Evidence Based Prosecution? - Unless Evidence is of Innocence in Assault

The Threshold for Arrest for Assault Charges is Small - But Now isn't the Time for Exculpatory Evidence - It's Easier Just to Make an Arrest and Issue an Order of Protection

If you were arrested for assault in the third degree in New York City, you may be astonished at how easy it was for you to be arrested and how very little the police seemed to care about actually investigating what happened or even talking to witnesses.  A recent assault in the third degree case of mine in New York City illustrated the upside down approach toward these types of cases.  

Initially, I will provide a little background on the way the system approaches assault cases in the domestic violence context, and then I will compare that approach to the approach of the system toward other assault cases such as this recent case of mine.  By comparison, you will begin to understand how upside down the system can be when pursing criminal cases, especially cases involving accusations of assault.

In the context of Domestic Violence cases, one of the buzz words in the world of Prosecutor Officers, including those in New York City, is "Evidence Based Prosecution".  In Domestic Violence cases, therefore, especially where a complaining witness has expressed a desire not to cooperate with the prosecution, the prosecutor offices will produce pictures of the complaining witness' injuries at the first appearance (arraignment) in Criminal Court.  These pictures, allegedly of the injuries sustained at the hands of the accused standing for the first time in court for arraignment, are point blank meant to influence the Judge in terms of either causing the Judge to set bail when bail might not have been set, or causing the Judge to set higher bail than the Judge would have been inclined to set.

In this context, the DA's Offices produce these pictures, in full color, and hand them up for the judge to see.  I have never seen a Judge decline to accept such pictures, claim that "now is not the appropriate time", or claim that "this is not the trial."  Quite the opposite.  The pictures naturally generate the expected responses of any empathetic person confronted with human injury and suffering.  And it is all perfectly acceptable, expected, and legally appropriate.

And so, having experienced prosecutors in countless domestic violence cases producing and presenting pictures to Judges at arraignments, I was excited recently to have a case where quick investigation put ME in possession of highly relevant surveillance video of a bar fight that concluded with my client getting arrested (wrongly, as the video clearly showed).

The surveillance video that I had obtained from the bar prior to my client's appearance for his arraignment on assault charges contained in a Desk Appearance Ticket was fantastic evidence of innocence.  It was classic "exculpatory" evidence as we criminal lawyers say.  The video clearly shows my client in conversation with a bouncer who is substantially bigger than my client.  You then see the bouncer grab my client by the neck and push him back a couple of feet.  At this point, a third party standing there punches my client in the head.  This triggers the bouncer to decide, for some reason, that it is open season on my client, and then HE punches my client in the head.  It is only after being punched in the head TWICE that my client then responds in kind.  The video then shows my client punching the bouncer who then disappears to the ground, knocked out.  (Like Liam Neesan's character in the movie Taken, my client happens to possess "certain skills" such that it would be unwise, as the bouncer discovered, to punch him in the face.)

The law of justification (self defense) in New York, generally permits people to defend themselves against physical assault as long as they reasonably believe that they are at risk of physical injury themselves.  It's safe to say that after being punched in the head twice by two different people, including a bouncer who was substantially larger than my client, that is clear and unequivocal evidence that physical injury could be coming your way, if it hasn't already.  Therefore, this video is evidence of innocence in just the same way that the pictures the prosecutors love to show the Judge at Domestic Violence arraignments, are evidence of guilt.

So one would imagine, then, that there would be great interest by all parties in immediate review of this evidence at arraignment, just the same.

The issue was important, because I was objecting to the Court issuing an order of protection against my client in favor of the bouncer.  If the Government needs time to evaluate the case, then fine, but why should the Court issue an order of protection against my client when the evidence clearly shows that my client was innocent of the charges?

But when I raised the issue of the video, and explained what was on it, the reaction was less than enthusiastic.  The prosecutor responded by questioning whether I would be willing to make the video available, as if I might not be willing to do exactly that.  The Judge not only tolerated this inquisition of me on the record by the prosecutor, but actually waited for me to respond, as if they had both "caught" me at something.

But I was prepared.  I had the video ready to play on my phone.  What is the difference between playing a video on my phone and handing up a pile of pictures of a domestic violence victim?  I responded in a way that neither the prosecutor or the Judge expected in their bizarre gotcha game.  I offered to play it for them there and then.  It was about three minutes long, tops.

Oh but didn't their tune change then.

The prosecutor responded that "now is not the appropriate time" and the Judge responded that "this is not a trial".  

I see.  I never heard a Judge say that "now was not the appropriate time" to review pictures of injuries to the complaining witness allegedly caused by the accused or that "now was not the trial".  The only conceptual difference between the pictures of injuries and the video of the fight at the bar is that my video suggested that my client was innocent of any crime and pictures of victim injuries in DV cases suggest that the accused people are guilty of something.

The arraignment is not the appropriate time to consider exculpatory evidence?  One would think that exculpatory evidence would be of great interest to the court and the prosecutor, at least of as much interest as INCULPATORY evidence of guilt like pictures of injuries of domestic violence victims and notice of confessions and positive identification procedures (lineups). 

What is really funny about the utter absence of time for exculpatory evidence is that of late the court goes through what is clearly simply a charade of handing out a piece of paper reminding both the prosecutor and the defense of various obligations, including a reminder about exculpatory evidence.  Therefore, there is time to hand out a piece of paper talking about the importance of exculpatory evidence, but there isn't any time to review exculpatory evidence to avoid imposing an order of protection on an innocent person.  I mean, one would imagine that a Judge would want to avoid imposing an order of protection on an innocent person, no?

Perhaps not.  The overwhelming attitude of the Criminal Court is that orders of protection are like chicken soup as a cure for the common cold, in that orders of protection "can't hurt".  I had a Judge specifically tell me that orders of protection were like chicken soup on the record in open court in Queens County many years ago.  And yet, legal decisions are meant to be decided according to the rules of law, not according to what couldn't hurt.  But that is another story.

As easily and effortlessly as prosecutors are able to present pictures suggestive of guilt at arraignment, nobody was interested in evidence of innocence at the very same proceeding.  How absurd of me to make the offer even.  "Now is not the time."  "It isn't the trial." 

Silly defense lawyer just wasting everyone's time, as usual.

In the end of course, I fully expect my client to be vindicated by the video surveillance tape, and an argument might be made that my client (and I) should be happy.  And of course when that day comes we will be happy.  Yet, I'm not so certain that the path to that point should be what it is.

Assault charges seem to involve little to no substantive investigation up front, favoring a push to make an arrest as quickly as possible.  If the police show up after a fight, whoever is injured the most is the victim and whoever is injured the least is the defendant.  Investigation is concluded.  Elementary my dear Watson.  Defendant is arrested.  The police are uninterested in witness statements, video surveillance, or in carefully assessing the situation, and God forbid, maybe even delaying arrest.

Arrest the person least injured, or arrest the first person who calls the police, and then let God sort em out.  

And give em an Order of Protection too.  It can't hurt...

By Don Murray, Esq.


New York City Criminal Lawyer Don Murray is a founding partner of the exclusively criminal defense firm Shalley and Murray.  He has handled countless assault cases in New York City over his 27 year career as a criminal defense lawyer.  He can help you too.  Call or text him at 718-268-2171 to set up your free consultation.

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More False Domestic Violence Charges Dismissed - Violation of Order of Protection

False Allegations of Domestic Violence Dismissed Again - Eventually.  

Within just a week of getting false kidnapping charges dismissed, we were able to get more false domestic violence charges dismissed in the context of allegations of violations of an Order of Protection.

In this case, my client had married a person who was not a citizen, and shortly after the marriage, it became apparent that my client's wife saw the marriage as more a path to citizenship than anything else.  Unknown to him, his new wife went to Family Court, made false allegations of abuse, and received an "ex parte" Order of Protection.  "Ex parte" means that the Family Court issued the Order of Protection and my client was not present and could not therefore be aware that there was an order of protection.  Therefore, it remained for my client to be served with a copy of the order of protection by the police, which he was, eventually.

Before my client was served, he was at his apartment, where he had been living with his wife, but his wife had left the apartment and he had not heard from her in days.  Eventually, he changed the locks on the apartment.  My client sent his wife text messages advising her that he was doing this. About an hour after he had the locks changed on his apartment, he was served with the order of protection.

The next day, my client's wife reappeared at the apartment and was unable to gain entry because the locks were changed.  She called the police and claimed that she was being excluded from "her apartment" by the actions of my client (changing the locks).  She also claimed that he had texted her.  Both of these things she claimed violated her order of protection.

The police agreed.  The police then sought out my client and arrested him for violating the order of protection.

Even When the Government Knows it is Wrong, the Default Position is to Resist Doing the Right Thing

Somewhere along the arrest processing, someone in the police department or the DA's Office put together that the timing of the order of protection service and my client's actions didn't fit properly in order for there to be a knowing violation.  If everything my client did that supposedly violated the order of protection occurred BEFORE he was served with the order of protection, he could not be guilty of violating the order of protection.  How could he knowingly violate an order that he didn't know about?

At my client's arraignment, therefore, the Government actually served "Brady" notice.  "Brady" notice refers to a famous United States Supreme Court case Brady v. Maryland, that for our purposes stands for the proposition that the Government has a duty to disclose exculpatory evidence to the defense.  (In other words, if the Government has evidence that the defendant is innocent, the Government can't hide this from the defense.  It seems like this is kind of an obvious thing, right, but you have no idea how the Government fights this and complains about the definition of "exculpatory".)  In any event, in this instance, the Government actually advised us at arraignment that there was an issue with the timing of the service of the order.

What I find interesting about this, is how knowledge that the service of the order was after the actions complained of by the complaining witness, DIDN'T DELAY THE ARREST OR PROSECUTION.  Once again, the Government, in the context of domestic violence type cases, takes the position that it will arrest everyone and let God sort em out.  The police and prosecutors seem not to consider the impact of arrest on a person, taking the longer view that regardless of the arrest, if the case works out in the end, what's the difference.

Another approach to handling the case could have been to investigate the timing of the service of the order and the actions of the defendant prior to arresting him in the first place.  But this isn't what was done.  Instead, my client was arrested, photographed, fingerprinted, and put through the arrest to arraignment system in New York City.

And given that the Government felt sufficiently motivated to bother to put the Brady notice on the record, someone somewhere must have had some real reservations about the case.  Therefore, you would expect that if the Government provided this Brady notice, that it would take the situation seriously and work quickly to resolve the issue of timing and bring the case to its proper conclusion of dismissal.

But that isn't what happened.  The case after arraignment dropped into the massive pool of cases and was ultimately assigned to a prosecutor who almost never picked up his phone, and almost never returned phone calls.  It was almost useless to try talk to the prosecutor on the case and even to present additional evidence supporting the fact the relatively simple proposition that my client was not served the order at the time he did the acts complained of as violations of the order.  My efforts to speak to the prosecutor and present our additional proof were like the sound of one hand clapping.

Although I felt certain that the evidence we had was sufficiently powerful that a dismissal of the matter was all but inevitable, my client was not so experienced with the criminal justice system, was far more anxious about his involvement in it, and was in fact concerned that the fact that he had a pending criminal charge would cause him some grief.  And in fact, his fears on this score came to fruition.  

Through a combination of delays caused by the prosecutor persistently looking for time "to investigate" what was clearly already obvious, the case lingered in the system for a couple of months.  During this time, my client applied for and was tentatively hired for a new job -- only to be told they changed their minds because they discovered his pending criminal charges.  This is completely unfair, and an entire different article could be written about the unfairness of holding pending criminal charges (meaning that no determination of guilt has occurred) against someone.  But the bottom line is that my client lost out on a job because the Government dragged its feet in a matter where the Government itself brought the problem up on the very first day in Court.

Once again, claims that a person is guilty of a crime result in immediate arrest almost without question, and even when the Government itself possesses information suggesting that the accused is actually innocent.  On the other hand, evidence of innocence post arrest, must be "looked into" months at a time and carefully vetted.

And if the slow, careful, investigation into exculpatory evidence took place prior to arrest and prosecution, that would at least not be so burdensome on the accused.  There was no reason, in this case, for example, why the Government could not have backed off the arrest until the timing of the service of the order of protection could be compared with the timing of the acts alleged to have violated the order of protection.

But although it was a long time coming, far too long under the circumstances, at least the Government did actually dismiss the case once their investigation of our evidence concluded.  So there is  that.


Don Murray is a founding partner and New York City Criminal Lawyer with Shalley and Murray, an exclusively criminal defense firm that has served New York City and surrounding areas for more than 27 years.  If you would like help with a criminal matter in New York City call or text 718-268-2171 for your free initial consultation.  Mr. Murray can help you too.

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Does Innocence Matter in Domestic Violence Accusations - Kidnapping Dismissal Case Study

Domestic Violence Kidnapping Charges Dismissed Because Complaining Witness Proved to Have Lied, but What Does the Path of the Case Say about our Criminal Justice System and its treatment of the Innocent?

By: Don Murray, founding partner at Shalley and Murray

   I just concluded a case initially involving horrific kidnapping charges, and the case was outright dismissed earlier.  This is of course great news for my client, and I genuinely appreciate that the District Attorney’s Office did what everyone now believes is the right thing.
    And yet…
    The story of this horrific kidnapping case and the response of the NYPD, the prosecutors and the Courts, exposes the real danger of collateral damage to the innocent inherent in the current approach of the New York City criminal justice system toward domestic violence accusations.  The dangers of false arrest, prosecution, and conviction have significantly shaped our criminal justice system at its most fundamental levels.  We established a variety of individual protections (the Bill of Rights).  We established an extremely high burden of proof (beyond a reasonable doubt).  We demand a presumption of innocence.  We create a system for appeals.  All of it is there because, historically at least, we in America have taken the position that the arrest, prosecution, and conviction of the innocent is a far worse horror than the horror of a guilty person escaping responsibility.  And therefore, we have imposed significant stumbling blocks on the Government’s ability to imprison people here.
    But in truth there is nothing that says a society must make this assessment.  Imposing significant stumbling blocks on the path toward conviction and prison for this grand philosophical principle is not the only approach a society might take.  It seems to me, in fact, as if public support for this approach is failing.  The shifting sands of prosecutorial policies, especially in the context of domestic violence prosecutions of late, seem to be moving the bar away from the protection of the innocent, toward a greater focus on making sure that the guilty suffer (even if some innocent folks suffer along the way). 

But First, Let’s Review this Case.

I am going to use this most recent case as an example of the potential for collateral damage against the innocent of the current approach of the NYC Criminal Justice process toward domestic violence accusations.  Of course, this is an example of one case (therefore anecdotal evidence) and a credible argument could be made that my anecdotal evidence is not something from which broad conclusions should be drawn about a vast system like the NYC Criminal Justice System.  This would be a fair criticism, and if anyone would care to suggest that anything about the treatment of this case is unusual or unrepresentative of the approach taken in most or all domestic violence accusations, I would be happy to hear it.  But this case is worthy of anecdotal review because it offers several instances where policies that seem as if they are there to work for justice, and that are developed from the best of motives to combat a pernicious problem produce unjust and horrific results of their own.  In this way, a review of this case can begin a conversation about whether the benefits gained by these arrest and prosecution polices are worth the costs.  The answer may be for others to decide, but my goal in this article is to make sure everyone knows the conversation that should be had.

 

LET’S REVIEW THE CASE: THE COMPLAINT


    You might well be horrified at the allegations in the complaint and you might even look upon me askan saw his ex girlfriend (XGF) walking to the subway and he pulled next to her in his car.  The complaint then says that my client demanded to talk to her and pushed her into his car.  According to the complaint, my client then produced a gun, put the gun to XGF’s mouth, and threatened to make her mouth explode if she opened it again.  He then is reported to have threatened to kill her current boyfriend and her family members.  Finally, XGF claims that my client drove her to Freeport, Nassau County and kicked her out of the car.
    This is ugly, super serious stuff.  When the police in NYC initially took the complaint from her, they correctly wrote it up as a kidnapping in the first degree charge, a class A1 felony.  Upon conviction for this, my client would have faced a minimum of 15 to life in prison.
When my client was arrested and brought before the judge on these horrific charges, the judge at the arraignment naturally responded.  Bail was thousands of dollars.  Fortunately, his family was in a position to make the bail.
Interestingly, however, the criminal court complaint did not charge the A1 kidnapping that the facts certainly bore out.  The most serious charge on the complaint was the E felony of “Unlawful Imprisonment” - the lowest grade felony there is.  This difference between the initial arrest being for an A1 felony and the arraignment charges being an E felony is considered a big red flag in the world of criminal law.  District Attorney offices are not often in the business of making bold assessments of cases early on like this.  If someone is arrested by the police for X, 99 times out of 100, the case will come through as X on the criminal court complaint.  In this case, it would be especially true, because the factual allegations in the complaint perfectly tracked the A1 kidnapping charge.  That means that if you read the law as to what is required to be guilty to the A1 kidnapping, and then read the facts the Government wrote into the complaint, you would be able to say that everything needed to be guilty of the A1 kidnapping was written there in the complaint.  And yet, the complaint didn’t charge the A1 Kidnapping.  Imagine if you had ten one dollar bills and someone offered to give you a five dollar bill for them.  Accepting a five dollar bill for ten dollars is essentially what the Government was doing by only charging the E felony when the facts as they wrote them in the complaint made out the A1 kidnapping.

 

HUH?  SO WHAT IS GOING ON HERE?

     
     Objectively, there is no particularly good reason for the Government to charge the E felony unlawful imprisonment when the facts as reported by the complaining witness and adopted by the Government in the complaint make out the A1 Kidnapping.  By putting the facts as they did and writing them into the complaint, this suggests (or it should suggest) that the Government is prepared to accept these facts as true.  It would be nice to believe that if the prosecutors entertained serious doubts about the truth the allegations, the prosecutors would not write down these allegations in a complaint and have somebody arrested for it.  Further, If the Government accepts these facts as true, then it would be hard pressed to justify charging anything less than the maximum possible offense justified (the A1 kidnapping).

This isn’t like if someone shoplifts a computer and you choose to prosecute it as petit larceny instead of grand larceny.  This is as serious as it gets.  It’s like arresting someone for murder and then only pursuing reckless endangerment at the arraignment.  

So here is what was going on:  Someone, some person in the DA’s intake procedure process, reviewed the case, and got wind of something, something particularly stinky.  Maybe it was discussion with the police who expressed serious reservations about the accusations.  Maybe it was some sort of preliminary assessment that the accusations weren’t checking out.  Who knows, but someone got wind of a stink on the case.

Everyone who encounters this situation who has any experience in criminal law can smell the stink a mile away.  The DAs in the arraignment part smell it.  The judge smells it.  You better believe the defense lawyer smells it.  Everyone can smell it.  The smell of false allegations fills the arraignment courtroom.  So far so good.

But then everyone but the defense lawyer pretends they don't smell it.

The DAs in the arraignment part requested huge bail.  And the Judge sets huge bail.  The client goes back inside to jail until the bail is made.  And not only that, but the Judge gives the complaining witness an order of protection against my client.  For my innocent client, the world is upside down, and unfair, and terrifying.  Despite the stink being perfectly there for everyone to smell, neither the prosecutor at the arraignment, nor the judge, particularly act on it.  They pretend it isn't there.  In the context of allegations labeled domestic violence, the "safest" thing to do is set bail and issue the order of protection.  If the guy is guilty, then he is getting what he deserves.  If he is innocent, well that's just acceptable collateral damage.

WHAT HAPPENS NEXT


So the good news is that my client has a neighbor who is sufficiently interested in home security that he maintains a video surveillance system outside his house.  The even better news is that this video surveillance system was recording the street outside my client’s house on the day he was supposedly kidnapping and threatening to kill his XGF.  Even better than this is that for the entire time that my client was supposedly driving around the XGF with a gun pointed at her, my client’s car was right there in front of my client’s house - with one real exception.  For about ten or fifteen minutes my client left the house alone and returned with his two kids having just picked them up from school.

This is fantastic because the video is so clear and it virtually mathematically proved that he could not have been driving around New York City and Nassau county during the time alleged, or even around the time alleged.

So I naturally bring this to the attention of the District Attorney’s Office.  I provided the video along with some additional confirmatory evidence and witnesses.  The District Attorney reviewed the evidence and after a time reviewing it, agreed that it confirmed that my client could not have committed the crime.  Without specifically promising anything, The DA suggested that it was highly likely they were going to dismiss the case on the next court appearance.

Of course this was excellent news, and good for the prosecutor’s office for cooperating to make sure that justice is done.

But what I think about is what would have happened had my client not had conclusive video surveillance proving his whereabouts during the supposed kidnapping?  After all, what a random event it was that a neighbor happened to have video surveillance that perfectly captured his car and the front of his house.  What if that wasn't true?  What would we have been left with?

My client’s persistent claims of innocence alone would certainly never have persuaded the Government simply to forget about a case with such serious allegations.  Now, the Government might have been willing to offer to settle the case for him, but a case with serious allegations such as this would mean that a settlement would have involved a criminal conviction and likely some jail.  But if this were distasteful to him, if only as a risk management tool, then his only option would be to pursue the matter to a trial.  

And even if he were to win the trial, is that really a victory?  I once had a client tell me, after we won his trial, that the experience of pursuing the matter to trial, and then the trial itself, was so stressful and terrifying that if he had it to do over again, he would  just plead guilty to something up front, even though he was innocent.

The lawyer wins the trial, but the client simply avoids conviction.  The process is miserable.  The client must go back and forth to court for a year or so with the constant stress and worry about whether he is going to prison.  The client must pay a lawyer to conduct a time consuming trial.  And the client must listen to the result of twelve total strangers making a decision that could utterly ruin his life.

So yes, in this case, my client hit the jackpot.  We were able to avoid all of that misery, and relatively quickly extract him from the criminal justice system.  The nightmare was soon to be over on the next court appearance.

BUT THE NIGHTMARE WAS ONLY BEGINNING...


I got a panicked call from my client about two weeks before we believed the case was to be dismissed in court.  The complaining witness had made a report to the police that my client had violated the terms of his order of protection by parking near her house and by calling her to threaten her.  A police officer had contacted him about the report and told my client that he wanted to arrest him for violating the order of protection.

My client contacted me because he wanted to believe that the criminal justice system made some kind of sense.  He believed that if I could somehow talk to the officer, that the officer would come to understand the absurdity of it all and that the complaining witness should not be believed.  I had several conversations with my client, and I told him that I would in fact have conversations with the officer, and the DA as well, but I privately believed that the odds of them not following through with the arrest were small.

This is a domestic violence accusation.  There are procedures and policies in place.

The officer was perfectly nice to me.  He told me pretty much what I expected him to tell me, that is that this is a domestic violence accusation and it is an order of protection violation accusation and that he has a complaint provided by a person who did not affirmatively say that she was lying.  Therefore, he was going to make the arrest.  I provided the officer the name of the prosecutor who was dismissing the kidnapping case, and I provided her phone number and email address.  He spoke to her and was fully advised of the situation.  Remember that the situation is that the same complaining witness made a false report of a terribly serious crime and it is so clear that the report was false that they are dismissing the charges.

It didn’t make a difference.

As it was explained to me by the officer, even if the DA’s office told them not to make the arrest, they were going to make the arrest anyway.  It was their policy.  The officer happily advised that the DA’s office can dismiss the case after if they choose, but they were going to make the arrest, regardless.

On the day that my client turned himself in, we had unearthed additional surveillance video that showed that my client was at home during at least one of the alleged times he had supposedly violated the order of protection.  I advised the officer that my client would be bringing this video evidence with him to the surrender.

The officer point blank refused to look at it.

The good news, however, was the prosecutor on the case advised me that they were in fact going to dismiss the charges when the police made the arrest.  Or so I was told.
In fact, the new case was not dismissed, but came through arraignment court after all, AND the prosecutor in the courtroom requested thousands of dollars in bail.  At least when I made the judge aware of the full situation, however, the judge released my client.

The NYPD and the District Attorney’s Office were fully aware that the complaining witness had falsely reported a crime so serious, that if my client had been prosecuted and convicted, he would have spent the rest of his life in prison.  And yet, the NYPD took her complaint about violating her order of protection even though not only was there no corroborating evidence of the violation (that he parked outside her house at 4am or called her cell phone), but also there existed exculpatory evidence in the form of video surveillance footage.  The NYPD refused even to look at the video, insisting on making the arrest, simply because a report was made.

In the individual situation, of course, this set of circumstances was terrible, even if he were "just arrested" and the case was immediately dismissed.   I think that people who are connected to the criminal justice system, like police officers, prosecutors, judges, and even defense lawyers, can lose sensitivity to the horror that most people feel about contact with the system.  To us, the criminal justice system is home, in a way.  We see our friends in court.  We spend our careers within it.  We have a deep understanding of its ways, and we have a pretty good sense how things are going to turn out in the end.  Therefore, it is easy to pass off the notion of being arrested as not that big a deal, especially when the matter is not that serious or unlikely to result in a conviction or prison.  But to people who don’t have the connection to the system that we do, even talking to the police can be stressful, let alone being taken away in handcuffs and put “through the system” for arrest to arraignment.

In my client’s case, he experienced this horror a second time, for a second crime he did not commit, and he experienced it after I had told him point blank that the prosecutor promised that the case would be dismissed before arraignment.  And not only was the case not dismissed, he got to stand next to me in Court while the prosecutor in arraignments demanded that the Judge put him back in jail on substantial bail.  The prosecutor in arraignments knew absolutely nothing about his own Office’s plan to dismiss the kidnapping charges, let alone any agreement to dismiss the case prior to arraignment.

Now of course it is easy to say that in the end it was OK because I was able to bring the judge up to speed on the situation, despite the Government’s ignorance of it at arraignment, and the Judge simply released my client.  

But really?  Was it ok?  

While the Judge did release my client without additional bail, the Judge declined my request NOT to issue an additional order of protection based on the new case.  Despite there being an order of protection already in existence based on the false kidnapping case, the Judge issued yet another order of protection on the new false charges of violating the order of protection.  
On an individual level, what is my client to make of this?  How does this make the smallest amount of sense, especially from the perspective of being the innocent victim of these false charges?  

 

WHAT DOES THIS MEAN ON A BROADER LEVEL?


The impact of this set of circumstance upon my client is one thing, but what does it tell us about the system on a broader level?  One reaction could easily be that while the impact on my client was of course temporarily horrible, in the end, it was OK, and therefore acceptable in the grand scheme of things.  Both cases were dismissed, and they were both dismissed within a relatively short period of time.  My client eventually made bail, so he wasn’t in jail the whole time.  There was no trial.  The Government reviewed the evidence we presented, and took the evidence seriously enough to dismiss everything.  So where is the problem?  What does the manner in which this case was handled tell us about how the system operates and should it cause us to take a moment to consider things?

At a broader level, I think this case should at least contribute to a conversation.  

I fully understand that domestic violence cases are a real conundrum involving real pain and knotty social problems.  I don’t envy the police and prosecutors who must develop policies to deal with domestic violence in the context of a criminal justice system that was designed to be highly suspicious of the Government when it wants to prosecute people criminally.  I understand the temptation to test the edges of the system and seek “exceptions” to hard principles we have traditionally associated with what it means to live in a society free from unwarranted government interference.  I understand the desire to make things difficult for people accused of domestic violence and always to insist on orders of protection and to initiate polices that “require” arrest when accusations are made.  I understand the desire to find new ways to prosecute people when their own victims choose not cooperate, sometimes because they feel threatened, or sometimes when they are victim of a psychological syndrome that compels them to continue in a cycle of abuse.  I get it.              

But the case that can be made for testing the edges of a system built to make it difficult for the Government needs to be understood in its context.  It needs to be understood in terms of what it gives up about what our criminal justice system is all about.  On a broad level, our system is in fact designed to put significant obstacles in the way of the Government in criminal prosecutions.  If we disagree with these obstacles, I think it is important that we discuss or at least that we take notice as these obstacles are sought to be undermined or watered down or “worked around”.

 

"EVIDENCE BASED PROSECUTION" POLICY


A popular policy in the context of domestic violence prosecution these days is called “evidence based prosecution”.  “Evidence based prosecution” policy in domestic violence cases, generally describes how the Government makes efforts to prosecute those accused of domestic violence when the victims will not cooperate.  This policy seeks to leverage various hearsay exceptions and other legal principles to build criminal cases against and even win trials against domestic violence offenders when the victim is uncooperative.  These “evidence based prosecutions” are all the rage in domestic violence units across the country, including here in New York City, and prosecutor offices routinely crow about the numbers of convictions they obtain at trials where the victim refuses to testify and affirmatively does not want the charges brought.  Measured in these terms, aggressive domestic violence prosecution is seen as a stunning success.  See, for example, this profile of the "evidence based prosecution" policy and its architect in Queens County, Scott Kessler, from the Wall Street Journal.

Where was this so-called “evidence based prosecution” when the police insisted on arresting my client for violating the order of protection?  The police officer who arrested my client point blank refused even to look at the actual evidence my client had with him.  Where was “evidence based prosecution” when the DA’s office “couldn’t do anything” to stop my client’s arrest for what the DA’s office claimed to believe were additional false charges?  

The aggressive policies associated with prosecution of domestic violence cases, that include seemingly always believing people who say they are victims seem only to work one way.  Evidence of guilt is always to be believed and acted upon immediately.  Evidence of innocence needs to be thoroughly vetted and corroborated for three months before it can be acted upon.  

And lest you think that my client’s video evidence in the violation of the order of protection case could not have been reviewed in time and would have no place at his arraignment in court, think again.  One of the hallmarks of the “evidence based prosecution” theory is that pictures of injuries to victims of domestic violence are brought to court and presented to the Judge at arraignment as part of the Government’s bail argument.  Prosecutors make significant efforts to obtain pictures and present those pictures at the first appearance.  According to the Wall Street Journal Article above, Assistant District Attorney Scott Kessler "...will have digital photos of the domestic violence scene at the defendant's first court appearance to increase the chance a judge will set bail."  Therefore, prosecutors well understand the need to evaluate evidence such as pictures and video early on in a case.

So why the reluctance to review and evaluate video evidence of innocence?  The answer is not that this is the job of the defense lawyer.  The Government, including the police and prosecutors have a broader job than simply to be adversaries in court.  The Prosecutor's role is to investigate and prosecute, WHERE APPROPRIATE, not AT ALL COSTS and simply hope the defense figures it out.  The Government has as much of an obligation to investigate claims of innocence as it does to investigate claims of guilt.  

It seems that, in my client's case anyway, the Government was only interested in “evidence based prosecution” when the evidence tends to prove guilt or justify an arrest.  The police and prosecutors were uninterested in the evidence of my client's innocence, at least when it came to deciding whether to make an arrest.  

Perhaps this hearkens back to the sense that being arrested is no big deal or that the “safest” thing to do is arrest someone, and give him an order of protection.  Aggressive domestic violence prosecution policies, grounded in a legitimate interest in preventing and punishing domestic violence crimes, have in this way created a situation where claims of guilt are acted upon almost without question, while evidence of innocence is at least initially, affirmatively ignored.  In this particular case, I was nearly made to feel crazy for debating about whether the police ought to make the arrest for violating the order of protection, even though the Government knew full well that the complaining witness had lied about insanely serious kidnapping charges and that the claim of the violation was uncorroborated.  And they further wouldn't even look at the proof of innocence.  Procedure required that my innocent client just suck it up.  What's the big deal?  So he gets arrested, goes through the system and ultimately the case will be dismissed.  Why is my client being such a baby?  

The point here is not really the suffering of my client, because he ultimately did make it out the other side and everything ultimately was in fact dismissed.  But his was an extreme case where luck was on our side in that we happened to obtain video surveillance that mathematically proved his innocence.  I worry about the innocent person who isn't so lucky.  I worry about the innocent person I represent who doesn't have the lucky surveillance video to prove his alibi.  If things were this hard for my innocent client when we virtually hit the jackpot with exculpatory evidence, how hard is it for the innocent client when there is no jackpot?  That is the scary part.

Should not evidence of innocence be given extraordinarily high priority in our system?  Why should it be that if someone is innocent, he or she must suck up being arrested because it makes the police feel better that they have done the "safe thing" (where safe is defined as "what we usually do")?  Why should it be that if someone is innocent, he or she must suck up having an additional order of protection imposed because that is the "safe thing" (again where safe is defined as "what we usually do")?  Shouldn't decisions within the legal system, whether they are decisions to arrest or decisions to impose orders of protection be based on considerations better than "what we usually do"? 

Shouldn't innocence matter?

This aggressive, "arrest everyone and let God sort 'em out" style of domestic violence prosecution is certainly one solution, but the collateral damage to the innocent should not be ignored.

BUT AREN'T FALSE ALLEGATIONS REALLY RARE?

One typical response to this concern over aggressive tactics in domestic violence accusations is to suggest that false reports, and the resulting arrests of the innocent, are rare.  This is supposed to make us feel better, but should it?  There are two issues worth considering when someone makes the claim that false reports are “rare”.  The first issue is where does this information about the rarity of false reports come from?  The second issue is that even if you assume that false reports are rare, does that mean there is an “acceptable level” of innocent people who must be sacrificed in the name of aggressive prosecution?

How do we know False Reports are Rare?


Is there some repository of ultimate truth, some Galactic Truth Encyclopedia that is consulted about false reports in domestic violence cases?  Or is it perhaps a different reference work : The Book of All Things We Hope are True.  The answer, however, as best as I can tell, is that this notion, where it isn't just spouted without reference, comes from various "studies" that all suffer from the same fundamental problem, which is that there is no reliable way to get the information.  They all suffer from the problem of having to identify cases where false allegations have occurred.

In 2009, Dr. Kimberly A. Lonsway, Sgt. Joanne Achambault, and Dr. David Lisak, wrote a pamphlet for the National Center for the Prosecution of Violence Against Women, called “False Reports: Moving Beyond the Issue to Successfully Investigate and Prosecute Non-Stranger Sexual Assault”.  In this pamphlet, dealing with false allegations of non-stranger sexual assault, a subset of the broader set of all domestic violence accusations, the authors reviewed several of the studies that purported to identify the frequency of false allegations.  The authors criticize much of the available literature as unscientific, little more than opinion pieces without an real effort at the a rigorous methodology.  The authors instead focus on a handful of studies conducted where the results, appeared to point to a 2-8 percent level of false allegations in non-stranger sexual assault allegations.  

One of the difficulties of even these “more rigorous” studies is that apparently, cases that made their way to arrest, prosecution, and conviction were not considered part of the studies, or were counted as “not false”.  If a case, for example, made its way to trial, and the defendant were acquitted, how does this result affect the study?  Does that case get reevaluated as a potential false allegation?  Of course the acquittal offers no scientific reason for this, since an acquittal simply means that a high burden of proof has not been met.  But someone who is acquitted could be actually innocent and the victim of false allegations.  

Similarly conviction after trial cannot automatically rule out the possibility of false allegations either, and it is unclear to me whether such cases in any of these studies are considered.  We know as a matter of scientific certainty that defendants who were convicted after trial have been scientifically proven to be innocent by various scientific techniques and video evidence later acquired.  This tells us two important things.  First, that people who are wrongly accused can be convicted.  Second, it suggests that the pool of people who are innocent and convicted wrongly is larger than the set of people who are lucky enough to later discover a means to be exonerated by scientific evidence.  If there is no DNA to be tested, then there can be no possibility of a DNA exoneration.  It is absurd to imagine that we are so fortunate to be able to exonerate with scientific evidence exactly the number of people who have been wrongly convicted and that everyone else was correctly convicted.

More troublesome, is that the studies apparently ignored the set of people who pleaded guilty either to the crimes they were accused of, or who pleaded guilty to some lesser crime.  It is easy to discount guilty findings of either type (plea to charge or plea to lesser charge) on the assumption that the charges can’t be false because the person pleaded guilty to something.  This is a false assumption.  In the modern criminal justice system, risk management is a constant and daily motivation for people to plead guilty.  Given the availability of plea bargains, especially plea bargains that either allow pleas to non-criminal offenses or allow deals that avoid jail altogether, people regularly make risk management decisions to plead guilty although privately they maintain their innocence.  

Judges on the record will recoil at the notion, and can often be heard to claim that they “don’t take pleas from innocent people”.  These same judges who don’t take pleas from innocent people also cannot guarantee a person who claims innocence that he will certainly be acquitted as long as he is actually innocent.  This means that these judges who “don’t take pleas” from the innocent do not allow the innocent to make risk management decisions.  If innocent people want to assert their innocence, they must rely on the criminal justice system to produce the correct result, and they must be willing to bet their futures, their family’s futures, and their lives on a jury getting it right.

Judges who act appalled at the concept of accepting guilty pleas from the innocent also seem to forget that the law accounts for the availability of risk management in something called an “Alford Plea” named after a famous United States Supreme Court case.  In an Alford plea, the law allows an accused to say that he is willing to plead guilty though he is innocent because after reviewing the evidence, he is concerned that something about it will look bad to a jury and he may be wrongly convicted.  The problem is that the law in New York is that both the Judge and the prosecutor’s office must agree to allow it.  In New York City, anyway, that very rarely happens.  The idea of innocent people pleading guilty to offenses and even going to jail, understandably makes Judges and prosecutors a bit uncomfortable.  Therefore, the system's solution is to avoid the issue and generally to insist that innocent people are not allowed to manage their risk.  Alford pleas are almost never on the table.  Therefore, a person who claims innocence must keep it to himself and fully concede guilt if he wants to manage his risk and accept some sort of a deal.

And thus, the act of pleading guilty, without protests of innocence on the record, is certainly not something that could scientifically allow the conclusion that a case that results in a conviction for anything at all is not based upon false allegations.  

Further compounding this problem is how to handle pleas to “lesser offenses”.  Most plea bargains are bargains because they offer a plea to something less than the actual most serious offense charged.  Sometimes the bargain relates to the amount of jail time alone, but more often the bargain involves a lessening of the charge in the plea.  What meaning is to be taken in this?

Suppose a person is arrested in a domestic violence case for assault in the third degree (misdemeanor assault) based on the allegation that the defendant punched the complaining in the face.  The defendant is offered a plea bargain to disorderly conduct, and he never is required to admit to punching the complaining witness in the face.  Forgetting for the moment about whether or not the entire decision to accept this deal is risk management from an innocent person, there are two possibilities.  

First, the defendant could have punched the complaining witness in the face, but only had to plead guilty to disorderly conduct for purposes of the plea deal.  The report by the complaining witness was true, however, that he punched her in the face.  

The second possibility, however, is that the complaining witness lied about the defendant punching her in the face and that never happened.  The truth is that while the defendant did get physical with her in some way - perhaps pushed her in some sort of vague but physical struggle, he never actually punched her in the face.  She was very angry at him, however, called the police, and reported that he punched her in the face.

How does the guilty plea by the defendant help you to decide whether the actual factual allegation of the punch in the face were true or false?  Nothing about the plea on the record speaks to punching anyone in the face.  If this case appears in a study on false allegations, how do you characterize it?  Is it a false allegation or is it a factually true allegation?

The possibilities for false allegations are virtually endless, especially outside the context of sexual allegations (which was the subset of cases important to the authors of the pamphlet) where allegations can be purely based on the word of the complaining witness without a means to corroborate or disprove.  (For example, “I saw him parked outside my house in violation of the order of protection.”)  Therefore, simply assuming that false allegations can’t be false if they make it through to the arrest, prosecution, and conviction phase is ludicrous and utterly unscientific.

What about Prosecutions for Making False Allegations


Finally, another obvious way to examine at least some false allegation statistics is to examine the number prosecutions brought for making false allegations.  Making false reports to the police is actually a crime in New York.  Presumably, at least, the cases actually brought will represent some of the charges believed to be false that make their way into the criminal justice system.

And yet, anecdotally, of course, I can tell you that my own experience in 27 years of practice in the New York City Criminal Courts, is that actual prosecutions for making false reports to the police are extremely rare.  However rare everyone likes to assume the making for false reports is, the number of prosecutions for making false reports is even more rare.  This is just an anecdotal observation that it seems as if you just don’t see it that often.  While accusations of domestic violence are prosecuted extremely aggressively, and sometimes on the smallest amount of evidence, cases involving prosecuting complaining witnesses for lying about it to begin with seem to be prosecuted, shall we say…less aggressively.

As far as I know, for example, and I have checked, the complaining witness in the case that inspired this article has not been arrested for filing even one false report of the two obviously false reports she filed, and I don't imagine she is likely to be either.  She caused my client to be arrested for a case that could have resulted in him going to prison for the rest of his life for a crime he did not commit, and she was absolutely caught lying about it - to a mathematical certainty.  And on top of that she filed a second false report causing my client to be arrested a second time - this too proven mathematically to be false.  A case against her for filing a false report would be easy to make and difficult to defend. 

And yet, assuming that it remains true that this complaining witness is not prosecuted, there will be no record of this case in any set of statistics as a false allegation of domestic abuse.  The case will appear in statistics kept by the Court as a case that was "dismissed in the interests of justice" among others. Cases "dismissed in the interests of justice" can be dismissed for a myriad of reasons, many unrelated to the falseness of the charges.  How many other such cases exist outside the statistics?  How many other cases like it exist where there just didn’t happen to be video surveillance?  How many people weren’t able to make bail on such serious false allegations and sat in jail, even taking pleas to avoid consequences of false conviction?  

We have no idea, but somehow we seem to hear often that false allegations are "rare".  So says The Book of All Things We Hope are True.

 

Why Bother to Prosecute, Even?

One of the most astonishing aspects of the pamphlet from the National Center for the Prosecution of Violence Against Women is the authors’ attitudes about whether prosecutions for making false reports even should be brought at all.  In their analysis, the authors miss or ignore the most fundamentally horrific aspects of falsely reporting crimes - which is the impact that this has not only on the innocent person accused of a crime, but also the impact on society of a system that discounts the victimization of the innocent.

According to the authors, “We all know that false reports do really exist, and they are incredibly damaging both to criminal justice personnel and to the countless victims of sexual assault whose credibility they undermine.”  The authors seem to forget about how “incredibly damaging” false reports are to the person who is arrested, prosecuted, and placed at risk of conviction for a crime he did not commit. 

But shouldn’t we characterize the innocently accused as the “victim”. Falsely reporting an incident is a crime, though the authors of this report are dismissive of it because it is usually “just a misdemeanor”.   (By the way, I was recently excoriated by a Judge in open Court because this judge (wrongly) believed I had a cavalier attitude about a misdemeanor traffic offense.  This judge felt compelled to remind me that the legislature has decided that it is serious enough to make a crime.)   Apparently, to adopt the attitude of the authors of this pamphlet, a cavalier attitude about the crime of falsely reporting crimes is justified

But if we characterize the innocent person accused in a false report as a crime victim, why then is he deserving of any less attention than any other crime victim?

The authors expend a good deal of energy presenting the pros and cons of whether or not prosecute people who commit the crime of falsely reporting a crime.  Unsurprisingly perhaps, they develop a calculus that seems drawn toward choosing not to prosecute criminals who falsely report crimes.

In favor of prosecution, the authors at least recognize that if a person is actually arrested based on the false charges, this is something that weighs in favor of prosecution.  And yet, this is hardly explored, as if it were only begrudgingly added as a consideration.  More thoroughly explored was the notion that if prosecution and police have devoted lots of time and effort to investigating false charges, this was something it was worth obtaining retribution for against the false reporter.  Finally, the authors suggested that investigators who spent time investigating and prosecuting people based on false reports might feel bad about it and therefore their feelings might be hurt and this should weigh into the calculus.  We want to make sure that we take care of the sensitive feelings of the prosecutors and police who are fooled into believing and pursuing false allegations against an innocent person.  (Yes, they really float this as a reason.)

On the other hand, the authors warned of several dangers involved in prosecuting people for filing false charges, even if the factors in favor of prosecution justify it.  Therefore, these factors, when present, mean that even when the Government believes that someone has falsely accused a person of a crime, and thereby committed a crime, the Government should just forget about it.

First, the authors are concerned that media coverage of the prosecution will poison potential jurors who will see this story and who will then jump to dangerous conclusions about the frequency of false allegations.  This problem of media coverage of cases potentially poisoning jurors in non-specific future cases is something that most prosecutor offices are not even close to caring about in the smallest way

Visit any DA’s Office web page and look at all the press releases they write crowing about specific cases and detailing all the “evidence” and detailing all the “facts”.  These are specific cases that are currently being brought against specific people and the DA’s Offices are writing specific articles for the public, including potential jurors, to read.  If conscientious jury selection can weed out people who have been tainted by the DA’s Offices' constant stream of press releases about current ongoing specific cases, then conscientious jury selection can weed out people who read a story once about someone in an unrelated case being arrested for making false allegations.  This consideration is downright ludicrous for the authors to identify and proves in itself that they are utterly unconnected from reality or the criminal justice system or both.

Second, the authors are concerned that “given the size of the caseload that most investigators and prosecutors handle” that it is “difficult to justify” devoting the effort to prosecute filing a false report because it is “typically only a misdemeanor”.  The NYC Criminal Courts deal with hundreds of thousands of misdemeanors every year, including prosecutions for trespass, driving with a suspended license, criminal mischief, shoplifting, and countless other low level offenses that pale in comparison with the gravity of causing an innocent person to be subjected to arrest, prosecution, and the risk of wrongful conviction.  To the extent that caseloads are an issue, therefore, it would seem completely appropriate to devote a little less time to suspended license or petit larceny prosecutions and more time to falsely reporting crime prosecutions.

Third, the authors suggest that while it is understandable that investigators might want to prove that allegations are false, the effort to develop the proof is “probably not the best use of limited resources.”  Why not?  This would be investigating evidence of crimes, right?  Isn’t that what investigators do?  Suddenly the resources are limited.  They aren’t so limited when it comes to hundreds of thousands of similarly misdemeanor offenses?

Fourth, and finally, the authors expose their softer sides by getting behind the notion that “most false reports of sexual assault are typically the result of personal and emotional problems, rather than vengeful motives.”  We are supposed to take from this assertion that therefore, we must have some sympathy and decline even to arrest them.  This seems nice, but personal and emotional problems can be as easily said to be the source of nearly all criminal acts.  If I asked the police not to arrest a client for possession of drugs because he possessed the drugs as an outgrowth of personal and emotional problems, the police would laugh in my face.  

These sorts of sympathies do have a place in the criminal justice system - after the person is arrested.  District Attorney Offices around the city (and country) these days have all sorts of policies and programs to make some efforts to account for personal and emotional problems in the context of the criminal justice system.  And there is certainly no reason to except out of hand people who commit crimes of falsely reporting a crime from the possibility of similar measures of mercy and compassion.

But few, if any people, accused of misdemeanor offenses even, simply avoid arrest altogether out of a sense that it all stems from a personal or emotional problem.  This is not a factor then that would, in the context of a matter as serious as causing a person to be arrested based on false charges, suggest that no arrest even be made.  Perhaps after arrest, some sort of program or other form of mercy might be part of a settlement of the matter.  But simply to forget about it?  “No harm, no foul?”  Really?  Perhaps if the entire criminal justice were re-ordered to treat everyone in this manner, then it could be justified, but just to single out those who falsely report crimes seems difficult to support.

 

If False Allegations are Rare, How Much Should we Care?

The second aspect of this “false allegations are rare” business, is how much we care about those rare instances.  Maybe it is “rare” as is often said, not that we have any scientific reason to believe it to be rare.  But even if it is rare, how to do we process this rarity?  What do we think about it?  Do we simply use the word “rare” and then think about something else? Should we care?             

These “rare” cases involve people who are innocent of any crime, who are arrested, prosecuted, and potentially convicted of crimes they did not commit.  Do we see these people as acceptable losses in the fight against domestic abusers?  The Government should be clear and people should realize that current policies of handling those accused of domestic abuse will include aggressive prosecution of all those accused of domestic abuse, almost without regard to credibility of the accuser.  To the extent that innocent people are arrested and prosecuted in this aggressive policy, these innocent people are to be considered acceptable losses for the overall good of society in the name of the fight against domestic violence. 

This notion of the innocent (as long as it isn’t you or someone you really care about, of course) as acceptable losses or collateral damage in a war on domestic violence may be an understandable response to a vicious and difficult problem.  Historically, however, in this country, criminal law has been designed to make it extremely difficult to prosecute people out of an extreme desire to ensure that the innocent do not suffer - even if it means, as it will, that the guilty will go free from time to time.  

The desire to protect the innocent, even at high cost, that in part inspired the Constitution and more than a couple hundred years of legal thought, appears to be waning.  In our desire to solve a real and terrible problem, we are losing sight of this original intent that informed our Constitution and the Bill of Rights. 

As long as someone you care about isn’t one of the falsely accused, the arrest, prosecution, and conviction of some innocent folks may seem like like an acceptable consequence of fighting a terrible and difficult problem.  Maybe the hope that false allegations are “rare” will help you sleep at night, instead of worrying that you or someone you care about will be falsely accused, arrested, and prosecuted, just to be on the safe side.  Maybe the hope that if you are arrested, just to be on the safe side, things will sort themselves out for you eventually, will help you get through the day.  

The Founding Fathers no doubt shared similar hopes about the rarity of false allegations. 

But then, they wrote the Constitution too.


Don Murray, is a founding partner of the New York City criminal defense law firm Shalley and Murray.  He has been practicing for more than 27 years in New York City Criminal Courts.  If you would like to consult regarding a criminal matter in New York City, call or text the office at 718-268-2171 to set up your free consultation.

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