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?