to register as a sex offender. He was convicted, and the appellate court upheld his conviction by a 2-1 vote. All this despite the fact that although he was convicted of failing to register in Cuyahoga County, he never resided in Cuyahoga County after getting out of prison.
It's easy to understand the majority's conclusion that Fitzgerald was trying to "slip under the radar" of the registration requirement. Still, it's hard to dispute Judge Karpinski's point in dissent that "the state failed to prove that defendant, charged with failure to register in Cuyahoga County, ever resided in Cuyahoga County, an essential element of the crime."
More worrisome was the court's handling of the PRC issue. In a trilogy of decisions culminating with Hernandez v. Kelly, the Ohio Supreme Court has held that a failure of a trial court to advise the defendant of PRC at sentencing leaves the APA powerless to impose them. Fitzgerald argued that this gave him a speedy trial argument: since the PRC violation was illegal, this meant the six months he'd spent doing time for the violation should've counted as 3 for 1 under the speedy trial statute, taking his trial well beyond the limit.
The court's rationale for rejecting that is troubling. According to the court, first, the only way for Fitzgerald to raise this issue was through a habeas corpus petition, and second, Hernandez has been superceded by statute.
While Hernandez was decided on a habeas petition, the Court never suggested that was the sole remedy; in fact, the Court held that PRC was void ab initio if it wasn't specified by the trial court. Void doesn't mean voidable; if there was no PRC, then the APA didn't have any authority to violate the defendant, and the six months he spent in prison for that should have counted toward the indictment for speedy trial purposes.
As the dissent also shows, the claim that Hernandez has been superceded by statute is highly questionable, too. I talked about the statutes in question shortly after they were enacted in July, and you can read about that here; basically, the statutes state that PRC is automatically imposed for sex offenses, regardless of whether the trial court says anything about it. The dissent argues in Fitzgerald, though, as I did back in August, that the statutory amendments are unconstitutional. Hernandez was based on a separation-of-powers argument: since only the judiciary branch can impose punishment, the APA can't put someone on PRC unless the trial court gives them the power to do that. Amending the law doesn't solve that; it's a constitutional, not statutory, problem.
Most puzzling of all was the Fitzgerald majority's handling of the amendments as applied to the defendant's case. After all, they took effect long after he had been originally sentenced, and in fact after he'd been released. No problem: the court held that the amendments were intended to be "remedial," and thus could be applied retroactively to Fitzgerald. This is in direct contradiction to the statute: it specifies that the amendment applies only to sentences imposed on or after the effective date of the amendment.
As I said, the majority was obviously troubled by the defendant's attempt to game the registration requirements, and there certainly is some societal interest in keeping tabs on sex offenders, especially someone with a prior conviction for rape. But in validating that interest, the Fitzgerald decision treats the offender registration statute badly and the PRC issue even worse.
I covered the major cases from the Supreme Court on Friday -- there wasn't much of interest besides the two death penalty appeals -- so let's take a look at the court of appeals cases from the past week.
Civil. Allowing plaintiff to seek per diem amount of damages in final portion of closing was error, says 8th District, but was waived by defendant's failure to request permission to rebut... 1st District holds that threat of harm, not actual harm, appropriate standard for issuance of preliminary injunction... Good discussion of standards for determining underemployment for child support purposes in this 9th District case... 2nd District upholds award of $994 in attorney fees as discovery sanctions for counsel's failure to procure court reporter for deposition...
Criminal. 8th District reverses speeding conviction, continues its holding, also shared by 2nd and 3rd Districts, that officer's visual estimation of speed not sufficient to convict... Dismissal proper where police officer violates department policy by taping over videotape of DWI defendant's arrest, says 1st District; I did a post on this back here... 3rd District holds that denial of suppression motion proper where defendant voluntarily appeared at police station to make statement... Prior acts were admissible, despite fact they occurred eight years ago, holds 12th District... 5th district rules that uncounseled misdemeanor conviction can serve as basis for revoking probation...
Guess you have to punch the lawyer. Occupational hazards: when the attorney in State v. Vaughn presented a plea offer to his client and suggested he take it, the client not only rejected the deal but called the lawyer "a dirty mother fucker" for having the audacity to bring it to him. The 8th District held this didn't "represent a breakdown in communication between him and his counsel of sufficient magnitude to represent a denial of counsel, such that new counsel should have been appointed."
And in light of Ohio's new smoking ban, you might want to check out this case, in which the court of appeals devotes thirteen pages, including a concurring and a concurring-and-dissenting opinion, to upholding a $35 fine for disorderly conduct for defendant's confronting several people about smoking at a youth baseball game.
I've got a trial coming up on Monday; it's a slip and fall that the judge threw out on summary judgment, but I got him reversed in the court of appeals, so you can imagine how happy he'll be to see me. The defense attorney wants to try a personal injury case the week before Christmas like he wants to have an anesthetic-free root canal, but the judge assured him that the jury wouldn't even think about Christmas. They will after I get done. I figure my opening line in summation will be, "In this season of giving..."
Anyway, I've got that to do, and I'm lazy, so I'm just going to pick some stuff off the web for today...
The Ohio Supreme Court had a flurry of activity the other day, handing down over a half dozen decisions, including two affirmances on capital punishment cases. In one of them, the court upheld the death penalty, but vacated the non-capital sentences and remanded for resentencing because of Foster violations. That's sort of the ultimate good news/bad news joke, I suppose. The case is otherwise notable for the assignment of error arguing that the trial court erred in refusing to allow the jury to take "smoke breaks," thus possibly diverting the attention of the one smoker on the panel from the task at hand because of his "mentally wanting, and physically needing to smoke tobacco."
On the other hand, despite these decisions, the number of death penalties imposed in the United States continues to fall. As this article notes, while about 300 people were put to death in the US each year during the 90's, from 1999 that number steadily declined. Last year, it was 128, the lowest since capital punishment was reinstated by the Supreme Court in 1976. According to the Death Penalty Information Center, the number so far this year is 114. Well, 115. Florida executed someone yesterday, and as this article points out, it took 34 minutes and another round of injections for the guy to die.
In fact, the Gallup poll notes that the public is now almost evenly split between preferring the capital punishment and life imprisonment without parole as penalties for murder; up until recently, the death penalty was preferred almost 3-1. There's a downside to this, though; as I mentioned back in July, some research has shown that the effect of offering the possibility of life imprisonment without parole has been that the number of capital sentences are reduced marginally, while the number of people serving LIOP sentences for non-capital crimes has increased dramatically. (In Ohio, for example, LIOP is available for any aggravated murder, and even some non-homicide cases.) Whether that's a good thing or a bad thing is a matter for debate, I suppose, but I'm fairly sure it wasn't intended.
Ran across an interesting article on the Volokh Conspiracy website about a small-claims case in which the judge threw out the suit brought by a Muslim woman because she refused to remove her veil. The judge stated that if her face remained covered, he couldn't properly evaluate her credibility. The author of the article agrees with the judge, pointing out that viewing a witness, including her facial expressions, is regarded as a superior method of gauging truthfulness. Not sure I agree with that, but that is one of the reasons an appellate court will almost invariably defer to the fact-finder's determinations of credibility. There's a discussion about the whole thing on the site that makes for some interesting reading.
If you're a lawyer with a PDA, or thinking about getting a PDA, this is the site for you.
Speaking of Christmas -- and you were going to get a PDA for Christmas, right? -- a while back I had a post linking to another blog's Christmas Gift Guide for Lawyers. Well, I got email from another lawyer asking me to tout his album of humorous lawyer-oriented Christmas carols, which you can sample and, er, um, buy at this site.
And speaking of emails, I also got one from the editor of a newspaper in Guernsey County, who'd stumbled across this piece I'd done three months ago on lawyers fees in appointed criminal cases, where I'd written that Guernsey County would be a good place to practice. Why? he wanted to know. So I wrote him an email back, explaining the figures that I had showed that Guernsey County paid the highest hourly rates ($60 for both in-court and out-of-court time) in the state, and that they pay among the highest maximums for felony ($3,000) and death penalty ($50,000) cases as well. Of course, I told him in my best snobbish manner, you probably don't get a whole lot of death penalty cases down in Guernsey County.
The other death sentence that the Supreme Court affirmed on Thursday was from, you guessed it, Guernsey County.
It can happen to anybody, you tell yourself. The secretary screwed up, or the law clerk did, or you did, but the bottom line is that you blew the statute of limitations on that personal injury case: it expired last week. Anything you can do?
Well, yes. Welcome to the weird world of RC 2305.15(A), which provides:
When a cause of action accrues against a person, if the person is out of the state, has absconded, or conceals self, the period of limitation for the commencement of the action... does not begin to run until the person comes into the state or while the person is so absconded or concealed. After the cause of action accrues if the person departs from the state, absconds, or conceals self, the time of the person's absence or concealment shall not be computed as any part of a period within which the action must be brought.
If you interpret that to mean that the statute of limitations is tolled for the two weeks that the putative defendant loaded up the family in the minivan and went to visit Aunt Emma in Georgia, you're absolutely right. You'll notice that the statute says "...is out of state, absconds, or conceals self." It's in the conjunctive: the defendant need not intend to avoid process. He doesn't even have to be aware that there's a lawsuit in the offing. As long as he's out of state, the time is tolled.
So all you have to do is file suit, take the defendant's deposition, and hope that he spent seven days in the past two years out of state. In fact, it doesn't have to be seven whole days; there's case law to the effect that even a fraction of a day tolls the time.
That's almost exactly what happened to the defendant in Johnson v. Rhodes, the last case on the statute to reach the Ohio Supreme Court, back in 2000. The plaintiffs had filed their complaint two days after the statute ran, but found out that the defendant had spent ten days vacationing in Kentucky during that time. The court held the statute was tolled during that absence.
There are some limits to the statute. Back in 1988, the US Supreme Court held that 2305.15(A) was unconstitutional as applied to foreign corporations, because it constituted a burden on interstate commerce; unless a defendant corporation had a statutory agent here -- and thus subjected itself to the general jurisdiction of Ohio, waiving any claim of lack of personal jurisdiction -- it basically had no statute of limitations defense. A couple of weeks back, the 2nd District in Grover v. Bartsch held that applying the statute to a non-resident individual also was an impermissible burden on interstate commerce. The commerce argument was also presented in Johnson, but the Court rejected it, holding that leaving the state for non-employment reasons didn't implicate the commerce clause.
It's pretty likely that the statute will be limited to those situations. There's case law out there saying that it doesn't apply if an Ohio resident moves out of state to obtain employment elsewhere, or stays in Ohio but leaves the state occasionally for business purposes. And frankly, I wouldn't be surprised to see a Federal court in a diversity case strike down the statute even in situations where the defendant leaves for personal reasons.
What's interesting is that just about everybody agrees the statute, which was passed 153 years ago and has remained virtually unchanged since then, has long outlived its purpose. Back in the stagecoach days, the plaintiff had to get service within the statute of limitations, and only personal service was allowed. Now, a plaintiff has a year after the statute to perfect service, and if he sends it by certified mail and it gets returned unclaimed because the defendant happens to be vacationing in the Great Smokies, the plaintiff can simply send it out by ordinary mail, and service is perfected at that point as long as the letter doesn't come back.
Still, the statute says what it says, and the Supreme Court has held that it's up to the legislature to change it. Maybe they'll get around to it when they get done with the more important stuff, like designating the Official State Prehistoric Monument. In the meantime, if you blow a statute, just hope that the defendant liked to take vacations.
Last week, I mentioned that the Supreme Court's decision in State v. Foster had nullified the "second sentence" provided by Repeat Violent Offender and Major Drug Offender statutes. Under those statutes, the trial judge could sentence a defendant to the maximum for the base felony, then impose an additional 1 to 10 years on top of that.
Foster found no problem with imposing the maximum, but held that the additional sentence was barred. The reasoning was pretty simple. The statute permitted the court to impose more time only if it found both of the following:
(i) The terms so imposed are inadequate to punish the offender and protect the public from future crime, because the applicable factors under section 2929.12 of the Revised Code indicating a greater likelihood of recidivism outweigh the applicable factors under that section indicating a lesser likelihood of recidivism.
(ii) The terms so imposed are demeaning to the seriousness of the offense, because one or more of the factors under section 2929.12 of the Revised Code indicating that the offender's conduct is more serious than conduct normally constituting the offense are present, and they outweigh the applicable factors under that section indicating that the offender's conduct is less serious than conduct normally constituting the offense.
In short, the statute required a trial court to make "judicial findings of fact" before imposing the additional sentence, and thus violated Blakely.
Well, our legislature got to work and, on August 3, an amendment went into effect on RVO and MDO sentencing. The new statute gives the trial court five criteria that must be met before giving the additional time. Here are the last two:
(iv) The court finds that the prison terms imposed pursuant to division (D)(2)(a)(iii) of this section and, if applicable, division (D)(1) or (3) of this section are inadequate to punish the offender and protect the public from future crime, because the applicable factors under section 2929.12 of the Revised Code indicating a greater likelihood of recidivism outweigh the applicable factors under that section indicating a lesser likelihood of recidivism.
(v) The court finds that the prison terms imposed pursuant to division (D)(2)(a)(iii) of this section and, if applicable, division (D)(1) or (3) of this section are demeaning to the seriousness of the offense, because one or more of the factors under section 2929.12 of the Revised Code indicating that the offender's conduct is more serious than conduct normally constituting the offense are present, and they outweigh the applicable factors under that section indicating that the offender's conduct is less serious than conduct normally constituting the offense.
Now, maybe it's just me, but it seems that other than a few additional words which don't affect anything, the new section is pretty much the same as the version that the Supreme Court struck down. In fact, in the key parts, which I've bolded, they're identical: both require the judge, before imposing the enhancement, to find that the base sentence wasn't sufficient to protect the public, and that it demeaned the seriousness of the crime. If this didn't pass constitutional muster in February, it's pretty hard to see how the intervening time has changed anything.
Bottom line: the new statute is every bit as unconstitutional as the old one was. At least, the enhancement is. Keep in mind that the trial court can impose the maximum base sentence for the RVO or MDO spec without making any findings.
The excesses of the open and obvious doctrine were on display in the 1st District decision last week in Brant v. Meijer Co. The plaintiff had slipped and fallen on a puddle of water in a flower shop. The court held that the condition was "open and obvious," and thus affirmed summary judgment.
This is simply a horrible decision. On deposition, the plaintiff testified that the puddle of water was "clear," but that she could see it after she fell. The court used this to conclude that "it was visible to an ordinary observer looking directly where she was walking."
Well, that's nice, but about the only people I've ever seen walking around and looking down at the ground where they were going happened to be wearing four overcoats in the middle of August and mumbling about how they'd just seen Jesus get off the loop bus. Nobody normally -- or normal -- walks like that, and there's a whole boatload of cases saying that you don't have a duty to look down all the time, as this case, this one, and this one -- the latter a Supreme Court case, no less -- show. To top it off, in Brant reaching the "open and obvious" issue was totally unnecessary: the court noted that the plaintiff failed to prove that the storeowner had notice of the presence of the water, and could easily have decided the case on that basis.
Brant continues the unfortunate trend among appellate courts with respect to the "open and obvious" doctrine: the test becomes whether the condition was "observable." As the facts in Brant make clear, observing a clear water puddle on the floor is a lot easier when you're sitting there trying to figure out what you just slipped on. The test should be whether the object was discernible by the plaintiff through the use of ordinary care. Just because something could be seen doesn't mean it should have been seen.
What's more, Brant exposes some of the intellectual fault lines of the open and obvious doctrine. First, there's the matter of when is open and obvious a question of law, and when is it a question of fact? The difficulties are highlighted by this 2nd District opinion:
We agree that the existence of a duty is a question of law for a court to decide. As a result, whether a business owner owes a duty of care to protect customers against an open and obvious danger is for a court, not a jury, to resolve. Whether a given hazard is open and obvious, however, may involve a genuine issue of material fact, which a trier of fact must resolve.
To a certain extent, this doesn't make sense. "Whether a business owes a duty of care to protect customers against an open and obvious danger" isn't a question for anyone to resolve, at least in a particular case; it's already decided that he doesn't owe one. The real question is whether the particular hazard was open and obvious, and the doctrine itself provides little help in determining when that should be resolved by a court or by a jury. That's why you have one court reversing a summary judgment where the plaintiff slipped on a pallet in an aisle, and another court affirming it in virtually identical circumstances.
Which leads to the second problem: whether the plaintiff, in the exercise of reasonable care, should have observed and apprehended the hazard is obviously a question of negligence, but the entire open and obvious doctrine is predicated on the question of duty, that is, that the storeowner has no legal duty to protect customers from open and obvious hazard. That could be decided as a matter of comparative negligence -- whether plaintiff's negligence in failing to appreciate the hazard was greater than the storeowner's negligence in creating it -- but the doctrine doesn't allow that. From an analytical standpoint, you wind up comparing the negligence of the plaintiff to the duty of the storeowner, and that just doesn't work.
The motivation for the open and obvious doctrine is easy to discern: it is ridiculous for a plaintiff to recover for an injury which he could easily see and guard against. But given the current climate of personal injury law, why shouldn't juries be allowed to make those determinations, instead of judges? Is the judges' "gatekeeper" function really necessary? It's hard to imagine juries finding a plaintiff less than 50% negligent -- the cutoff for any recovery -- if the condition truly is open and obvious. Going back to handling this issue through a comparative negligence analysis would probably lead to the same results, would be more intellectually consistent and coherent, and would help restore courts and juries to the respective roles they were intended to perform.
The Supreme Court holds that home rule protected Cincinnati's law prohibiting automatic rifles capable of carrying more than 10 rounds, despite a state law that permits guns holding up to 31 rounds. The case revolved around the fact that state law had not specifically pre-empted municipalities in this regard, so it probably won't affect the latest effort by our lame-duck legislature, which does abolish local gun laws and, as I understand it, permits the use of Predator drones and uranium-depleted ammunition in state parks. On to the rest of the courts...
Criminal. Dueling Panels in the Districts: 8th District holds that "generally" serious physical harm is shown by fact that victim "sustained injuries necessitating medical treatment," but another panel holds that a sprain requiring wearing of a sprint does not establish serious physical harm, while one panel in 3rd District holds that crossing white line on right side of roadway is not evidence of traffic violation sufficient to justify stop, and another holds that it is... 9th District affirms trial court's refusal to grant mistrial because of sleeping juror...
Civil. Good discussion in this 9th District case about elements of negligent entrustment... 8th District rejects theory of negligent misrepresentation in employer-employee matters... Plaintiff died from auto accident and subsequent medical malpractice; 10th District holds that auto insurer not entitled to setoff of UM/UIM benefits for malpractice award... 6th District determines that party who was determined, 10 years after paternity finding, not to be father of child is not entitled to refund of child support paid... Sovereign immunity protects city from claim of negligent false arrest, rules 11th District...
Our "eeeeewww" moment this week comes courtesy of Burrows v. Marc Glassman, Inc., a case from the 8th District involving a slip and fall in the bathroom of a local Marc's Discount Store. The plaintiff's account of what happened is not for the squeamish:
At deposition, Burrows commented on the deplorable condition of the restroom. She said that the floor was filthy, the waste basket was overflowing with used hand towels, and there was water by the sink. She claimed that the floor was so grimy that her foot stuck to it as she walked across it. Despite all of this, she was at a loss to say exactly what she slipped on.
I don't know what she slipped on, either, and I don't want to guess. The court affirmed summary judgment on the grounds that her failure to identify the substance precluded her from making out a case of negligence, but as far as I'm concerned, the case could have been decided on the basis of express assumption of the risk. Frankly, just going into a Marc's requires all the courage I can muster; I'd rather walk the streets of Baghdad in a Mohammed cartoon t-shirt than venture into one of their bathrooms.
For those of you expecting the Weekly Roundup, that's moving to Mondays. The major reason is that the 8th District cases don't come down until Friday, so I can't include the most recent ones. Plus, that post takes longer than any of the others I do -- right now, it's early Thursday morning, and there have been over 100 court of appeals decisions handed down since last Thursday -- and it's easier for me to knock that out on a weekend.
Not sure whether to keep the name "Weekly Roundup," though; that seems a better title for a Friday wrap-up than a Monday. So I'm holding a contest to pick a new name for it. Email me your suggestions. The winner gets a free t-shirt with The Official Briefcase Motto: "Lawyers do it in their briefs."
Hmmm, there's an appealing visual, huh? Okay, let's get back to the law. One of the more confusing aspects of State v. Foster, which nullified parts of Ohio's sentencing scheme, was its handling of Repeat Violent Offender (RVO) and Major Drug Offender (MDO) specifications, which were contained at RC 2929.14(D)(2) and (3). Prior to Foster, if defendant was found guilty of an RVO or MDO specification, he was essentially subject to having his sentence doubled. One of the questions the Foster court had to resolve was whether this complied with the Supreme Court's ruling in Blakely v. Washington and its progeny, which held that sentences not based on findings made by a jury were unconstitutional.
The determination of whether a defendant was an RVO or MDO wasn't a problem; the latter was based solely upon the weight of the drugs, and the former upon whether the defendant had previously been convicted of a crime of violence that was a second degree felony or above. (The RVO spec could only be applied if the instant crime was also that type of offense.) It was the sentencing part that caused trouble. With an RVO spec, the court could give the defendant up to the maximum sentence (and had to max him out if the offense caused serious physical harm), and then could give him anywhere from 1 to 10 additional years if it found that the basic terms were "inadequate to protect the public" or "demeaned the seriousness of the offense." The MDO spec worked the same way: a base term of up to ten years if drugs were over a certain amount, and then 1 to 10 on top of that if the judge made the specified findings.
The Foster court found that the first part of the sentencing wasn't a problem, even the trial court's determination of physical harm: since there was nothing to prevent the court from handing down the maximum without that finding, the finding was essentially immaterial to the result, and didn't violate Blakely. The second part -- the imposition of the 1 to 10 additional years -- is where the law ran into difficulty, because it required "judicial factfinding" of the same sort that Foster ruled was impermissible in other contexts.
Does that mean RVO and MDO specs are dead? Well, as they say in the car commercial, "not exactly." First, there's no problem in the court imposing the maximum sentence; it's just the additional time that Foster bars. Second, the RVO and MDO specs have been resurrected in a new bill passed by the legislature which went into effect last August. I've got some serious problems with the new law, and I'll do a post next week going into that in more detail; I really don't see how they cure the problem identified in Foster. Like I said, though, I'll get into that next week.
One more thing: while before the RVO spec arguably did not apply to aggravated murder or other crimes involving life imprisonment, under the new statute it can be imposed for any crime where the sentence is not death or life without parole.
On Monday, I did a post on the increasing use of paramilitary police raids in America, as exemplified by the recent shooting of the 88-year-old woman in Atlanta. The site referenced a paper by Radley Balko of the Cato Institute. The Institute also has provided an interactive database, which can be found here, which allows you to check out reports of raids gone wrong by type of incident, year, and state, or a combination of all three. There've been several incidents over the past few years in Ohio, including this one near Dayton in 2002:
More than two dozen police officers emerge from from the nearby woods and swarm the farmhouse of Clayton Helriggle, 23, and his four roommates. The most experienced members of the team have less than four hours of tactical training, while others have never trained with the SWAT team before. The search is based on very little surveillance and tips from an informant, who is awaiting sentencing for more than a dozen crimes and would later be charged with lying to law enforcement officials.
Helriggle was shot and killed in the raid. The raid netted a little over an ounce of marijuana. One of the roommates commented that "it was nothing a good divorce lawyer couldn't have gotten us out on a misdemeanor."
Several lawyers raised questions to me about a statement I made in the Weekly Roundup last week about a case out of the 5th District which, I said, stood for the proposition that "a prosecutor can comment on defendant's failure to call witnesses." The case involved whether a particular witness had been called, and they thought my statement was a bit broad. As everybody knows, a prosecutor can't comment on a defendant's failure to testify, and they thought that a general statement by a prosecutor that the defendant hasn't called witnesses or presented evidence could be deemed as an impermissible comment on the defendant's exercise of his Fifth Amendment rights.
It's not. The case law is pretty clear that the prosecutor can make comments that the state's evidence is "uncontroverted" or that the defense hasn't presented any evidence to the contrary. The Supreme Court held that here, and there's a fuller discussion in this recent 4th District decision.
On the other hand, that's state case law. Since this is a Federal constitutional issue, it's not improper to cite Federal law, and this decision out of the 7th Circuit is a nice one to have in your trial law folder:
We have repeatedly recognized that indirect commentary on a defendant's failure to take the stand can also constitute a violation of the defendant's Fifth Amendment privilege not to testify. A prosecutor's comment that the government's evidence on an issue is 'uncontradicted,' 'undenied,' 'unrebutted,' 'undisputed,' etc., will be a violation of the defendant's Fifth Amendment rights if the only person who could have contradicted, denied, rebutted or disputed the government's evidence was the defendant himself.
Note that last line: it doesn't prohibit the state from making any comment about a failure to call witnesses, only when the defendant is the only witness who could've been called on the point. One more thing to keep in mind: it doesn't do you any good on appeal, at least in Cuyahoga County. The 8th District has specifically rejected this position, and this case. I'll do some checking to see if I can find any 6th Circuit cases on this, because it's still a Federal issue, and you might want to preserve it for that down the road.
Lastly, technology is proceeding apace at the Ohio Supreme Court. You can sign up for their case notification service here (you have to create an account), which allows you to specify which cases you're interested in tracking; the Court will send you notification whenever anything happens in the case, either by email or RSS (more on that in a minute). Second, all documents filed with the Supreme Court will be available on their site. That includes briefs. It'll take a while, but that should provide a valuable research tool.
Finally, you can get an RSS feed from the Supreme Court's website. Here's a good explanation of what RSS is, what benefits it provides, and how it works. The (real short) version is that instead of having to go to a website, you can just check your RSS reader and get a one or two-line synopsis of what's posted on the site, allowing you to decide whether to investigate further and read the whole thing. Sadly, the instructions posted on the Supreme Court's site on how to do this don't work, at least for Google. A better idea is just to click on this link, then paste it into your RSS reader. If you're using Internet Explorer 7, which you can download here, it comes with a built-in reader. By the way, this site also features an RSS feed. Click on the RSS link at the top right, and paste the resulting link into your reader. Again, if you have IE 7, you can skip that last step; it'll do it automatically.
It's relatively common for judges to order sex offenders to submit to regular lie detector exams as a condition of their probation. The legality of that was at issue last week in the Ohio Supreme Court case of In re D.S. The case answered some questions about the procedure, but left others unresolved.
Can this procedure be routinely ordered? Certainly not for juveniles. The Court was quite clear on that:
We are unpersuaded, however, that polygraphs should be used indiscriminately as a tool for juvenile community control. At the very least, before a polygraph can be considered to be a reasonable probationary condition there must be a showing that a polygraph is needed for therapeutic reasons in a particular case, that is, for the treatment and monitoring of the juvenile's behavior. The juvenile court judge may then select the condition on a case-by-case basis, based upon advice of a therapist or other relevant expert.
Noting that the probation department's recommendation of polygraph testing "was simply boilerplate language," and that "there is no evidence that it would serve as a therapeutic tool for him," the Court concluded that no specific need had been shown in this case.
What about adults? The Court took pains to note that it was dealing with a juvenile here -- an 11-year-old, learning-disabled juvenile at that. But it's not clear why adults should be treated any differently. The Court's distinction between adults and juveniles rested entirely upon the US Supreme Court's rationale for prohibiting capital punishment for juveniles. Putting juveniles to death and making them submit to lie detector examinations is not a comparison that is readily discernible, to put it mildly. In fact, the Court cites an adult felony case for the proposition that probation conditions should be tailored for the specific offense, so D.S. seems to offer a fairly good rationale for contesting the imposition of a polygraph examination as a routine condition for adult sex offenders as well.
What about the 5th Amendment? D.S. argued that the polygraph condition violated his rights against self-incrimination, but the Court fluffed that off. The case law is pretty clear that the state can't use the answers compelled by such a process against the defendant in a subsequent criminal case, or use his refusal to answer on 5th Amendment grounds as a basis for terminating probation. But there's a huge caveat here: the case cited for this, the US Supreme Court case of Minnesota v. Murphy, holds that such testimony can be used unless the defendant specifically invokes his right against self-incrimination. What's worse, the Court there specifically refused to apply the Miranda requirements because it deemed the setting "non-custodial."
This is bad law: it's hard to see how being in a police interrogation room is inherently more coercive than sitting with your probation officer in his office and having him demand you take a polygraph test after the judge has told you that not doing what the PO says gets you shipped to prison.
If you do run into this situation, though, there's a fallback: I found a 1985 case out of the 9th District which held that the defendant's probation couldn't be violated because of statements he'd made in his polygraph exam. The argument's actually based upon state law, which prohibits the use of lie detector evidence unless both sides stipulate, and notes the inherent unreliability of the polygraph. (It didn't hurt that the defense presented expert testimony that the test given in this case was bogus.)
When should this issue be raised? If the judge slaps on a requirement that the defendant submit to mandatory polygraph tests, it could be argued that you waive any complaint you have about that condition if you don't raise it at that time, and don't appeal it immediately. (The defense in D.S. did.) You should still be able to argue about the use of the evidence at a later time, and you may be able to go in and ask for a modification of the conditions after the sentencing. At the very least, you should advise your client in this situation that he has the right to refuse to take the polygraph.
A week ago I related the happy tale of the personal injury case in which Allstate had offered $6,300 to a plaintiff with $8,100 in medical specials, not even bothering to raise the ante when the plaintiff reduced his demand from $30,000 to $20,000 the week before trial, only to watch a jury traipse back into the courtroom and award the plaintiff $115,000, and then have the trial judge top that off with an award of $32,700 in prejudgment interest. Unfortunately, the grim realities of personal injury law are better captured by a trio of cases from other appellate districts over the past few weeks.
Faring worst of the lot was the plaintiff in Turner v. Nationwide, where the jury returned a verdict for plaintiff of zero dollars despite an admission of liability by the defendant. The amount of plaintiff's medical expenses aren't given in the opinion, but they certainly weren't insubstantial: the plaintiff claimed he needed two surgeries after the accident. The most interesting aspect of the case was plaintiff's argument that the jury's disregard of the medical bills required reversal because of RC 2317.421, which creates a prima facie presumption that medical bills in a personal injury action are reasonable. As the court pointed out, though, it doesn't create a presumption that the bills (and the treatment) are necessary, and in light of the plaintiff's extensive pre-accident medical history, the jury could have disregarded the expert testimony and concluded that the treatment wasn't in fact necessitated by the accident.
In personal injury cases, as in life, something's better than nothing, and that's especially true where the jury awards damages for medical expenses but nothing else, as happened in the 7th District case of Wines v. Flowers. The lower court had awarded a new trial, in reliance on the substantial case law that a new trial can be granted where "medical expenses are awarded in full but no damages are awarded for pain and suffering...." The plaintiffs claimed that the new trial should be limited to the question of pain and suffering, and not go back into the award of $5,113 in medical expenses. The appellate court reviewed the law, found cases going both ways -- some limiting the new trial to pain and suffering, others opening up the entire case -- concluded it was discretionary with the trial judge, and found no abuse of discretion.
The worst case of the bunch is Elwer v. Carrol's Corp., where the plaintiff had contracted e. coli at a Burger King. The jury returned with a verdict of $13,385.76, the exact amount of the medical bills. Upon being instructed to deliberate further on the amount of damages beyond the medical bills, the jury came back with an award of $13,400. The trial court refused to grant an additur, and the 3rd District affirmed.
It's not easy to justify that result. If the plaintiff wouldn't have been fairly compensated by an award of just her medical bills, it's hard to see how fair compensation is achieved simply by tossing her another fourteen bucks and change. The court stuck to a "bright-line" rule, though: awarding money for medical bills but zero for pain and suffering is wrong, but zero + one makes it all better.
A large part of the problem here may have been the plaintiff's decision to forego submitting a transcript of the trial as part of the record on appeal, and relying on a purely legal argument. That's understandable to an extent, because it can be made solely in legal terms. As a practical matter, though, I'd much rather have the appellate brief include a Statement of Facts regaling the appellate court with the testimony at trial explaining just how much fun an e. coli infestation is. If you're going to make an argument that $14.25 isn't reasonable compensation for something, showing exactly how bad that "something" was seems like a good idea.
Moral of the story: Your Mama was right when she said you should've gone into corporate law.
Two weeks ago, a SWAT team broke down the door of a house in a high-crime Atlanta neighborhood. It was the home of Kathryn Johnston, an 92-year-old so afraid of intruders that she required the neighbors who brought her groceries to leave them on the porch rather than enter the house. The police officers pried off her security door, and as they broke down the wooden door into the house, Johnston opened fire with a rusty revolver, striking three of them before they returned fire and killed her.
Normally, the police must knock and announce their presence before executing a search warrant. The warrant in Johnston's case contained a "no-knock" provision excusing this requirement. The sole basis for the warrant itself was the allegation that a "confidential informant" had purchased $50 worth of cocaine from a black male named "Sam" that afternoon. The only additional basis for the "no-knock" provision was the claim that the informant had told them that surveillance cameras were mounted around the outside of the house. This could have been confirmed prior to entry. Or disproved; no cameras in fact existed.
Neither did much of anything else. No one knows who "Sam" is or where he's gone. Only a small amount of marijuana was found in the house; no other drugs or drug paraphernalia, let alone the "computers and scales" which the warrant claimed were there, turned up. The informant now says that he never purchased drugs from the house. The police, who used his credibility to obtain the warrant, say he shouldn't be believed.
The real tragedy is that what happened here is not unusual by any stretch. Radley Balko of the libertarian Cato Institute has written a paper, Overkill: The Rise of Paramilitary Police Raids in America, which contends that as many as 40,000 of these no-knock drug raids take place every year, often with similarly tragic results. The paper can be downloaded here.
It's not a short read, just over 100 pages, but it's worthwhile. You'll get to meet people like Anthony Diotaiuto. Actually, you won't get to meet him. He's dead; after a police raid on his home based upon a single sale of an ounce of marijuana, the 23-year-old Diotaiuto's next stop was not the jailhouse, but the morgue, where the coroner extracted ten bullets from his body. The net result of the raid, besides a dead man whose prior record of violence and crime consisted of a marijuana possession charge at age 16, was the recovery of two ounces of the demon weed.
Edwin and Catherine Bernhardt fared better. The police broke down their door in a late-night raid, then threw the two of them to the floor and held them at gunpoint while the officers searched the house. Edwin had been nude, so the police made him wear a pair of his wife's panties. The couple was then taken to jail, and sat there for several hours until the police realized they had the wrong address.
All of this is made more interesting by the Supreme Court's decision this year in Hudson v. Michigan, where the Court voted 5-4 that the exclusionary rule would no longer be applied to violations of the knock and announce rule. The majority opinion, penned by Justice Scalia -- quelle surprise -- was rather dismissive of the interests protected by the rule, referring to them at one point as giving "the opportunity to collect oneself before answering the door" and at another as "the right not to be intruded upon in one's nightclothes."
Even before Hudson, the case law indicated a ready willingness of the courts to dispense with the knock and announce requirement, and to permit no-knock raids on the flimsiest of justifications. Initially, the knock and announce requirement, which predates the adoption of the 4th Amendment, could be excused only if there were "exigent circumstances," such as a dangerous defendant holed up, often with a hostage, in a situation where surprise might be necessary to capture him. The drug war led to relaxation of that rule; in 1995 the Supreme Court held that knock and announce wasn't necessary with if there was a danger that the drugs could be destroyed.
Oftentimes, not much more than that is offered as a rationale for seeking a no-knock warrant. That's not much of a standard; it's true of virtually every drug search. Sometimes the police offer the additional reason that there are known to be guns in the house. (Diotaiuto, for example, had a concealed weapons permit.) Actually, a no-knock raid in that situation can heighten the dangers to the police; as even the Hudson Court acknowledged, one of the reasons for the knock and announce rule is that "unannounced entry may provoke violence in supposed self-defense by the surprised resident."
The knock and announce requirement is not the only 4th Amendment casualty of our War on Drugs, now entering its fifth decade. Forfeiture laws have expanded greatly despite almost universal condemnation of their unfairness. Police regularly violate the privacy of drivers, pulling them over for traffic infractions which are acknowledged by everyone to be mere pretexts for fuller detentions and possibly searches. People in the inner city are routinely stopped and frisked.
It would seem that if we are going to further erode privacy concepts by allowing the police to storm our homes in combat gear, armed with assault weapons, we should reserve that for the most extreme situations: a history of violence by the resident of the home, or evidence of a large-scale drug operation. Permitting such raids on the sole basis of a single small drug purchase can only multiply the opportunities for the type of tragedy that played out in Atlanta.
The Ohio Supreme Court ruled on Wednesday that polygraph tests could not be routinely ordered as a condition of community control sanctions for juvenile sex offenders, and that there must be a showing of particularized need. The Court didn't reach the 5th Amendment issue of compelled testimony, and the applicability of the decision to adult sex offender cases is questionable: the case involved a learning-disabled 11-year-old, and the Court specifically distinguished that from situations involving adults. I'll have more on the decision next week. Now, on to the freightload of cases that have come down since I last did a Weekly Roundup two weeks ago.
8th District affirms trial court's ruling that arbitration provision in mortgage loan agreement doesn't apply; excellent discussion of when claim does not fall within purview of arbitration clause... 9th District affirms grant of custody to father; good review of law pertaining to requirements for award of custody to nonparent... 5th District holds that irrebuttable presumption of disclosed confidences requires disqualification of attorney from representing husband in post-decree child support matter where he represented wife in divorce... Reminder from 9th District that time for refiling after voluntary dismissal is one year from filing notice, not one year from when court journalizes filing... RC 2305.15(A), which tolls statute of limitations while defendant out of state, unconstitutional as applied to nonresidents, holds 2nd District...
8th District affirms trial court's grant of suppression motion, finding no basis for traffic stop; most notable aspect of case is that police officers agreed stop did not take place in "high crime" area... 10th District points out there's no Crawford violation in admission of social worker's hearsay testimony about what victim told her, when victim herself testifies at trial... 9th District upholds forcing defendant to trial without counsel where court had previously granted two day-of-trial continuances to allow defendant to obtain an attorney, and defendant filed third one day prior to trial... Trial court can't increase sentence above that originally imposed when finding defendant violated conditions of judicial release, 8th District rules... 5th District holds that prosecutor can comment on defendant's failure to call witnesses... Despite only small laceration to back of head, victim's severe headaches and disorientation sufficient to show serious physical harm for felonious assault conviction, rules 6th District... Excellent discussion of factors for granting new trial on basis of newly discovered evidence in this case by 1st District, reversing trial court's denial of motion...
You might want to check the docket sometime. Weird one out of the 8th District. A party files a mandamus action on October 3rd, asking the appellate court to order the trial judge to rule on a motion to vacate filed on March 29th. The court of appeals dismissed it as moot. Why? Because the trial judge ruled on the motion on April 12th, two weeks after it was filed.
Anybody want to guess what the ruling was? Bueller? Bueller? Anyone?
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