Jan. 22
USA:
US views on death penalty are softening
Gov. Markell made a commendable decision when he granted clemency to Robert
Gattis and I believe that most voters will support his decision. Opinion about
the death penalty is changing. People who followed events leading to the tragic
execution of Troy Davis have realized there are serious problems with the death
penalty system in this country. When you look at data about voter attitudes on
a tougher question than a commutation -- that is, repeal of the death penalty
-- the results might surprise you.
In a 2010 poll of 1,500 registered voters by Lake Research Partners, 60 % of
participants from mid-Atlantic states with the death penalty said that it would
make no difference or that they would be more likely to support a candidate who
voted to repeal the death penalty. Only 28 %, a group predominately composed of
older conservative Republican men, said it would make them much less likely to
vote for that candidate.
In a 2011 poll, Gallup showed the lowest support for the death penalty in 39
years. And while that support is still high (61 %), when voters are given
alternatives, such as life in prison with or without parole and paying
restitution to murder victim's families, they flip and support by 61 % a life
sentence over execution.
Kathleen MacRae, Executive Director ACLU of Delaware, Wilmington
(source: Letter to the Editor, News Journal)
DELAWARE:
All death-row inmates say they're remorseful
Letters to the Editor
In response to a recent letter published about Gov. Markell commuting Robert
Gattis's death sentence, I just couldn't believe what I was reading. How can
the writer say that "Gattis has proven himself to be rehabilitated and
profoundly remorseful"? Don't all inmates say they are remorseful and
rehabilitated after incarceration? Has the letter writer sat and talked with
him, maybe held his hand and said, "There, there, everyone knows your sorry"?
What would the writer's opinion be if he had killed one of the writer's
children or a loved one? I'm sure it wouldn't read the same as the letter did.
I think it's a shame that Gov. Markell commuted his execution.
The taxpayers as a whole nationwide waste millions of dollars feeding and
housing death row inmates when a simple lethal injection or other means of
execution would suffice in a matter of minutes. I think there was a certain
comedian that once said we need to create a fast lane.
David M. Clark, Elkton, Md.
(source: Letter to the Editor, News Journal)
NEW MEXICO:
Governor seeks reinstatement of death penalty
Gov. Susana Martinez, a former district attorney, proposed Thursday that New
Mexico legislators consider a bill to reinstate the death penalty.
But the lawmaker most prominent in the repeal of capital punishment in New
Mexico said Martinez's idea would go nowhere.
"How many jobs is that bill going to create?" asked state Rep. Gail Chasey.
Chasey, D-Albuquerque, led a successful movement to repeal of the death penalty
in 2009. She said the economy should be the main focus of legislators during
this 30-day session.
Still, Chasey said she was not surprised by Martinez's message stating that she
would be receptive to a death penalty bill. But Chasey said such legislation
did not appear to be a priority for anyone, even the governor.
"She didn't even mention it in her (State of the State) speech," Chasey said.
New Mexico was the 15th state to outlaw capital punishment, though the repeal
was not retroactive. 2 men previously sentenced remain on death row.
Illinois became the most recent state to repeal the death penalty, doing so
last year.
As of Thursday night, no bill to revive capital punishment had been filed by a
New Mexico legislator.
Republican Rep. Dennis Kintigh, a retired FBI agent, carried a bill last year
to reinstate the death penalty. It failed in committee.
Another crime-related bill that Martinez said could be considered has more
momentum. It would require licensing of secondhand metal dealers.
A bipartisan trio from the House of Representatives - Democrats Brian Egolf and
Debbie Rodella and Republican Nate Gentry - were announced as the sponsors, but
the bill had not been made public as of Thursday night.
Executives at companies such as CenturyLink have asked for a bill to deter
thieves whose targets are brass, bronze, copper, metal beer kegs, catalytic
converters from automobiles and even manhole covers lifted from streets.
By estimate of the U.S. Department of Homeland Security, criminals who steal
metals are costing New Mexico businesses $1.5 million every month.
Thieves who regularly swiped copper cable from CenturyLink business sites in
New Mexico cost the telecommunications company about $1 million last year, said
Leo Baca, a lobbyist for CenturyLink, who testified before legislators last
month.
Various legislators want to attack the problem by increasing government
scrutiny on secondhand metal dealers, who might buy metals from people off the
streets.
The lawmakers' theory is that tighter regulation of these businesses may
discourage thieves from stealing metals in the first place.
A different bill to regulate secondhand metal businesses was carried last year
by Sen. Steve Neville, R-Aztec. It cleared the Senate on a 33-4 vote, but died
in the House of Representatives.
Small businessmen who sell metal opposed the bill, saying they were already
regulated sufficiently.
(source: Las Cruces Sun-News)
***************
Death penalty push unwise
Gov. Susana Martinez this week called for reinstatement of the death penalty.
Neither her friends nor her foes was surprised.
Martinez, 52, is an ambitious Republican who used to be a prosecutor. Capital
punishment fits into her political platform, though she did not pursue a death
sentence in the most notorious case she prosecuted -- the rape and murder of
Katie Sepich.
Martinez's interest in reviving death sentences did not create much anxiety for
a simple reason. It seems that everyone at the Capitol knows she has almost no
chance of succeeding.
Martinez's administration got nowhere on a death penalty bill last year, when
the Legislature met for 60 days. This year's session is 30 days.
Moreover, it was only three years ago that New Mexico legislators outlawed the
death penalty and then-Gov. Bill Richardson signed the bill. The worst
criminals now face a penalty of life in prison with no chance of parole.
Most of what has happened since shows that legislators and Richardson made good
decisions.
Death penalty prosecutions are costly. Appeals can last for decades. Worst of
all, police and prosecutors can be wrong in the biggest cases, even with
limitless government resources available to them.
Money should not be the primary consideration in this debate, but the truth is
that states are struggling and death-penalty prosecutions are the most
expensive cases of all.
I spent many of my years in newspapering in Pennsylvania, then home of the most
famous death-row inmate in the world, Mumia Abu-Jamal.
He murdered Philadelphia police officer Daniel Faulkner in 1981, was convicted
the next year and sentenced to death.
29 years passed and Abu-Jamal was still appealing his sentence. The
commonwealth spent millions trying to execute him.
Finally, last month, the Philadelphia district attorney decided to drop the
death penalty against Abu-Jamal.
He now is facing what may be a more painful punishment -- life without parole.
No longer a candidate for a death sentence, Abu-Jamal has lost his status as a
celebrity inmate.
His supporters such as actors Ed Asner and Susan Sarandon have no cause left to
fight. Abu-Jamal's fame will turn to infamy.
Good. That is as it should be.
The other even more troubling side of the death penalty is that police and
prosecutors can -- and have -- pursued and convicted innocent people.
Just last year, Arkansas set free the West Memphis 3. They are men now in their
30s who were convicted of killing three 8-year-old boys in 1993. One of the 3
defendants was on death row.
The investigation of the West Memphis 3 was distinguished only by the
ineptitude and dishonesty of small-town police detectives.
Prosecutors, eager to solve a triple murder that shocked the state, blindly
went along with the police theory that 3 teenagers who listened to heavy-metal
music must be the killers.
The state had no physical evidence against the 3, but detectives concocted a
smoking gun.
They were able, after much deception, to obtain a confession from 1 of the 3,
Jessie Misskelley Jr. He had an IQ of 70 and was terrified. Misskelley
implicated the other 2.
He soon recanted, but by then the locomotive of injustice was barreling toward
convictions.
Unscrupulous detectives stole 18 years from 3 innocent men. If the detectives
had their way, the state would have killed 1 of them.
A documentary, "Paradise Lost: The Child Murders at Robin Hood Hills," exposed
flaws in the state's case. It created enough interest to motivate people to
fight for the West Memphis 3 until they walked free.
Somebody -- probably more than 1 person -- got away with murder in West
Memphis. But police and prosecutors no longer are interested.
To find the real killers would be an open admission that they bungled the
biggest responsibility of their lives, a death-penalty case.
(source: El Paso Times)
SOUTH DAKOTA:
Attorney general argues for limits on death penalty appeals
Justice delayed, Peggy and Ed Schaeffer would tell you, is a car in a cemetery,
tears falling and a grave nearby with a casket inside it but no real sense of
finality.
It’s a death sentence unserved for almost 20 years because of maneuvering and
appeals “that make it seem like a game with a rubber ball that just keeps
bouncing from area to area, with the ball ending nowhere,” Peggy Schaeffer told
a Senate Judiciary Committee hearing Thursday in Pierre.
The game needs to end sooner rather than later, the Schaeffers told lawmakers.
Charles Rhines admitted to killing their son, Donnivan, on March 8, 1992, in a
Rapid City doughnut shop robbery. Now he is manipulating the appeals process to
escape his punishment, they insist. Apparently, state Attorney General Marty
Jackley agrees.
South Dakota’s top prosecutor has introduced Senate Bill 42, an attempt to curb
what he calls frivolous and repetitive delays at the back end of the state’s
criminal justice system. Patterned after similar federal law, Jackley’s bill
puts a cap on how often indigent defendants can argue that their
court-appointed lawyers are ineffective, and the time frame in which they can
make that claim.
It is legislation, defense lawyers and law professors counter, that is an
assault on individual constitutional rights.
Jackley’s bill passed 5-1 out of the Judiciary Committee after it was amended
to give defendants 2 years after their direct appeal to the state Supreme Court
to argue ineffective counsel and make other claims. Jackley first had wanted
the statute of limitation at 1 year, as it is at the federal level. The
proposal also was amended to allow claims to be made after 2 years if new
evidence arises or if changes to constitutional law would affect the conviction
and sentence.
It now goes to the full state Senate.
One shot to prove ineffective counsel
At issue are post-conviction proceedings called “habeas corpus” — Latin for “to
present the body.” After a trial, conviction, sentencing and direct appeal to
the state Supreme Court, defendants have the right through habeas corpus to
argue before a judge that they were wrongly incarcerated because of ineffective
or incompetent legal counsel and other claims.
Jackley said defendants should have 1 shot during habeas proceedings to claim
that their trial or appellate lawyers were ineffective, and shouldn’t be
allowed to claim their habeas lawyers are incompetent as well. He also wants
habeas claims made in a more timely fashion
“Reasonable defense lawyers say this makes sense,” the attorney general said.
“Claiming 3 lawyers are being ineffective. ... your trial counsel, your
appellate counsel and your habeas lawyer ... the question then becomes, ‘Are
there that many bad lawyers in South Dakota?’
“The ultimate question in my mind is, ‘Do we have a problem in South Dakota
where we have three lawyers that are all ineffective?’ Is that a reoccurring
incident, or are we just chasing ghosts, delaying and stalling proceedings?”
2-year period satisfies defense lawyers
While defense lawyers seem amenable to improvements, they’re not lining up yet
behind this proposal, said Lindsey Riter-Rapp, a Pierre lawyer and lobbyist for
the state Association of Criminal Defense Lawyers.
Riter-Rapp said her group could accept a 2-year period for habeus corpus
action, which is the same amount of time defendants have to come in after they
have been convicted and ask for a modification of their sentence.
Defense lawyers also were glad to see protections added to the proposal to
allow for a habeas action to come after the 2-year period if new evidence
arises, or if a Supreme Court ruling changes a law affecting a defendant’s
case.
But Riter-Rapp and others are particularly troubled by Jackley’s insistence on
limiting defendants to 1 habeas action questioning the effectiveness of their
trial or appellate lawyers. They’re also bothered by language that gives judges
discretion in deciding whether to appoint counsel for a post-conviction claim.
Donald E. Wilkes Jr., a professor at the University of Georgia School of Law
for 40 years and author of 5 books on post-conviction remedies, said more than
30 states have enacted similar time restraints since the federal law was
enacted in 1996. But few states are removing a statutory right to counsel in
post-conviction proceedings as Jackley is seeking.
"This is very unwise public policy,” he said. “People who are in prison are
from lower socioeconomic classes. They don’t have good educations. Many have
mental problems. They’re in no position to file or litigate post-conviction
proceedings by themselves, and I don’t think judges want them to.”
Jackley argued that giving judges discretion to appoint counsel would help
eliminate frivolous claims. But Wilkes said most states already have statutes
or judicial decisions that allow for the dismissal of frivolous actions.
“All of the people who practice post-conviction litigation agree that indigents
in prison need to have an appointed attorney to handle post-conviction
proceedings,” he said. “The only segment that opposes it are the police and the
prosecutors.”
Sioux Falls lawyer Steve Miller testified at Thursday’s hearing that it’s
common for lawyers just out of law school to take court appointments on habeas
cases while trying to establish a practice. To the extent that inexperience
causes them to miss protections in the Constitution at trial or on appeal, a
defendant should be able to question that habeas lawyer’s effectiveness, Miller
said.
“I see all the time young lawyers being assigned habeas corpus cases, and then
the judge calls me saying, ‘Steve, can you fix this?’ ” said Miller, who
characterized his practice as mainly appeals and habeas work. “If a habeas
lawyer is incompetent, and if in fact the Constitution is violated, I believe
the defendant ought to have a paper opportunity to claim that. If you pass this
legislation, it is a frontal assault on that.”
Jackley countered again that ineffectiveness at so many levels speaks to a
shortcoming in the criminal defense community in South Dakota that he doesn’t
think exists. Nor, he added, did state Supreme Court Justice John Konenkamp. He
broached the issue in a concurring opinion on a South Dakota case, Jackson v.
Weber.
“Justice Konenkamp, at the conclusion of his opinion, said it best,” Jackley
said. “He said, ‘We (in South Dakota) have a long and honorable tradition of
appointing only the most capable and experienced lawyers to represent criminal
defendants in capital and other serious cases. We should encourage that
tradition.”
Harder to get remedies, law professor says
So Jackley’s answer is to give defendants 1 shot at claiming their lawyers are
ineffective, and to do it within a limited time frame, Wilkes said.<
“Even though your constitutional rights were violated, even though you should
get a new trial or get new sentencing, you don’t get it because you were 1 day
late in filing your claim or someone decided you weren’t entitled to a lawyer,”
Wilkes said. “The whole purpose of legislation like this is to make it more
difficult for people whose rights were violated to get remedies they ought to
get under the Constitution.”
Among the interested parties at Thursday’s hearing on Jackley’s bill were the
Schaeffers. They testified about the toll that 20 years have taken on their
health as they wait for their son’s killer to be executed.
“We had no idea that perpetrators could have so many different lawyers,” Peggy
Schaeffer said. “They have all needed time to review the case. During their
review time, some have gone on to different professions, thus leaving another
to be appointed and needing more review time. Then the time frame to send
information between lawyers isn’t done in a timely manner but is done on the
last day and hour possible.”
Before the hearing, Dottie Poage of Rapid City noted that 1 of 3 men convicted
of killing her son, Chester, in March 2000 near Spearfish is taking classes
through the mail while he sits on death row in Sioux Falls. Briley Piper
admitted to his role in the murder, but now is manipulating the system, Poage
said.
“Even if he gets an education, what the hell is he going to do with that?” she
said. “He’s using the system. He’s using his own mom to pay for his education
to manipulate the system, and the system is allowing him to do that. So yeah,
if the attorney general’s office can pass this bill, they’re helping me out by
getting justice resolved and putting an end to it.”
Jackley said a second motivation for this bill is to save taxpayers money spent
on frivolous claims. The Pennington County Commission voted 5-0 to support
Jackley’s bill, its vice chairman, Ken Davis said, having spent hundreds of
thousands of dollars to try to execute Rhines after he admitted to killing
Donnivan Schaeffer.
Similarly, Bob Ewing, chairman of the Lawrence County Commission, said his
county has spent $1 million on the prosecution of Piper.
“He’s never maintained any innocence whatsoever,” Ewing said. “I don’t disagree
with the appeals system; I know it was put in place in case somebody innocent
was sentenced to life or the death penalty. But here is an individual who never
maintained any innocence whatsoever, and it just keeps going and going. I think
it’s very unfair that the taxpayers have to keep picking up the bill on this.”
****
Habeas corpus bill
Senate Bill 42, introduced at the request of Attorney General Marty Jackley,
was passed out of the state Senate Judiciary Committee on a 5-1 vote Thursday.
It now goes to the full Senate. Having been amended before passage, it now
would:
Create a 2-year statute of limitations for people to bring a writ of habeas
corpus and claim, among other things, that they had ineffective counsel.
Modify mandatory court-appointed counsel provisions to allow judges to decide
whether a habeas corpus claim requires the appointment of counsel.
Introduce provisions to prevent repetitive moves by defendants to argue that
their lawyers were ineffective.
************************
Public defender dismissed amid murder cases----Veteran lawyer Larson bumped at
critical time
Dwight Ree could spend his entire adult life in prison if he’s convicted of
murder.
James McVay could be executed.
The dismissal of a veteran public defender a little more than a month ago
leaves both men to fight those ultimate penalties in court without the aid of
their primary and most familiar advocate.
The ouster of Jeff Larson could have far-reaching implications for McVay, Ree
and the dozens of others the 57-year-old represented when he found his things
piled up outside the door of the public defender office the week of Dec. 12.
It also indirectly could affect hundreds of other defendants because the young
lawyers he worked with no longer will have Larson’s 30 years of experience to
guide them.
Representing clients in death penalty cases can be challenging and emotionally
taxing. Many states have strict requirements for public defenders, and many law
firms put only their most experienced lawyers on such cases. Asking less
experienced lawyers to take on the cases could slow the system and raise issues
about the quality of their defense.
Larson’s departure comes amid 6 unresolved homicide cases in Minnehaha County,
all of which are being defended with county resources, including the 2 death
penalty cases. It’s an unusually high number for the county. Before the murder
of Daphne Wright in 2006, there hadn’t been a murder eligible for the death
penalty in Minnehaha County for a decade.
County officials will not speak about the details of Larson’s dismissal,
calling it a personnel issue. They do say they are confident they can handle
the pending cases.
Traci Smith, who took over for Larson as public defender in 2005, would not
speak about the firing, but said her staff is qualified. Smith worked closely
with Larson of the Daphne Wright case, where Larson helped persuade jurors not
to execute Wright for killing Darlene VanderGiesen in 2006.
“Jeff is a brilliant attorney and has been a mentor to many young lawyers over
the years, including myself,” Smith wrote in an email Friday evening. “It is
unfortunate that this confidential personnel matter would make the public
question our ability to handle our cases. Any implication that our office isn’t
qualified to handle our present caseload would be inaccurate. I stand behind
the experience and knowledge of our 22 attorneys, who practice criminal defense
each and every day.”
Larson confirmed that he was dismissed and questioned whether the young lawyers
at the public defender’s office are better served without him, but he did
express confidence in the commitment of his former co-workers.
“Everybody’s concern in this is the well-being of the clients,” Larson said.
“As long as the clients are protected, the personalities involved are
secondary.”
The county’s hiring freeze won’t stop staffing for the public defender, said
Ken McFarland, Minnehaha County Commission administrative officer. Larson’s
position as chief deputy will be filled internally, he said. Commissioners
voted in December to authorize the hiring of a junior public defender to fill
the vacancy.
Heavy caseload
Like all public defenders in Minnehaha County, Larson had many clients. Last
week, Larson still was listed as the attorney of record for 220 case files as
old as 1986. Thirty-five of the cases were opened last year.
Many of the cases are classified as active only because of unpaid fines, parole
revocation or outstanding warrants. Some involve serious felonies, however.
Larson’s departure means the most for the 3 homicide cases he had open. 2 of
them involved a possible death sentence.
Rodney Berget, 49, asked that Larson to stay on his case, and he accepted. He’s
representing Berget without pay.
The county has hired private lawyer and former public defender Cheri
Scharffenberg to assist him. She will be paid an hourly fee for her work in the
run-up to the weeklong sentence hearing that begins Jan. 30.
Ree’s case is being handled by Angel Runnels and Nicole Laughlin, who have
about seven years of combined experience as public defenders.
Ree, 18, admitted to beating 20-year-old Geu Ayuel to death with a rock last
summer. He was 17 at the time but charged as an adult with 1st-degree murder.
The week Larson left, he and Runnels spent 2 days in court arguing that Ree’s
case belonged in juvenile court. Had they succeeded, Ree would have been placed
in the juvenile system and released at age 21. Instead, he faces a mandatory
life sentence without the possibility of parole.
As of Friday, McVay’s lawyer was Michelle Thomas, a 9-year veteran who had been
Larson’s co-counsel.
No delays have been requested in that case.
McVay told detectives in Wisconsin he killed 75-year-old Maybelle Schein of
Sioux Falls as part of a plot to kill President Obama.
He tried to plead guilty but mentally ill shortly after Larson was removed from
the case, but Judge Peter Lieberman wants to hear testimony from a psychiatrist
first.
Minnehaha County State’s Attorney Aaron McGowan intends to seek the death
penalty.
Capital case stress
Each capital murder case has 2 phases. In the 1st, a jury decides the facts,
then a judge or jury decides between execution or life without parole. Either
way, the penalty is final, said John Mathias, co-chairman of the steering
committee for the American Bar Association’s Death Penalty Representation
Project
. “These are the 2 harshest penalties society can impose on a person: A natural
death in prison or death by execution,” Mathias said.
In Larson’s 2 death penalty cases, both men have pleaded or intend to plead
guilty. That removes the stress of the 1st half of a trial, but Mathias said
the 2nd half is critical and tends to be underworked in comparison to the facts
of the case.
Police detectives, state criminologists, prosecutors and legal experts all line
up to prove the elements of the crime, then line up again to prove the
convicted person needs to die for committing it, said Jeff Cole, who
represented Ethan Johns in a 2009 capital case out of Turner County.
The defendant has a legal team responsible for hiring experts, presenting facts
that contradict the state’s case and later turning over every stone to
re-construct a client’s life for jurors during the penalty phase.
“When you have someone else’s life in your hands, the pressure is enormous,”
Cole said. “These are cases where the entire state of South Dakota and all its
resources are against you.”
Johns eventually pleaded guilty to 2nd-degree murder and is serving life
without parole.
Experience required
The American Bar Association also has recommendations for what constitutes a
well-qualified death penalty lawyer. Other states have qualifying
organizations.
In Illinois, where Mathias practices, there’s a group called the Capital
Litigation Trial Bar with standards so strict that Mathias himself didn’t meet
the initial requirements for membership. Despite decades on the job, he had to
prove his qualifications, he said.
“Our Supreme Court made the decision that going in, they want everyone facing
the death penalty to have qualified counsel,” Mathias said. “We can’t assume
that someone will get a fair trial in an adversarial system if you don’t have
top-flight athletes on either side.”
Public defenders are some of the most well-qualified lawyers in the country,
Mathias said, but they need resources to do the job correctly in big cases. Too
often, he said, they can be bogged down with additional casework.
No one in the Los Angeles County Public Defender’s Office takes on the lead
role in a capital case unless they have at least 15 years experience as a
lawyer, California defense lawyer Andrew Thorpe said.
Thorpe is the special circumstance coordinator for that office, which has more
than 800 lawyers on the payroll.
Thorpe agrees that the sentencing phase of a capital case requires serious
research to reconstruct a defendant’s life.
“Some of these stories are enough to make you cry,” Thorpe said. “I was in a
meeting a few days ago where we left thinking, ‘He was shot in the face at age
7, and things went downhill from there.’ We were making light of it, but these
can be really sad.”
South Dakota does not have any set standards for death penalty lawyers, Smith
said. There aren’t many death penalty cases tried in the state in general.
However, Smith said, the lawyers in her office are better equipped than most to
handle them.
“Our current staff has been involved in the defense of these types of cases, as
well as provided advice and guidance to other defense attorneys in the region
on the death penalty,” Smith wrote. “The essence of a good attorney is not only
their expertise, but their passion and dedication.”
Mentorship question
The dearth of capital murder experience statewide is part of what made Larson
so useful to young public defenders. Thorpe talked up the role mentorship plays
in his own office, saying each veteran becomes an invaluable resource for
newcomers.
It’s a role many said Larson took seriously.
Sonny Walter, a private defense lawyer who worked with Larson at the public
defender’s officer in early 1990s, said his former colleague has the respect of
his peers for his service, intellect and dedication.
“He’s one of the best criminal defense lawyers in the state of South Dakota,
and I don’t think you’d find anybody who would debate me on that,” Walter said.
Jason Adams also worked with and learned from Larson. The Sioux Falls lawyer
helped Larson and Smith defend Daphne Wright and said Larson taught the young
lawyers at the public defender’s office how to advocate for clients.
“It was the little things I learned from him, like how to treat clients,” Adams
said. “He’d always want you to think about things from a client’s perspective.
If someone is in jail and you’re assigned a case, you need to get over there
right away so they know you’re on their side.”
Former Commissioner Carol Twedt was shocked to hear news of Larson’s firing
last month.
Larson was fired a few weeks shy of his 30th anniversary.
“He was the public defender in the county for so long,” Twedt said. “I always
thought he would retire out of that office.”
(source for both: Argus Leader)
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