Anthony Ray Hinton is free at last after 30 years on death row

April 4, 2015

Anthony Ray Hinton is free at last after 30 years on death row. The Washington Post reports,

Anthony Ray Hinton was one of Alabama’s longest-serving death row inmates, having spent more than half his life incarcerated. Now, after three decades of insisting that he is innocent in the 1985 murders of two men, the 58-year-old Hinton is finally a free man.

“The sun does shine,” Hinton said just after his release from jail on Friday, according to AL.com.

His freedom came down to the same four bullets that put him in jail to begin with.

“I shouldn’t have (sat) on death row for 30 years,” he told reporters according to CNN. “All they had to do was to test the gun.”

He added: “Everybody that played a part in sending me to death row, you will answer to God.”

Hinton was convicted of two separate killings of restaurant workers — the Feb. 25, 1985, slaying of John Davidson, and the July 2, 1985, killing of Thomas Vason — even though there were no eyewitnesses linking Hinton to the crimes, no fingerprints linking him to the scene, and no other physical evidence except for the questionable link between a set of bullets and a gun found in Hinton’s home.

Subsequent tests of the only physical evidence in the case raised serious doubts about whether the weapon in Hinton’s home had fired those bullets — and it even called into question whether the bullets were all fired from the same gun.

Why was he convicted, you ask? His lawyer thought he was limited to spending $1,000 to hire an expert, so he hired a civil engineer who was blind in one eye, could not handle a microscope and did not know much about ballistics. Needless to say, he did not fare well on cross examination.

The United States Supreme Court (SCOTUS) unanimously vacated his conviction and death sentence last year and remanded the case to the trial court to hold a hearing to determine if his lawyer’s failure to provide effective assistance of counsel prejudiced his defense. He was granted a new trial and on Wednesday prosecutors filed a motion to dismiss the case on the ground that three ballistics experts could not link the bullets to the gun.

Thanks to one of my heroes, Bryan Stevenson, Anthony Ray Hinton is free at last.


Wrongful convictions of three innocent men 39 years ago in Ohio set aside

November 21, 2014

Friday, November 21, 2014

Good morning:

Good news today.

Professor Mark Godsey, Director of the Ohio Innocence Project at the University of Cincinnati College of Law, writes in today’s Huffington Post,

This morning, Ricky Jackson walked out of the Cuyahoga County courtroom in downtown Cleveland a free man after 39 years in prison–several of those on death row–for a murder he didn’t commit. The last time he tasted freedom was in 1975 when a postage stamp cost 10 cents, Gerald Ford was president, Pete Rose was the World Series MVP, Billie Jean King won Wimbledon, and Saturday Night Live had just premiered.

Jackson and his codefendants, Wiley and Ronnie Bridgeman, are black. They were convicted of murdering a white businessman named Harry Franks and sentenced to die in the electric chair in 1975. Their sentences were commuted to life in prison after the Supreme Court of the United States (SCOTUS) declared a similar Georgia death penalty statute unconstitutional.

Police misconduct caused their wrongful convictions. They terrified a 12-year-old boy, Ed Vernon, who initially lied to police claiming he witnessed the shooting when, in fact, he was a passenger in a school bus a couple of blocks away and did not see it. When he attempted to recant his statement, they screamed, threw objects at him and threatened to send his parents to prison for attempting to get him to change his story. He capitulated, testified in court and identified them as the killers.

Vernon recanted his story under oath in court last week and two witnesses who had been riding on the bus with Vernon that day testified that no one on the bus could have witnessed the murder because the location where it happened was not visible.

I suspect ineffective assistance of counsel played a role in the wrongful convictions because defense counsel should have assigned an investigator to check-out the scene and interview the school bus driver and all of the students on the bus before trial. If that had been done, defense counsel would have been able to impeach Vernon’s credibility and save their clients from death sentences and 39 years in prison.

For more information, go here.


Susan Mellen is free today after spending 17 years in prison for a murder she did not commit

October 11, 2014

Saturday, October 11, 2014

Good morning:

Free at last!

After serving 17 years in prison for a crime that she did not commit, Susan Mellen is free at last.

Corrina Knoll of the Los Angeles Times reports:

Superior Court Judge Mark S. Arnold said the trial had hinged on a single witness who was a “habitual liar” and claimed Mellen had confessed involvement in the crime. But jurors never learned that the witness’ sister, a Torrance police officer, believed she was a pathological liar or that Torrance police had several years earlier deemed the witness an “unreliable informant.”

The judge said Mellen had received “subpar representation” from a trial attorney who should have conducted a thorough investigation of the witness’ credibility.

“I believe that not only is Ms. Mellen not guilty, I believe based on what I’ve read, she’s innocent, and for that reason I believe the criminal justice system failed,” Arnold said.

“Thank you, your honor, thank you so much,” Mellen, 59, said in a small voice.

“Good luck,” the judge replied.

Mellen was convicted and sentenced to life in prison without parole in 1998 for soliciting the murder of a homeless man, Richard Daly, at a home in Lawndale, California where she and others were living at the time. Three gang members were subsequently linked to the murder and one of them was convicted of beating Daly to death. One of the others later passed a polygraph in which he admitted that he was present during the murder, but Susan Mellen was not there.

The three causes of this wrongful conviction are:

1) Jailhouse informant perjury;

2) Police and prosecutorial misconduct; and

3) Ineffective assistance of counsel.

The jailhouse informant or ‘snitch’ in this case was a woman named June Patti. People who work in the criminal justice system all know that jailhouse snitch testimony is inherently unreliable because they have powerful motives to lie in order to receive beneficial consequences lightening their load in return for their cooperation and testimony against a defendant. For this reason, I believe no conviction based solely on jailhouse snitch testimony should ever stand.

Mellen’s case is a perfect example of what can go wrong, if jailhouse snitch testimony is admitted to shore up a weak prosecution case.

June Patti testified that Susan Mellen admitted her guilt in the Daly murder while they were together in jail before Mellen’s trial. The lead investigator, LAPD Detective Marcella Winn, and the prosecutor who tried Susan Mellen should have known and likely knew that June Patti was an unreliable witness because she had a long history of providing false tips to law enforcement. For example, Patti’s sister, the Torrance police officer to whom Judge Arnold referred in his comment, now claims that she warned Detective Winn that June Patti was a pathological liar and several years before the murder a narcotics detective for the Torrance Police Department wrote a report in which he said Patti had provided a series of tips that turned out to false.

Police and prosecutors have a duty to investigate the reliability of an informant before putting her on the stand and risk convicting a potentially innocent defendant.

This information was exculpatory evidence that should have been obtained and disclosed to defense counsel before trial pursuant to Brady v. Maryland, and Giglio v. United States. Their failure to obtain and disclose this information to defense counsel was misconduct.

Finally, Mellen’s defense attorney compounded their misconduct by failing to investigate June Patti’s credibility. Her failure constitutes ineffective assistance of counsel.

I have often referred to defense counsel as liberty’s last guardian and that statement is certainly true in this case because Susan Mellen is free today due to the efforts of Deirdre O’Connor, an attorney who runs Innocence Matters, a nonprofit organization that represents wrongfully convicted innocent people.

Upon her release yesterday after serving 17 years in prison for a crime that she did not commit, she said,

I always forgave my enemies. Even your haters, you have to forgive them and sometimes thank them because they bring you closer to God.

For more information about June Patti’s pathological lying in Washington State after she left California, please go here.


Glen Ford is free at last after 30 years on death row

March 12, 2014

Wednesday, March 12, 2013

Good morning:

Glen Ford, 64, is a free man today after spending 30 years on death row in Louisiana for a murder he did not commit.

This awful case features police and prosecutorial misconduct, forensic fraud, lying witnesses and ineffective assistance of counsel.

The victim was Isadore Rozeman, 56, a watchmaker in Shreveport who was found shot to death behind the counter in his store. Mr. Ford worked for him occasionally doing yard work.

Police arrested Mr. Ford in November 1983 for possession of property stolen from Rozeman’s store. He was charged with the murder the following February together with George Starks, Henry Robinson and Jake Robinson.

The Death Penalty Information Center is reporting,

Prosecutors said they recently received “credible evidence” that Ford “was neither present at, nor a participant in, the robbery and murder” of which he was convicted in 1984. Ford, who has always maintained his innocence, was tried and sentenced to death by an all-white jury. One of the witnesses against him said at trial that police had helped her make up her story. A state “expert” who testified about the victim’s time of death had not even examined the body. Ford’s lead trial attorney had never tried a jury case before. A second attorney, two years out of law school, worked at an insurance defense firm. They failed to hire any experts to rebut the prosecution’s case because they believed they would have to pay for the experts themselves. The Louisiana Supreme Court earlier said it had “serious questions” about the outcome of the trial, but did not reverse Ford’s conviction. Ford may have been involved in trying to pawn jewelry from the victim that he received from one of the original codefendants.

USA Today is reporting,

Movement in Ford’s decades-old case began last year when Caddo Parish prosecutors began filing motions in federal court indicating someone other than Ford had confessed to being Rozeman’s killer. The court documents indicate a confidential informant questioned in an unrelated homicide identified Jake Robinson, one of four men initially charged in Rozeman’s murder, as the triggerman, not Ford.

Few other details were provided until Thursday, when the motion spurring Ford’s release plainly stated that if the new evidence had been known when Ford went to trial the outcome would have been different. “Indeed, if the information had been within the knowledge of the state, Glenn Ford might not even have been arrested or indicted for this offense,” the motion states

There were no eyewitnesses to the crime and the murder weapon was never found. The prosecution’s most important witness was a woman named Marvella Brown. The Atlantic reports,

With all signs pointing to the Robinsons, and with police under the impression that the one or both of the brothers still possessed the murder weapon, Ford was not immediately charged with Rozeman’s murder. He and the two Robinsons were instead charged three months later—only after Jake Robinson’s girlfriend, Marvella Brown, incriminated them by telling the police that Ford was with the Robinsons, and in the possession of a firearm, on the day of Rozeman’s murder.

/snip/

Under cross-examination, however, she told jurors that the police had helped her make up the story she had told about Ford. When Ford’s attorneys later called her to the witness stand, she told jurors that a bullet left from an old gunshot wound to her head had affected her thinking. “I did lie to the Court… I lied about it all,” she said in court.

The all-white jury took less than 3 hours to convict Mr. Ford and it subsequently recommended a death sentence.

There were no blacks on the jury because the prosecution used a peremptory challenge to strike the only one from the jury, a practice condemned by the United States Supreme Court (SCOTUS) in Batson v. Kentucky, 476 U.S. 79 (1986).

Pursuant to Louisiana law, Mr. Ford will receive some financial compensation for being incarcerated for 30 years. The law requires the state to pay $25,000 per year of wrongful incarceration up to a maximum of $250,000 plus up to $80,000 for loss of life opportunities.

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This is our 930th post and donations are lagging. We work hard to keep you informed by filling in the blanks between the lines. After 30 years in the trenches, I am familiar with all of the rules and strategies prosecutors and defense counsel utilize. Experience counts and most of my predictions have been accurate.

Adjusting and fine tuning to dial in the white fear and racist corruption frequencies in the Florida courts took some doing, but I am on track now.

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Zimmerman: The defense must retain its own experts

May 5, 2013

Sunday, May 5, 2013

Good morning:

Amsterdam1234 provided the inspiration for this post with this comment:

@xena

About the contents of Trayvon’s phone. I listened very carefully to what was requested by the defense, and how the state responded to the requests concerning data on Trayvon’s phone.

The state gave defense 2 reports that listed some information found on Trayvon’s phone. They also gave all the raw data they were able to retrieve, to the defense.

During the hearing West was whining about not being able to read the data without special software. That defense team is an embarrasment. It is very obvious they haven’t hired a forensic digital data expert yet, and they are hoping to find out what was on that phone through the state’s forensic analysis of the data.

Bernie said “we’ve given them the data in the format they requested it, they can hire their own expert to analyze it.

Maybe one of you legal minds can explain what is work product and what is discovery that needs to be given to the defense.

For the following reasons, I believe the defense is committing malpractice by not employing its own team of experts to review all of the raw data and bench notes generated by the State’s experts.

The defense asked the State to turn over the raw data generated by all of the State’s experts and I believe the State has complied with that request.

This was an appropriate request that I would have made.

I specialized in forensics and I was more interested in the raw data and bench notes rather than an expert’s opinion, or interpretation of the raw data, because I was used to seeing interpretations that conflicted with or were not supported by the raw data and bench notes. If the lawyer does not have the raw data and bench notes to compare to the expert’s report, the lawyer has no way of evaluating the accuracy of an expert’s conclusions.

Literally, an expert’s report is worthless without the raw data and bench notes to support it.

Since the vast majority of criminal defense lawyers do not know squat about science and forensics, they would have no idea how to interpret raw data and bench notes. Most do not even know what bench notes are.

Given the alarmingly high rate of forensic fraud in public and privately owned and operated crime labs in this country, I believe every criminal defense lawyer absolutely must have the assistance of their own experts to review all of the raw data and bench notes generated by the State’s experts. This is so important that I believe a criminal defense lawyer cannot provide effective assistance of counsel to a client unless he does so. In other words, the failure to do so would potentially constitute a Sixth Amendment violation pursuant to the test set forth in Strickland v. Washington, 466 US 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

I say, “potentially,” because counsel’s failure to secure the assistance of an expert would have to have materially affected the outcome of the trial. That is, that it is more probable than not that the jury verdict would have been different if defense counsel had retained an expert.

Murder trials differ significantly from regular criminal trials in many ways. One of the most significant differences is the prosecution’s heavy reliance on forensic evidence to prove its case. This heavy reliance means that the forensic evidence will almost always qualify as material evidence that more probably than not affects the outcome. For this reason, I believe a criminal defense lawyer commits malpractice in a murder case, if he does not retain experts to review all of the raw data and bench notes generated by the State’s experts.

That is the only way to effectively evaluate the validity of the conclusions and opinions expressed by the State’s experts. Asking them to interpret their own data is worthless because they are not going to admit that the raw data does not support their conclusions.

This is why I said the defense did the right thing by requesting the raw data.

Of course, it’s useless to them, if they do not know how to interpret it.

This is why the defense should have assembled its own team of experts last summer to review all of the raw data and bench notes generated by the State’s experts. Of course, the assistance of its own expert would ordinarily not be necessary, if the conclusions and opinions of the State’s expert are exculpatory.

However, the defense has no reason to believe that any of the State’s forensic evidence is exculpatory since Bernie de la Rionda did not advise the defense that it was. Therefore, the defense has to assume that the evidence is not exculpatory and this means that it must retain its own experts to review all of the raw data and bench notes generated by the State’s experts. Obviously, that includes the raw data retrieved from Trayvon’s phone.

For this reason, I consider West’s whiny request for assistance from the State in understanding the raw data on Trayvon’s phone to be an admission of malpractice.

Aside from ignorance, the obvious problem for the defense is lack of money. However, the defense created that problem by not setting aside sufficient funds for experts.

The solution is to admit the egregious and grossly negligent mistake and apply to the court for the relief that the defendant is entitled to pursuant to Ake v. Oklahoma, 470 US 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985). However, that would require a finding that the defendant is indigent. Apparently, he has too much pride to do that and his lawyers have too much pride to admit that they screwed up.

That brings us to where we are today, a little over 30 days before a murder trial with a stubborn defendant represented by two lawyers who do not know what they are doing.

Finally, Amsterdam1234 specifically asked about discovery violations.

The State has not committed a discovery violation and the defense should STFU and get its own expert instead of whining about not being able to comprehend the raw data retrieved from Trayvon’s phone.

_________________________________________________

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How and when to present an ineffective assistance of counsel claim

April 17, 2013

Wednesday, April 17, 2013

Good afternoon to all.

Searching Mind has asked a series of good questions in comments to my article yesterday regarding whether a defendant can raise an ineffective-assistance-of-counsel claim (IAC) on direct appeal. Xena also asked me to discuss the experts I would contact about the case. I will not identify anyone by name, but I will mention the subject matter that I would want to discuss with an expert suitably qualified in that area.

First, let’s take a look at whether an IAC claim can be raised on direct appeal.

I agree with Searching Mind that IAC claims can be raised on direct appeal, if the record unequivocally supports the claim such that there are no disputed material facts and therefore no need to remand the case to the trial court with instructions to conduct an evidentiary hearing to resolve disputed facts. This is equivalent to saying that the DCA can decide the issue as a matter of law on a set of undisputed facts.

This situation does not happen very often. For example, one of the elements of an IAC claim requires a defendant to plead and prove the standard of practice at the time the alleged error was committed by defense counsel. The defendant also must plead and prove that defense counsel violated that standard, that the violation was material and not merely a tactical decision. In most cases, the parties dispute one or more of those issues and the DCA cannot determine whether the defendant has a valid IAC claim by reviewing the transcript on appeal. The answer isn’t there.

Therefore, the rule is the DCA will not review an IAC claim on direct appeal when material facts are disputed, the answer is not in the record, and the disputed facts cannot be resolved without an evidentiary hearing.

Every rule has an exception and the exception to this rule is that the DCA will consider an IAC claim on direct appeal when there is no genuine dispute of material facts and the DCA can resolve the claim as a matter of law.

Now let’s take a look at the defendant’s case and assume that O’Mara does not file a motion asking Judge Nelson to find the defendant indigent and authorize the appointment and compensation at public expense of an investigator and such experts as may be reasonably necessary to assist defense counsel in presenting a defense.

Let’s further suppose that O’Mara does not call any expert witnesses and the jury convicts the defendant.

Can the DCA decide an IAC claim on direct appeal?

Answer: Probably not, because an evidentiary hearing would have to be conducted to determine if the outcome of the trial probably would have been different, if the defense had presented the testimony of certain expert witnesses, who I am assuming would exist for the purpose of this demonstration. The identities of those witnesses and their testimony would not become known unless habeas counsel did what O’Mara did not do.

Under this set of circumstances, the IAC claim would have to be raised in a state habeas petition after the conviction was affirmed on direct appeal. The habeas petition would be granted, if we assume for the sake of argument that the standard of practice would have been to obtain an order of indigency appointing experts at public expense, that expert testimony would have materially supported the defendant’s claim of self-defense and the defendant probably would have been acquitted if the experts had testified.

At this point there are too many unknowns to predict an outcome, except to say that a murder conviction appears likely, given the evidence that has been released to the public.

Now, let’s tackle Xena’s question about which experts I would consult, if I were representing the defendant.

I would consult with a pathologist to review the autopsy report and the AME’s findings regarding the entry wound, trajectory of the bullet, and the distance between the muzzle of the gun and the entry wound when the shot was fired. I also would discuss what the evidence shows relative to the positions of the victim and the shooter when the shooter fired the fatal shot. I also would want to know if the pathologist disagrees with anything in the autopsy report and whether the defendant’s statement to police describing the shooting is consistent or consistent with the autopsy report. Finally, I would ask about the length of time the victim would have remained conscious after the shot, whether he could have said anything, and positional asphyxiation as a contributing factor to cause of death.

I would want to consult with a firearms expert to discuss the weapon used, the fatal shot, and whether the defendant’s statement about how he fired the fatal shot is consistent with the evidence. I also would want to review the crime lab analyst’s report and bench notes regarding the bullet holes in the sweatshirts and whether they align with the entry wound.

I would follow Lonnie’s advice and look for a kinesiologist or someone in a related field to discuss the relative positions of shooter and victim when the fatal shot was fired.

Next up, I would want to discuss the defendant’s injuries with a trauma surgeon, blood spatter expert, and DNA expert.

Consulting with an expert on GPS tracking would be high on my list as would consulting with an audiologist about identifying the person who uttered the shriek.

I probably also would have the defendant undergo thorough psychological testing because I suspect he may suffer from some kind of organic brain disorder that may affect perception and functioning.

I probably would consult with other experts, but that is all that comes to mind right now. This post has reached 1,000 words, so I am going to wrap it up and reserve further discussion for the comments.

The steps I have described here regarding consultations with experts in a case like this are what I would consider to be the standard of the profession. A failure to pursue and document this line of inquiry would fall below the standard and constitute ineffective assistance of counsel. To establish a valid IAC claim, however, the defendant would still have to establish that the result of the trial would probably have been different if counsel had done these things, discovered material evidence in his favor, and presented it at trial.

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Combining the immunity hearing with the trial in the Zimmerman case is a terrible idea (Part II)

March 8, 2013

Friday, March 8, 2013

Good Afternoon:

I have done more research on the Florida SYG immunity hearing and concluded that the legislature intended that the hearing occur prior to trial. The Florida Supreme Court agrees.

The Florida legislature created confusion when it did not provide a procedure for asserting, litigating and deciding a defendant’s claim of immunity from criminal prosecution and civil liability under the SYG law.

In Dennis v. State, 51 So.3d 456, 462 (2010), the Florida Supreme Court stated,

While Florida law has long recognized that a defendant may argue as an affirmative defense at trial that his or her use of force was legally justified, section 776.032 contemplates that a defendant who establishes entitlement to the statutory immunity will not be subjected to trial. Section 776.032(1) expressly grants defendants a substantive right to not be arrested, detained, charged, or prosecuted as a result of the use of legally justified force. The statute does not merely provide that a defendant cannot be convicted as a result of legally justified force.

(Emphasis supplied)

In Dennis, the Court approved a procedure to conduct SYG immunity hearings developed by the trial court in Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008). That procedure requires the defendant to file a motion before trial requesting immunity pursuant to Rule 3.190(b).

In Peterson, the First District Court of Appeals set forth the procedure to be followed after the defendant files the motion to initiate the process. The Court said at pages 29-30:

In the absence of a procedure for handling these matters, we find guidance from the Colorado Supreme Court’s decision in People v. Guenther, 740 P.2d 971 (Colo. 1987). In that case, the court decided that Colorado’s similar immunity statute authorized a trial court to dismiss a criminal prosecution at the pretrial stage and did not merely create an affirmative defense for adjudication at trial. Id. at 976. The court further determined that a defendant raising the immunity would have the burden of establishing the factual prerequisites to the immunity claim by a preponderance of the evidence. Id. at 980. The court imposed the same burden of proof as it would in motions for postconviction relief or motions to suppress. Id.

(Emphasis supplied)

The immunity hearing would resemble a trial with four important exceptions:

(1) The order in which the parties present their respective cases would be reversed with the defendant going first,

(2) Rather than being presumed innocent with the right to remain silent and no obligation to testify, the defendant would have the burden of proof,

(3) The burden of proof would be by a preponderance of the evidence (i.e., more probable than not), and

(4) The judge would be the fact-finder and decide the outcome, instead of a jury.

Judge Nelson told Mark O’Mara that, if the defense wanted an immunity hearing, she wanted to hold it prior to trial sometime during the last two weeks of April. She reserved those two weeks for the hearing and told O’Mara to file an appropriate motion prior to that time, if the defendant decided to ask for one.

At the hearing on Tuesday, she asked him if he still wanted her to reserve those two weeks because she wanted to use that time to schedule other matters, if he did not intend to ask for a hearing, . He responded that he would not be asking for a hearing during those two weeks.

He added that he was not waiving the hearing; rather, he was considering “combining it with the trial.” She acknowledged that she understood he was not waiving the hearing. However, he did not request and she did not agree to combine it with the trial. Whether she will agree to do so has yet to be decided.

O’Mara would have to file a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(b) asking her to combine the immunity hearing with the trial and she would have to grant his motion for that to occur.

I published a post here two days ago in which I explained why combining the two matters could create constitutional error resulting in a reversal and remand for a new trial, if Judge Nelson denies the motion for immunity and the jury convicts the defendant.

There is little point to having an immunity hearing, if it is going to be combined with a trial at the risk of injecting constitutional error into the trial that requires convictions to be reversed and remanded for a new trial.

Finally, please know that I made a mistake in some comments earlier this week when I said Florida has a rule that requires immunity hearings to be held no later than 45 days before trial. Florida does not have such a rule. I recalled Judge Nelson’s statement that she wanted to schedule an immunity hearing not less than 45 days before the June 10 trial date, if the defense decided to request one, and mistakenly assumed there was a 45-day rule. I realized my mistake while researching to write this article. I apologize for any confusion that might have caused.

I note parenthetically that Florida could use such a rule, but it’s up to the Florida Supreme Court to decide whether to promulgate one.

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