Monday, July 30, 2012

Construction Worker Falls Down Elevator Shaft at Fordham Law School Jobsite in NYC | Digital Wires from | News McGraw-Hill Construction

Construction Worker Falls Down Elevator Shaft at Fordham Law School Jobsite in NYC | Digital Wires from | News McGraw-Hill Construction: The New York Post 
By Antonio Antenucci ; Jessica  Simeone; Larry Celona 

Preliminary reports are that the worker was wearing a harness which was not properly fastened.  The New York City Buildings Department has imposed a full stop work order at the site.  It issued three violations against the construction manager, Gotham Construction, which is responsible for safety under state and federal law. 
A hardhat barely survived a 75-foot plunge down an elevator shaft July 16 at the construction site of Fordham Law's new law school and dormitory complex. Anastassios Intzeyiannis, 41, was doing masonry work at 158 W. 62nd St. shortly after 11 a.m. when he lost his balance."

Mr. Intezeyiannis died on July 26, leaving his wife of two years Randi Intezeyiannis.  Rev. Joseph McShane, S.J. President of the University issued a statement mourning the worker's death.  A memorial service is planned by the University. 

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Blake's Jerusalem sung at Olympic Opening Ceremony

William Blake was, as Van Morrison sings, an enemy of empiricism, the atomic and nuclear age.  The rhetorical question "Was Jerusalem builded here among these dark satanic mills?" made his great poem Jerusalem the Labor Party anthem.  So it was a delight to learn it had been sung by a boy in the opening ceremony of the London Olympics.  That version is not yet available, so here is another.

Sunday, July 29, 2012

Louisiana - P.D.'s turn down 400 felony cases

As we near the 50th anniversary of Gideon v. Wainwright public defenders across the country are struggling with inadequate funds in an adverse economic environment due to state austerity budgets. The latest is in Cacasieu County, Louisiana. The PDO there announced "Beginning today, the office will withdraw from about 400 felony conflict cases to which it is currently appointed and work with the judges to assign new counsel from the private bar. "  The consequence of the shift from full-time public defenders to assigned private counsel is often dire.  PD's have demonstrably superior results compared to assigned counsel. - GWCh/t John Steele, Legal Ethics Forum
BATON ROUGE – On Friday, July 27, 2012, the Calcasieu Public Defenders' Office ("PDO"), which serves the 14th Judicial District, will be forced to implement a restriction of services due to funding shortfalls. The right to counsel is guaranteed by the U.S. and Louisiana Constitutions.
LPDB received only 80% of its FY 13 budget request. While the Legislature did approve a modest increase in assessed special court fees (Act 578), the bill was opposed by the Louisiana District Attorneys Association, and the fee was reduced by half, from a $20 increase to a $10 increase, in response. As a result, Act 578 no longer produces enough revenue to avoid service restrictions in all districts. The Calcasieu PDO projects that the passage of Act 578 reduced its FY 13 budget shortfall from more than $450,000 to $240,000.
The LPDB Restriction of Services Protocol (promulgated March 20, 2012) requires that public defenders' offices restrict services in the manner least harmful to the continuation of public defense services within the district. The Calcasieu PDO, with approval from LPDB, has determined that the least impactful service restriction involves reducing the number of attorneys with whom it contracts to represent conflict clients from six attorneys to two. Beginning today, the office will withdraw from about 400 felony conflict cases to which it is currently appointed and work with the judges to assign new counsel from the private bar. Moving forward, the office will identify new counsel for conflict cases when the remaining two felony conflict attorneys have reached ethical workload limits. The private bar's contributions are pro bono; there are no funds to compensate attorneys for their direct representation.
The Calcasieu PDO's two remaining conflict attorneys will handle the most serious of the felony conflict cases appointed to their office per established protocol, and the remaining cases will be assigned to the private bar. The Calcasieu PDO will provide training, resources and other appropriate support to attorneys from the local bar who are appointed to represent eligible indigent clients, but who may not be particularly familiar with criminal law.
Since early spring, the Calcasieu PDO has communicated its anticipated funding shortfall to its criminal justice agency partners and has been working closely with the judiciary in the district to ensure that the service restriction is managed effectively. In early 2012, the office made a number of other internal office changes to slow its expenditures, including a hiring freeze, salary freeze, moving its offices to reduce its lease expenses, forgoing technology upgrades, and forcing staff to pay their own bar dues. The Calcasieu PDO has exhausted every effort to avoid appointments of the bar members, though the district public defender office, with support from LPDB, is aggressively pursuing additional revenues to ensure that the office's dependence on the private bar is as brief as possible.
The Calcasieu PDO is appointed to approximately 6,000 new cases each year. These cases are handled by 15 full-time lawyers, 1 part-time lawyer, 3 full-time investigators and 8 support staff. The Calcasieu PDO is currently under class-action litigation alleging the unconstitutional assistance of counsel (Anderson v. State) and is the second office in the state to be forced to restrict services in 2012 due to inadequate funds.

Friday, July 27, 2012

Medicaid saves lives, Supreme Court undermines Medicaid expansion

Chief Justice John Roberts, backed by Justices Elena Kagan and Stephen Breyer, reached one appalling conclusion in NFIB v. Sebelius:  that the federal government's ability to provide for the general welfare is sharply limited.  It may not require states to provide Medicaid health insurance to those at up to 133% of the federal poverty line.  Governors like Paul LePage of Maine who practice the "why should I pay for your health care" politics of resentment have made grandstanding statements that they will not expand medicaid, or even drop out entirely, as did Rick Perry of Texas.
The Republican governors stance is particularly appalling in light of the Harvard School of Public Health's newly published study showing that Medicaid expansion to cover childless adults in Mississippi and Maine has already markedly improved the health of its beneficiaries. The authors conclude:
Medicaid expansions were associated with a significant reduction in adjusted all-cause mortality (a relative reduction of 6.1%). Mortality reductions were greatest among older adults, nonwhites, and residents of poorer counties. Expansions increased Medicaid coverage, decreased rates of uninsurance, decreased rates of delayed care because of costs , and increased rates of self-reported health status of “excellent” or “very good”
Profs. Timothy Jost and Sara Rosenbaum explain in an accompanying op-ed in the New England Journal of Medicine that
the Medicaid expansions are accompanied by 100% federal funding for the first 3 years, phasing down to 90% by 2020. The ACA offers no other means for covering adults with incomes below 100% of the poverty level. Resisting states effectively intensify the huge uncompensated care burden faced by their hospitals, deprive other health care industry players of important revenues, and keep their medically underserved communities from receiving an enormous economic infusion. Indeed, there is good evidence that overall, the changes in Medicaid will save, rather than cost, money.5 And residents of states that do not expand will still be paying federal taxes to cover the expansion in states that do expand.
Given the clear language of the Court's decision, the July 10 letter [from the Department of Health and Human Services] permits states to decide whether to accept funding to support the Medicaid expansion for newly eligible adults as a group or to reject it and with it hundreds of billions of dollars in much-needed federal assistance.
But some states may press the administration to interpret the expansion as a simple state option, allowing them to cover some portion of the expansion group and not others. This approach has no support in the law and would invite states to leave the most vulnerable members of the expansion group — adults without children — exposed to the worst sort of discriminatory exclusion. The administration may be pressured to enter into negotiations with each state, using its waiver authority. The ACA specifically amended the Medicaid waiver process to ensure that it was used for genuine research, not political horse trading. One can only hope that the states will come to their senses and we all will be spared the spectacle of federal and state governments struggling over the lives and health of the poorest among us.

Tuesday, July 24, 2012

Lazy mendacity watch: Romney said what? - Jonathan Bernstein

Lazy mendacity watch: Romney said what? - PostPartisan - The Washington Post
By Jonathan Bernstein 
Mitt Romney really dropped some whoppers in his conversation with Larry Kudlow on CNBC today. Ready? First: It’s one thing to argue that the stimulus didn’t work; granted, it goes against the consensus of economists, but there’s nothing particularly dishonest about that. But to pretend that there was no stimulus at all? That Obama simply ignored the economy in his first months of office? Here’s Romney:
"Well, I think the president made an error coming into office and deciding that the economy would take care of itself and he focused his energy on a series of liberal plans that he and his friends have been working on for years; take over the health care industry, a massive regulation of financial services in this country, trying to impose unions where employees don't want them, a new energy policy, slowing down the leasing of federal lands for the production of oil and gas."
What Romney said the president did do goes from questionable to outright false: Calling the Affordable Care Act a takeover of the health-care industry gets it wrong, and the president (much to the dismay of labor) did not devote any energy to changing union rules — while the idea that Dodd-Frank constitutes “deciding that the economy would take care of itself” is, well, odd indeed. But forget all that: Romney is here flat-out lying about what Obama actually did coming into office, which was to propose a massive stimulus bill.

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THE NEXT DEBT CRISIS: Educational Debt « The Belly of the Beast

The bill for the epochal shift to students of the cost of post-high school graduation is not just coming due - it is mounting.  Even land-grant colleges - a great democratic initiative - have gotten pricey.  And the farther down the chain you go the poorer the prospects for those who incur educational debt.  Now even the top of the chain- law school - is showing that the price of anti-tax sentiment is too high to be born by most law graduates. - GWC
THE NEXT DEBT CRISIS « The Belly of the Beast
by Steven J. Harper
"One of the next big bubbles is educational debt. A recent article in The New York Times notes that it exceeds one trillion dollars — more than total consumer credit card debt. Meanwhile, according to The Wall Street Journal, the Federal Reserve Bank of New York reports that for those aged 40 to 49, the percentage of educational debt on which no payment has been made for at least 90 days has risen to almost 12 percent. Sadly, history will view these as the good old days."

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Pennsylvania admits: no cases of voter fraud

Viviette Applewhite - plaintiff

It has become an article of modern conservative faith that Democrats are practitioners of voter fraud.  This presumably happens in those reputedly late reporting Democratic (and Black) precincts of Chicago, Philadelphia, and other cities.  Thirty years ago when James Florio ran for Governor of New Jersey the Republican National Committee tapped a racist Newark pol Anthony Imperiale to organize a "ballot security task force" to suppress the Black vote.  That yielded a permanent injunction against the RNC issued by federal District Judge Dickinson Debevoise.  The consent order was recently upheld by the Third Circuit Court of Appeals.
The most recent efforts to hold down urban votes are legislative voter ID requirements.  In the ACLU's lawsuit challenge to Pennsyvania's law, Applewhite v. Commonwealth of Pennsylvania, the state has now admitted in a stipulation that it knows of no cases of fraudulent voting - not in Pennsylania, not anywhere.

NJ Supreme Court Blocks Law Increasing Judges Pension and Health Benefit Contributions

New Jersey, like most states, responded to the protracted recession by cutting expenses.  The Democrat-controlled legislature, spurred by the voluble Governor Chris Christie, increased pension and health benefit contributions for all public employees. When the Assignment Judge in Trenton  accepted a state constitutional challenge by a sitting trial judge Christie erupted.  He denounced it as a self-serving act by "432 cliquey judges".  The State Supreme Court certified the appeal, bypassing the Appellate Division.  Now by a 3-2 vote (with Chief Justice Stuart Rabner abstaining) the court in DePascale v. State of New Jersey, has upheld the challenge, relying on the 1947 Constitution which says that a judge's salary shall not be "diminished":

Chapter 78 increases the amount that all public employees must contribute to their pension and health care insurance plans.  That law does not discriminate between justices and judges and other public employees, but the State Constitution does.  The Framers of the Constitution prohibited the Legislature from diminishing the salaries of sitting justices and judges -- not other public employees.  The Framers did so to protect the independence of the judiciary and to ensure that it remained a separate and equal -- not subordinate -- branch of government.  
The Framers recognized the unique role that the judiciary plays in our tripartite form of government.  Because one of the core functions of the judiciary is to serve as the guardian of the fundamental rights of the people -- rights nshrined in the Constitution -- the judiciary, at times, must restrain legislative initiatives or executive actions that may threaten those rights and violate the Constitution.  By barring the 4Legislature and executive from diminishing the salaries of sitting justices and judges, the Framers intended to prevent those branches from placing a chokehold on the livelihood of jurists who might be required to oppose their actions.  The constitutional restraint on diminishing judicial salaries is not for the benefit of judges, but for the benefit of the public.  

Monday, July 23, 2012

Alex Cockburn - the great polemicist is dead

Alexander Cockburn
Alex Cockburn could write.  As he said, James Fallows notes, "I can write better than anyone who writes faster and faster than anyone who writes better."  Professional discipline and a preference for understatement make me no polemicist.  But the world needs them and Alexander Cockburn, son of the great Brit Red journalist Claud Cockburn, was a brilliant one.  During his Village Voice years I waited for the new issue, picked it up asap, and went straight for Cockburn.  
The English have been speaking English longer than we have and they write it better.  Alex skewered the hypocrisy of the cold warriors, the passivity of the Times, and the conniving of the war makers.  He was revolted by the hypocrisy of Christopher Hitchens who I also detested, with a brilliant obit that made the essential point: that Hitchens stood on its head the maxim "comfort the afflicted and afflict the comfortable"
He did not hesitate to name names when criticizing the Israeli occupation of the west bank, a font of rationalization that is still bearing bitter fruit for the Jewish national liberation movement.  Reagan's duplicity was a favorite target, especially during the Iran Contra eruption of lying and cheating.

Colin Moynihan at the Times, Michael Tomasky, Ed Kilgore, and, of course, James Fallows have all done well in their recollections.

Friday, July 20, 2012

PrawfsBlawg: In Praise of Praising Legal Aid Lawyers

PrawfsBlawg: In Praise of Praising Legal Aid Lawyers:
by Brooks Holland, Gonzaga Law School
"A brief essay on has made the rounds this week, In Praise of Legal Aid lawyers. The piece focuses on criminal defense legal aid lawyers, and why society should appreciate their work. The essay doesn't add anything too unfamiliar to this discussion. But it effectively and efficiently makes the case to both lawyers and non-lawyers for valuing public defenders--as evidence by all my current and former public defender friends on Facebook who posted and re-posted this link."

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Gun control after Colorado: will anyone have the courage to say it?

Site of the Aurora massacre

Many friends of mine "believe" in the right to have a gun.  It is a gut, somewhat paranoid, feeling of right.  Sometimes linked to self-defense, or protection from government tyranny.  But let's look at the odds.  How are they used?  Killing wives and girlfriends is at the top of the list, followed  by robberies and mass murders like the Dark Knight massacre in in Colorado.  The Supreme Court has bought into all of this.  Will anyone now have the courage to say it's madness and delusion?
The know-it-alls are already pronouncing the futility of law - that even the most restrictive gun laws would not have stopped this (let's name names: David Brooks and Eugene Volokh).  And there will be more massacres: the Brady campaign has this 62 page list of mass shootings since 1965 (not yet including Aurora).  Of course there are a lot of guns.  That doesn't mean that more guns don't add to the danger.  If a "well regulated militia is essential to the security of a free state" then where are the regulations?  Why assault weapons?  Why not limit purchases?  Why not ask why so many in America - and have the courage to give an honest answer?  Frankly I do not feel my freedom is enhanced by the fact that so many citizens have guns.
Update: The Monkey Cage cites a Gallup poll as evidence of declining gun ownership:

Tuesday, July 17, 2012

Trial Judge to Appeals Court - Review Me -

Earlier this year - in Lafler v. Cooper the Supreme Court observed that incompetent advice that led a defendant to spurn a plea offer entitled the now convicted criminal to a remedy. In Padilla v. Kentucky (2010) the court found that defendant was entitled to vacate his conviction because the "consequences of Padilla’s plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect." All this reflects the reality that prosecutors not judges effectively run the criminal courts. One of the most powerful wedges is insistence on the waiver of right of appeal as a condition of accceptance of a plea offer. The Times commented today on the excessive power that the practice places in the hands of prosecutors. - GWC

Trial Judge to Appeals Court - Review Me -
"Earlier this year, an opinion for the Supreme Court by Justice Anthony Kennedy noted a stunning and often overlooked reality of the American legal process: a vast majority of criminal cases — 97 percent of federal cases, 94 percent of state cases — are resolved by guilty pleas. “Criminal justice today,” he observed, “is for the most part a system of pleas, not a system of trials.” In this context, the recent rejection in a federal district court by Judge John Kane of a plea bargain deal between a defendant and federal prosecutors is truly startling. Judge Kane rejected the deal in part because the defendant waived his right to appeal to a higher court"
The Times editorialists observe further:
In a sample of almost 1,000 federal cases around the country, agreements included waivers about two-thirds of the time and more often in some places. Every federal appeals court has ruled that in general waivers are enforceable as part of the efficient administration of justice.
Some standard parts of waivers are outrageous, keeping defendants from appealing even if they become convinced that they received inadequate counsel to accept a defective plea agreement where the sentence was not lighter or where the prosecutor wrongly withheld evidence. Any defense lawyer or prosecutor who asks a defendant to sign a waiver ruling out appeals on those grounds is protecting himself.

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Monday, July 16, 2012

Five Delusions About Our Broken Politics - Thomas E. Mann & Norman J. Ornstein - The American Interest Magazine

Five Delusions About Our Broken Politics - Thomas E. Mann & Norman J. Ornstein - The American Interest Magazine: "Finding an American who does not think our politics are dysfunctional is much harder these days than finding Waldo. Approval of Congress hovers around 10 percent, limited, John McCain often jokes, to “paid staff and blood relatives.” Of course, Congress rarely enjoys a high approval rating, even when things are operating well. But to the two of us, with more than 42 years each of experience immersed in the corridors of Washington at both ends of Pennsylvania Avenue, this dysfunction is worse than we have ever seen it, and it is not limited to Capitol Hill. The partisan and ideological polarization from which we now suffer comes at a time when critical problems cry out for resolution, making for a particularly toxic mix. It is not going to be easy to find structural fixes to our problems because many of them flow from an increasingly corrosive culture, not just from institutional breakdowns.
We have many ideas for significant reforms and other changes, but before we can consider remedies for our political dysfunction, we need to rid ourselves of much seductive wishful thinking. Here are five bromides to avoid:"

The American Political System Will Correct Itself
Third Party to the Rescue
A Constitutional Amendment to Balance the Budget
Term Limits
Full Public Financing of Elections

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Torts Today: An Existential Crisis for Law Schools -

Torts Today: An Existential Crisis for Law Schools - 'via Blog this'

Sunday, July 15, 2012

Obama ad: Romney and America the Beautiful

I think this is a brilliant propaganda piece by the Obama campaign.  I suppose there will be criticism but not worth paying any mind.  (Compare Willie Horton and Swift Boating). - GWC

Wednesday, July 11, 2012

Federal Judge Richard Posner: The GOP Has Made Me Less Conservative : It's All Politics : NPR

Judge Richard Posner of the 7th U.S. Circuit Court of Appeals in Chicago.Judge Richard Posner's "law and economics" approach drives me nuts.  His "pragmatism" long struck me as valueless - and therefore arbitrary.  But lately he is making more sense.  Nina Totenberg reports.- GWC

by Nina Totenberg
 "Judge Richard Posner, a conservative on the 7th U.S. Circuit Court of Appeals in Chicago, has long been one of the nation's most respected and admired legal thinkers on the right. But in an interview with NPR, he expressed exasperation at the modern Republican Party, and confessed that he has become "less conservative" as a result." 'via Blog this'

Saturday, July 7, 2012

Roberts’ crafty victory - Koppelman -

The battle over the nature of the power of the federal governments is reaching an acute stage.  At issue is whether a conservative majority can impose southern 18th century conceptions of the power of the federal government.  Andrew Koppelman, in typically lucid fashion, explains that it is not the anti-labor Lochner Era but the Supreme Court's post Civil War betrayal of the federal power to overcome the effects of slavery that is the closest analogy of the now blunted conservative drive to declare unconstitutional the Obama health care reforms. - GWC

Roberts’ crafty victory -
by  Andrew Koppelman
Northwestern University Law School
"In the recent, extraordinary leak about the internal deliberations of the Supreme Court in the healthcare case, Jan Crawford reports (while leaving ambiguous whether this comes from her leakers) that Chief Justice Roberts was worried about the lack of existing doctrinal support in the challengers’ case. “To strike down the mandate as exceeding the Commerce Clause, the court would have to craft a new theory, which could have opened it up to criticism that it reached out to declare the president’s healthcare law unconstitutional. Roberts was willing to draw that line, but in a way that decided future cases, and not the massive healthcare case.”" 'via Blog this'

Monday, July 2, 2012

Cincinnati Judge rejects plea for more funds for capital defense

Average capital defense cost

The average taxpayer-funded cost to represent those charged in death-penalty cases in Hamilton County in Fiscal Years:

2006 – $15,112;
2007 – $23,111;
2008 – $24,918;
2009 – $32,196;
2010 – $14,630;
2011 – $20,553;
2012 – $16,760.

Source: Ohio Public Defender

Cincinnati civil rights lawyer Bob Newman is on a mission to increase funding for capital defense.  In Hamilton County, Ohio death penalty defense layers are paid$4/hour with a cap of $22,500.  Newman has gained the support of the Ohio Prosecutors Association but five judges have turned him down.

Judge orders defender aid - Luzerne County, PA

In April the ACLU filed suit on behalf of the Luzerne County Public Defender which had sharply limited its intake because of inadequate funding of indigent defense in the scandal-plagued Pennsylvania county. GWC
Judge orders defender aid: "WILKES-BARRE – Finding that the Luzerne County Public Defender’s office is “approaching crisis stage,” a county judge on Friday ordered the county to provide adequate funding, but he stopped short of dictating how much money or staff needs to be added. Senior Judge Joseph Augello also ordered Chief Public Defender Al Flora to immediately resume representing all indigent defendants who qualify, ending a policy Flora implemented in December that limited the types of cases the office accepted."

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Sunday, July 1, 2012

How Much Difference Does the Lawyer Make? The Effect of Defense Counsel on Murder Case Outcomes | RAND

My experience as a Public Defender pool attorney in Newark from 1979 - 1983 taught me that New Jersey's statewide, adequately funded Office of the Public Defender made the common view "get a lawyer not a public defender" a tragic error if acted upon.  The PD's astounding record in death penalty cases proved it beyond doubt.  [Of 228 death penalty trials (1982 - 2007) 60 were sentenced to death, 57 death sentences were reversed on appeal. 9 condemned men remained on death row when the Legislature’s Study commission recommended repeal in 2007. No one was executed from reinstatement to the day the Legislature repealed capital punishment in December 2007, replacing execution with life imprisonment without parole. See the 2008 symposium - `Legislation, Litigation, Reflection, and Repeal].  But that is isolated and anecdotal evidence.
The Rand Corporation authors systematically measure the difference in Philadelphia which has a perpetual contact with the Defenders Association of Philadelphia.  This makes the situation in Philadelphia much superior to the rest of Pennsylvania - the only one in the country to provide no state funding for indigent defense.  In the upcoming 50th Anniversary year of Gideon v. Wainwright we need to defend the defenders.  - GWC
h/t John Steele, Legal Ethics Forum
How Much Difference Does the Lawyer Make? The Effect of Defense Counsel on Murder Case Outcomes | RAND:
by James M. Anderson and Paul Heaton
One in five indigent murder defendants in Philadelphia are randomly assigned representation by public defenders while the remainder receive court-appointed private attorneys. The authors exploit this random assignment to measure how defense counsel affect murder case outcomes. Compared to appointed counsel, public defenders in Philadelphia reduce their clients' murder conviction rate by 19% and lower the probability that their clients receive a life sentence by 62%. Public defenders reduce overall expected time served in prison by 24%. 
They find no difference in the overall number of charges of which defendants are found guilty. When they apply methods used in past studies of the effect of counsel that did not use random assignment, they obtain far more modest estimated impacts, which suggests defendant sorting is an important confounder affecting past research. To understand possible explanations for the disparity in outcomes, they interviewed judges, public defenders, and attorneys who took appointments.
 Interviewees identified a variety of institutional factors in Philadelphia that decreased the likelihood that appointed counsel would prepare cases as well as the public defenders. The vast difference in outcomes for defendants assigned different counsel types raises important questions about the adequacy and fairness of the criminal justice system.

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