By Gretchen Schuldt A Milwaukee County Board committee on Tuesday unanimously recommended establishing a program to provide defense counsel to indigent defendants accused of violating county ordinances. The county pays for sheriff's deputies to write tickets, lawyers to prosecute the cases, and agencies to collect overdue payments of forfeitures levied as a result, Supervisor Joseph Czarnezki, a sponsor of the measure, told the Finance Committee. (Full disclosure: Czarnezki is a WJI Board member.) Yet defendants are expected to represent themselves, even if they don't understand what is going on in the courtroom or how to proceed. "This is not what I would call justice," Czarnezki said. Under the proposed 2022 budget amendment, co-sponsored by Supervisor Ryan Clancy, the corporation counsel's office would seek proposals for a contract attorney to represent the defendants. The $50,000 program would be a pilot, and data would be collected to help determine if it should be continued. The program would be patterned after one operated by Legal Action of Wisconsin that provides defense lawyers for indigent defendants in Milwaukee Municipal Court, which hears cases involving city ordinances. While indigent defendants in criminal cases are provided with publicly-funded lawyers, poor people accused of ordinance violations are not provided with lawyers because the violations are considered civil, not criminal, matters. Generally, those wanting legal representation ordinance cases must hire their own lawyers. State law mandates that people arrested for certain ordinance violations, such as controlled substance offenses or some gambling cases, have their personal and arrest information entered into the state's criminal database, where it is available to potential employers, colleges, landlords, or anyone else with the $7 fee to get it, Czarnezki said. While those who are never actually charged or who are acquitted can request that their information be removed from the database, most people don't know how to go about doing that. A lawyer, Czarnezki said, can help clients negotiate the court process. remind them about court dates, help them with payment plans, and help get records removed from the state database. As a matter of equity, he said, "I think this is something we should do." Clancy, who sponsored unsuccessful measures to reallocate some Sheriff's Department funding, said that having fewer deputies making arrests would be best, but the attorney resolution is "the second-best way to go."
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By Gretchen Schuldt A judge was correct in ordering a man to pay potentially tens of thousands of dollars in court surcharges for having child pornography images that were never included in criminal charges against him, the State Court of Appeals has ruled. The District IV Court of Appeals panel, however, sent the case back to circuit court to determine whether all of the pictures involved were actually associated with the crime for which William C. MacDonald was convicted. MacDonald pleaded guilty in Marquette County Circuit Court to one count of possessing child pornography. As part of the plea bargain, another nine counts, each based on an individual picture, were dismissed but read into the record. Read-in charges, Appellate Judge Jennifer E. Nashold wrote for the three-judge panel, are agreed to by both the prosecution and defense. A judge can consider the read-in charges when imposing sentence, though they do not increase the maximum sentence the defendant faces. A judge can also order a defendant to make restitution for read-in charges. Finally, prosecutors cannot later bring formal charges for counts read in. MacDonald's plea agreement said that "the State would be moving to dismiss and read in the rest of the charges...in addition to any uncharged image that was part of this investigation, so that the State will not be filing any additional charges for any other images, but we would be asking that they be read in as part of the sentencing in this matter." Circuit Judge Bernard N. Bult sentenced MacDonald to four years in prison and three years of extended supervision. He also levied mandatory $500 surcharges for the photo that was the basis of the charge, nine photos for the counts that were read in at sentencing, and 90 additional images that did not serve as the basis for a charge. The total in surcharges was $50,000 for 100 images. MacDonald, arguing that the surcharge should be limited to $500 for the one count on which he was convicted, requested in a post-trial motion that the surcharge be reduced, but another circuit judge, Mark T. Slate, refused. MacDonald appealed, but the appeal was put on hold while the state Supreme Court considered another case involving the child pornography surcharge. In that case, State v. Schmidt, the court ruled that the surcharge did apply to pictures included in read-in counts. MacDonald conceded the surcharge applied to the nine read-in counts, but continued to argue that the surcharge should not apply to counts that were not ever charged. The appeals panel disagreed. "We conclude that Schmidt does not directly answer this question but that, consistent with its analysis, the surcharge applies to read-in images regardless of whether there is an accompanying charge, so long as those images are 'associated with the crime,' ” Nashold wrote. State law, she said, does not limit read-in crimes to only those that were charged and dismissed. Nashold was joined in the opinion by Appellate Judges Brian W. Blanchard and Michael R. Fitzpatrick. In sentencing MacDonald, she said, Bult correctly noted that MacDonald's ability to pay the surcharge was not a factor. Bult imposed the surcharge on 100 images, though he believed there could be more pictures involved. "Read-ins may be considered for restitution and sentencing purposes regardless of whether they are uncharged or charged and dismissed. Thus, we discern no basis in the statutes or case law for a sentencing court to treat uncharged and read-in images differently from charged and read-in images for purposes of applying the surcharge," Nashold wrote. The panel, however, remanded the case back to circuit court for a judge to determine whether the images that formed the basis of the surcharges actually were "associated" with the crime for which MacDonald was convicted. State statute requires a judge to determine the "association" by a preponderance of evidence – a lower standard than that required for conviction – and without a jury. "Here, it does not appear that the sentencing court engaged in any fact-finding to determine the association, if any, between the 90 uncharged images and the image forming the basis of the count of conviction," Nashold wrote. By Gretchen Schuldt The Milwaukee County Sheriff's Department must turn over an old internal investigation file involving former Deputy Joel Streicher, who killed Milwaukee activist Ceasar Stinson after running a red light, the State Court of Appeals ruled Tuesday. Stinson's "estate asserts that the public has a strong interest in 'knowing when law enforcement officers have a history of violating an individual’s constitutional rights, and how the department handled the investigation of this constitutional violation,' " District I Court of Appeals Judge M. Joseph Donald wrote. "We agree." Donald was joined in his opinion by Appellate Judges Maxine A. White and William W. Brash III. The ruling reversed a decision by Milwaukee County Circuit Judge David C. Swanson, who said the records should not be released. Swanson, in balancing the public interest in disclosure against the public's interest in keeping the records confidential, said he “doesn’t see a strong public interest in disclosure,” Donald wrote. The appeals panel said the records need further redactions before they are released. Streicher, in a Sheriff's Department SUV, ran a red light on Jan. 25, 2020, and hit the vehicle Stinson, 47, was driving. Streicher was charged that May with homicide by negligent operation of a vehicle, pleaded guilty and, in a sentencing widely derided in the community, ordered by Circuit Judge Michelle Havas to serve six months in jail with work-release privileges and two years' probation. Havas later ordered Streicher to serve actual jail time after Stinson's widow, Chipo Samvura, complained that Streicher was serving his time at home with ankle bracelet. A few days after Streicher killed Stinson, who worked as a lobbyist for Milwaukee Public Schools, WISN-TV reporter Nick Bohr sought Streicher’s disciplinary records from the Sheriff's Department. Sheriff's Captain Jason Hodel reviewed the records and decided they should be released. Hodel notified Streicher of the decision, and told Streicher that personal information, such as his home address and email, had been redacted. Streicher and the Milwaukee Deputy Sheriffs' Association filed a lawsuit to block the release of the records. Afterwards, Samvura and Stinson's estate filed their own open records request and intervened in the TV station's case. In his ruling, Swanson found that internal affairs files were not exempt from release under the Open Records Law. The court, however blocked the release of the file related to an internal investigation of an improper home search in which Streicher was involved. "The circuit court began by observing that the internal affairs investigation was 13 years old, 'quite dated at this point,' and focused on 'an improper search of a residence,' which took place after police had seized 44 pounds of marijuana from a car," Donald said. "The court indicated that it was concerned about the references in the file related to the prosecutor’s case planning and that disclosing the file might 'endanger individuals who were involved in [the drug] investigation either as targets or as informers or both.' Thus, the court found that 'the balancing test weighs in favor of an injunction.' ” When the Stinson estate representative noted that names could be redacted from the report, Swanson said the names had been redacted from the file he reviewed, but it still was clear who was discussed. "The court stated that 'very significant' redactions would need to be made and 'they haven’t been made at this point,' ” Donald said. "The court also reiterated that its other concern was the references to the prosecutor’s case planning, which would also need to be redacted." In reversing Swanson, the appeals panel said the public had a strong interest in incidents where public officials were derelict in their duty. "Thus, here, where the police improperly entered a person’s home in the course of their investigation, the public has a compelling interest in accessing the documents relevant to the misconduct and the extent to which it was investigated," Donald wrote. Further redactions are needed before the report is released, he wrote, but "this does not justify the denial of the release of the entire file." "Streicher and MDSA point to the circuit court’s finding that Streicher’s role in the improper search was 'minor,' ” Donald wrote. "However, this should not be a shield by which the government can prevent disclosure....The public has a strong interest in being informed about its public officials and whether those officials have engaged in misconduct....These interests cannot be outweighed simply by the fact that an official played a minor role in an improper search." Cannabis production method targeted in legislation increasing penalties for dealing, possession10/4/2021 By Gretchen Schuldt Penalties for second-offense marijuana possession, already a felony, would increase substantially if butane extraction was used in the production process, under a bill making its way through the Legislature. Industry officials say that occasional users may have no clue how their product was processed, although frequent imbibers may be able to tell the difference by the taste. The maximum penalty for second-offense (or greater) possession now is 3½ years in prison and a $10,000 fine. Under the bill, the penalties for second-offense (or greater) marijuana would increase depending on the amount of butane-extracted cannabis involved. The amounts and maximum penalties would be:
The bill also would significantly increase the penalty for manufacturing, delivering, or selling any amount of butane-extracted cannabis. Currently, marijuana manufacturing and dealing carries different sentences depending on the amount involved. Under the bill, those crimes, regardless of amount, would be punishable by up to 15 years in prison and a $50,000 fine. That means a person could go potentially to prison for a very long stretch for sharing a gummy bear with a friend. Butane extraction is a common method of concentrating cannabis resin. Butane extraction can produce a THC concentration of up to 90%. The concentrate is used in a variety of products, including edibles and vaping juices. Commercial entities generally use a closed system of butane extraction, which is not considered an explosion hazard. Closed systems keep the butane from escaping into the atmosphere. Some processors, including those running clandestine labs, use an "open blasting" system that allows the butane to escape into the atmosphere, creating a danger of explosions. The pending bill does not differentiate between open and closed production methods used or whether any hazards are actually present. "This is a very misguided effort," said Bryce Brisbin, director of technical sales at Luna Technologies, a cannabis extraction company. Closed-system butane cannabis extraction is safe and provides a high-quality product, he said. "Open blasting should be banned, totally illegal," he said. "It's incredibly stupid." State Rep. Jesse James (R-Altoona), a sponsor of the legislation in the Assembly, said in prepared testimony last week that "The criminal elements and punishments of possessing, manufacturing, and delivery of BHO (butane honey oil) is the same as marijuana. I understand marijuana is needed to make BHO, but the process is making a totally different product, with a higher potency, which sells at a higher rate, putting the lives of those who manufacture it and others at risk." He acknowledged that the closed-loop system was generally more "safer, controlled, and effective" than the open blasting system. "The societal harms stemming from more prevalent and more potent cannabis is well-established in research exploring the effects on public safety and violent crime, traffic safety and the workforce," said State Sen. Duey Stroebel (R-Saukville), another sponsor. "The narrative surrounding the alleged medical benefits of cannabis tends to readily dismiss the aforementioned harms." By Gretchen Schuldt
The state's prison population is growing again after a long decline due to the COVID-19 pandemic. The number of adults incarcerated in state facilities declined to 19,381 on May 14, down significantly from the June 2019 level of almost 23,600 reported by the Wisconsin Policy Forum in its 2021-23 state budget brief. At the height of the outbreak DOC basically closed its doors to new inmates, shoving the problem of housing them downstream to local jails. And courts shut down or dramatically reduced operations, which also reduced the flow of inmates to prison. Then, this spring, prisons began accepting people again. The prison population ticked upward the week of May 21 and has increased every week since, according to Department of Corrections data. On Sept. 24, 20,132 people were incarcerated in the state's adult facilities. Current inmate numbers are likely to increase further as courts resume normal operations and more people are sentenced. By Gretchen Schuldt
Milwaukee police are still stopping Black and Hispanic people at a far higher rate than they stop White people, a new report shows. The same is true of police conducting field interviews and frisks. The disparities are getting worse, according to the ACLU of Wisconsin. The new report was prepared by the Crime and Justice Institute as a result of the 2018 settlement of a lawsuit by nine Black and Hispanic/Latino Milwaukee residents alleging that Milwaukee police unlawfully engaged in racially biased stop-and-frisk practices. The nine were represented by the ACLU of Wisconsin, national ACLU, and the law firm of Covington & Burling. As part of the settlement, the Police Department, the Fire and Police Commission, and the city agreed to undertake a number of reforms, including an end to race-based pedestrian and traffic stops. “We’re at a critical moment where the Milwaukee Police Department, three years into the settlement, has failed to achieve compliance for even a single year and continues to over police Black and Latinx people at an alarming, unacceptable, and worsening rate,” Karyn Rotker, senior staff attorney with the ACLU of Wisconsin, said in a prepared statement. “We are also deeply concerned by the lack of adequate supervision and discipline to impose the accountability that this agreement requires.” The Fire and Police Commission also issued a statement that said the city and police department have more work to do to comply with the settlement. "The FPC is fully committed to this essential work, as well as to exercising its critical oversight function to support MPD and hold the Department accountable to meet its settlement obligations," the commission said. The charts below are from the CJI's report. The full report is here. By Gretchen Schuldt Five judges from around the state are asking the Wisconsin Supreme Court to adopt a new rule restricting the use of shackles on juveniles in court. "Every weekday, children ages 10 to 17 are brought into Wisconsin juvenile courtrooms in shackles," a supporting memo filed with the petition says. "A few are shackled because a judge or court commissioner has found them likely to flee, or likely to be disruptive in the courtroom. But most are shackled simply because it is routine – sometimes based on a sheriff's policy, sometimes because it is the way it has always been done." Under the proposed new Supreme Court rule, children could not be restrained during a court proceeding unless a judge found one of the following:
Restraints use also would be limited to situations where there were no less restrictive alternatives "that will prevent flight or physical harm to the child or another person, including the presence of court personnel, law enforcement officers, or bailiffs," according to the petition.
The rule would prohibit use of restraints "that are fixed to a wall, floor, or furniture," the petition says. Submitting the petition were Milwaukee County Circuit Judge Laura Crivello, Eau Claire County Circuit Judge Michael A. Schumacher, La Crosse County Circuit Judge Ramona A. Gonzalez, Dane County Circuit Judge Everett Mitchell, and Marathon County Circuit Judge Suzanne C. O'Neill. Attorneys Diane R. Rondini and Eileen A. Hirsch also signed. "Some Wisconsin counties, including La Crosse, Eau Claire, Marathon, Milwaukee and Dane, have successfully implemented county-level juvenile court shackling rules that, like the proposed rule, establish a presumption against shackling, which can be overridden by a court finding, on the record, that the child is likely to flee, or to cause harm to self or others," Hirsch wrote in the supporting memo. "Approximately 20 additional counties rarely shackle children in court. However, at least 25 counties practice indiscriminate shackling of children in juvenile court." Thirty-three states and Washington, D.C. have implemented statewide presumptions against shackling children in court, though judges can order shackles when necessary, Hirsch wrote. The shame and humiliation that results from shackling "is especially damaging to adolescents, who are in the developmental process of forming their own identities and who are intensely concerned with how others perceive them," she said. Those emotions can lead to defensiveness, avoidance, and aggression, she said. Shackling can also hurt a child's ability to communicate with counsel. One assistant state public defender "described her shackled clients as being 'distracted and embarrassed...They crouch down. Sometimes they have to sign papers, but it's hard for them to sign with cuffs chained to their waists,' " Hirsch wrote. Another assistant public defender said "she has had 'numerous clients who are physically harmed by the use of shackles. I have seen red marks and indentations on my client's wrists and legs.' " Children with mental illness or a history of trauma suffer more harm from shackling, Hirsch said. Shackling can lead to worsening of symptoms and make daily functioning more difficult. Hirsch cited court decisions from around the country that limit juvenile shackling. "In each of these cases, the court concluded that a presumption against shackling during juvenile court proceedings is consistent with the rehabilitative purposes of the juvenile justice system," she said. The state Supreme Court has not yet set a public hearing date on the petition. Unsung hero: William T. Green, lawyer and activist, author of the state's first civil rights law9/8/2021 By Gretchen Schuldt Fewer than 30 years had passed since the end of the Civil War when Canadian-born William T. Green graduated from the University of Wisconsin Law School in 1892, one of the first Black people to do so. He was by then 31 or 32 years old. Law degree in hand, he settled in Milwaukee, where he became the city's first and only Black attorney. By that time, he already had authored the state's first civil rights bill. Green's enrollment in law school was fortuitous, according to a September 1893 Milwaukee Journal newspaper story. The short, one paragraph account announced a benefit for Green, "a colored lawyer of the city, who was stricken with paralysis some time ago." "Years ago he was an errand boy in Milwaukee, but later obtained a position about the state university building," the newspaper reported. "He was without money and although eager to learn was unable to provide himself with an education. One of the professors one day found him with his ear to the keyhole listening to a law lecture. Attracted by the lad's earnestness to learn the professor helped him through college and he graduated a year or two ago with high honors." Green, as a young man, watched as the country moved away from its commitment to civil rights. In 1883, the U.S. Supreme Court struck down a federal law prohibiting discrimination in public accommodations. The move had ramifications in Wisconsin. Black people were turned away from taverns and other public places; some attending a teachers' convention in Madison were not allowed to register at hotels, according to the summer 1966 issue of the Wisconsin Magazine of History.
The small Black population (304 people in 1880) began pushing for a state law that would do what federal law no longer did. Then in 1889, Owen Howell, a Black man, bought a ticket to a play. When he went to the Bijou Opera House in Milwaukee, he was denied his seat and an usher instead directed him to the gallery. Howell sued in Milwaukee County Circuit Court. Black leaders in the city, including Green, held a convention to show off their increasing political strength – the city's Black population was by then about 449 – and to push for a new civil rights league, which was indeed established. Green also helped organize a meeting to censure the Bijou's owner. The meeting drew about 75 people – about 17% of the city's Black population. Howell won his case and was awarded $100 and costs. Law student Green, meanwhile, was busy with his civil rights bill. It was drafted in late 1889, and introduced in January 1891 by a one-term legislator, Orren T. Williams. Republicans at the time were the advocates for civil rights. They also were in the legislative minority that term. The bill would have provided equal access to a variety of public accommodations, including restaurants, saloons, barber shops, theaters, and transportation conveyances. Violations would be punishable by fines of $25 to $500 and incarceration for up to one year. The debate in the Judiciary Committee was overtly racist. "Where is the man on this floor who will say the colored man is the equal of the white man?" Assemblyman John Winans asked. "God did not create them equal." First the bill was watered down. Then it was defeated. "Mr. Williams, who introduced it, wanted it killed because it had been limited to hotels and common carriers," The Milwaukee Journal reported. Defendant wins a habeas hearing; Seventh Circuit blasts state courts, attorney general's office8/22/2021 y Gretchen Schuldt A federal appeals court hammered the Wisconsin court system last week in a ruling that may finally provide a hearing to a man who has waited in vain for more than four years to get his appeal considered by a state court. Marvin Carter, the federal court said, can pursue his habeas corpus petition in federal court. "Though we recognize that state court remedies exist in theory in Wisconsin and should be available, the last four years have demonstrated that those remedies are, at least for Carter, inaccessible," U.S. Circuit Judge Michael Y. Scudder Jr. wrote. Carter "has weathered a ten-month transcript delay, three different public defenders, and 14 extension requests by counsel and the trial court itself," Scudder wrote. "At no point during these four years has a single court in Wisconsin ruled on the merits of Carter’s colorable challenge to his sentence. None of this is Carter’s fault." "Carter contends that state court remedies in Wisconsin are ineffective to protect his rights. We agree, for the facts in this case afford no other reasonable conclusion....The length of the delay should have sounded an alarm bell within the Wisconsin courts, the public defender’s office, and even the Attorney General’s office," Scudder said. Carter's experience in the state court system has been "extreme and tragic," Scudder wrote for the Seventh Circuit Court of Appeals panel. Circuit Judge Michael B. Brennan joined the opinion and Circuit Judge Frank H. Easterbrook concurred, saying the decision did not go far enough in some areas of analysis. Carter's odyssey began in 2016, when he was charged in Milwaukee County Circuit Court with possessing heroin, cocaine, and other drugs with intent to deliver and with felon in possession of a firearm. He reached a plea agreement in the middle of trial, agreeing to plead guilty to the heroin and gun charges. The district attorney's office agreed to recommend a six-year sentence. When sentencing time rolled around, though, Assistant District Attorney Laura Crivello (now a Milwaukee County circuit judge) retreated from the deal. She told the court: “In hindsight, I so wish we would have allowed this to proceed through to the end of the trial and let the jury make their verdict because then I would have had four counts on the table today.” Circuit Judge Janet Protasiewicz, instead of honoring the plea agreement, sentenced Carter to nine years, three more than agreed upon. It was 2017 by then. Carter tried to appeal, arguing that Crivello breached the plea agreement and that Protasaiewicz sentenced him based on inaccurate information, both violations of his 14th Amendment due process rights. Things went wrong almost from the beginning. Carter filed a notice of his intent to seek postconviction relief with the trial court well within the 20-day time limit. The state public defender's office assigned him a lawyer. "But stagnation soon followed," Scudder said. "The clerk and court reporter took 10 months to locate and share the trial transcripts that Carter’s counsel requested – a step that should have been completed within 60 days." Carter's lawyer, on the day the postconviction motion was due, asked for more time. "He explained that his heavy caseload prevented him from meeting with Carter or reviewing the case materials," Scudder said. The lawyer, Leon Todd, also asked for a retroactive extension of time to request certain transcripts. The state Court of Appeals granted both. (Full disclosure: Todd is a WJI Board member.) "With the benefit of hindsight, we now know that the delay for Carter was just beginning. Carter’s counsel followed his first request to extend the deadline to file the postconviction motion with a second. And a third. And a fourth," Scudder wrote. "This pattern continued for months, with Carter’s counsel filing a new extension request on each day the prior request was due to expire. By late 2019 – more than two years after Carter’s July 2017 conviction and sentence – counsel had filed seven requests to extend the motion deadline. The Wisconsin Court of Appeals granted each motion in rote fashion." "Wisconsin’s courts need to fix the systemic deficiency that has resulted in how Carter’s case has been treated, and become more transparent about how discretion is exercised, for the benefit of the parties, their counsel, other courts, and the public," – Seventh Circuit Court of Appeals Carter turned to federal court and filed a habeas corpus motion, a type of motion alleging that a person's incarceration violates the Constitution.
Another year passed before U.S. District Judge James D. Peterson issued a decision denying Carter's request. In it, Peterson recognized Carter's difficult position. "The delay in Carter’s postconviction or appellate process is inordinate. It has been more than three years after his judgment of conviction, and his case has gone nowhere," Peterson wrote. Peterson told Carter to give the state courts one more chance, questioning whether the courts knew Carter "disapproves" of Todd's repeated requests for more time. "By our tally, then," Scudder wrote, "Carter’s counsel filed twelve consecutive extension requests, collectively pushing the deadline to file the motion to Nov. 24, 2020. And, as best we can tell, not once has the Wisconsin Court of Appeals – or any other Wisconsin court for that matter—recognized that Carter’s case has been stalled for over four years." By Gretchen Schuldt Gov. Tony Evers has signed into law tougher new penalties for crimes committed against anyone at least 60 years old. The bill also allows older people seeking domestic violence, individual-at-risk, or harassment restraining order to appear in a court hearing by telephone or through audiovisual means. Currently, people seeking restraining orders appear in court in person. “Aging and older Wisconsinites are particularly vulnerable to financial and physical abuse and exploitation, and unfortunately, we are seeing a devastating and concerning rise in these crimes,” Evers said. "This bill is an important bipartisan action to help put an end to elder abuse and protect some of our most vulnerable loved ones and neighbors.” Evers ran for office promising to reduce the prison population. Under the new law:
In the abuse category, there were 2,148 cases or calls about financial abuse, 717 about emotional abuse, 650 about physical abuse, 41 about sexual abuse, 14 about unreasonable confinement or restraint, and four about treatment without consent. Of all the reports, including those for neglect and self-neglect, more than half – 52.5% – were either unsubstantiated or unable to be substantiated. In another signing, Evers signed a bill that regulates police use of force. It creates standards for when police can use force, creates a duty to report improper use of force, and creates a duty to intervene or prevent improper use of force. vers vetoed a bill that would have reduced shared revenue payments to counties and municipalities that reduce police, firefighter, or emergency responder funding or personnel. |
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