Beruflich Dokumente
Kultur Dokumente
2016-0092
TRACIE M. HUNTER,
Appellant,
vs.
STATE OF OHIO,
Appellee.
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TABLE OF CONTENTS
EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT
GENERAL INTEREST....1
A. DESCRIPTION OF AMICI......2
B. THERE HAS BEEN GENERAL PUBLIC INTEREST IN JUDGE HUNTERS
CASE BECAUSE IT STEMS FROM THE HISTORICAL BATTLE TO ELECT
HER AS THE FIRST AFRICAN-AMERICAN JUDGE TO THE HAMILTON
COUNTY JUVENILE COURT....3
C. PUBLIC CONCERN GREW WHEN JUDGE HUNTER FACED RETALIATION
FOR HER ELECTIONS LITIGATION DURING HER FIRST FOURTEEN
MONTHS ON THE BENCH....4
D. THE PROSECUTION OF JUDGE HUNTER UNDERMINDED THE
COMMUNITYS TRUST IN OHIOS CRIMINAL JUSTICE
SYSTEM...7
CONCLUSION.13
CERTIFICATE OF SERVICE.13
one purpose: to remove her from the bench. It seemed the Special Prosecutor admitted this in
closing argument. This tactic worked, because she has not been on the bench for over two years.
The only remaining charge is a tenuous one involving an allegation about securing a public
contract for her brother who worked for the court for seven years prior to her arrival. Amici
respectfully request that this Court review this single conviction, not only to correct the errors at
trial, but more importantly, to restore Amicis, and the communities confidence in our criminal
justice system.
A. DESCRIPTION OF AMICI
The following membership organizations support this Amicus Brief: Cincinnati Branch
of the National Association for the Advancement of Colored People (NAACP); The Urban
League of Greater Cincinnati; Greater Cincinnati Chapter of the National Action Network
(GCCNAN); Coalition for a Just Hamilton County; New Prospect Baptist Church; Cincinnati
Improvement Association; World Outreach Christian Church; The Community Church of
Cincinnati; Dominican Sisters of Hope; First Baptist Church; New Vision Missionary Baptist
Church; Joseph Dream, Inc.; Vision Works, Inc.; Word of Deliverance Church; Black Greeks
Speak; Transformation Cincinnati Northern Kentucky; The People's Church; Western Hills
Brethren in Christ Church; Interdenominational National Ministers Alliance; Tryed Stone New
Beginning Church; Cincinnati District AME Church; Brown Chapel AME Church; St. Stephen
Christ Our Redeemer Church; St Luke AME Church; Bethel AME Church; Lee Chapel AME;
Robert A. Taft High School Alumni Association; the Baptist Ministers Conference; J-RAB;
Inc.; Kentucky State University Cincinnati Alumni Chapter; Heirs Covenant Church; City
Servants; and Conscious Living Center and several other civil rights, civic, and religious
organizations.
The following individuals, as well as over 2,100 persons on the attached 188 signature
pages, support this Amicus Brief, including Ohio State Senator Cecil Thomas, President of
GCCNAN; Bishop Bobbie Hilton; Robert Richardson; Joe Mallory; Gwen Robinson; Rev.
Damon Lynch, III, of New Prospect Baptist Church; Rev. Troy Jackson, President of the Amos
Project; and Ford Taylor, President of Transformation-Cincinnati-Northern Kentucky.
B. THERE HAS BEEN GREAT PUBLIC INTEREST IN JUDGE HUNTERS CASE
BECAUSE IT STEMS FROM THE HISTORICAL BATTLE TO ELECT HER AS
THE FIRST AFRICAN-AMERICAN JUDGE TO THE HAMILTON COUNTY
JUVENILE COURT
One hundred fifteen thousand and one hundred nine (115,109) voters cast ballots to elect
Tracie Hunter Judge of the Hamilton County Court of Common Pleas, Juvenile Division in the
November 2, 2010 election. However, the voters would not know they had elected Tracie
Hunter Judge for over 18 months. The Board of Elections voted not to count over 800
provisional ballots that were cast on Election Day in predominately African-American precincts
in the City of Cincinnati. Without counting these provisional ballots, Tracie Hunters opponent,
John Williams, was declared the winner, by 23 votes. Tracie Hunter filed a lawsuit seeking to
have these provisional ballots counted. The case was vehemently defended not only by the
Hamilton County Prosecutor on behalf of the Board of Elections, but also by her opponent, John
Williams, who intervened to side with the Board of Elections to defeat Judge Hunters election.
The day after Judge Hunter filed her legal challenge the U.S. District Court issued an Order
requiring the Board of Elections to count the provisional ballots that it had rejected. Hunter v.
Hamilton County Board of Elections, 2010 WL 4878957, SDOH Case No. 1:10-cv-820, Nov. 22,
2010. The Hamilton County Prosecutor and John Williams appealed the initial Order; they
sought to block the provisional ballots from being counted. The Court of Appeals rejected their
first appeal in January 2011, 1 but the Hamilton County Prosecutor and John Williams continued
to fight the Order, eventually forcing a three week trial to be held. In February 2012, the U.S.
District Court again ordered the provisional ballots be counted. 2 The defendants filed additional
appeals but the Court of Appeals would not grant a stay of the Order to count the ballots. The
defendants did not stop trying to avoid counting the ballots until finally the U.S. Supreme Court
rejected their petition. 3 On May 17, 2012, the Board of Elections, having been forced to count
the provisional ballots, certified Judge Tracie Hunter the winner of the Juvenile Court race.
Judge Hunter won by 74 votes. Judge Hunter is the first African-American Juvenile Court Judge
in Hamilton County history. Her six-year term was reduced to 20 months.
C. PUBLIC CONCERN GREW WHEN JUDGE HUNTER FACED RETALIATION
FOR HER ELECTIONS LITIGATION DURING HER FIRST 14 MONTHS ON
THE BENCH
Within five months of taking the bench, the Hamilton County Prosecutor (prosecutor)
filed a writ of prohibition seeking to prohibit Judge Hunter from ruling on a pending discovery
issue, then quietly dismissed the case. 4 At the same time the prosecutor filed a second writ of
prohibition case seeking to stop Judge Hunter from appointing a court administrator, even though
prior judges each had separate court administrators. The prosecutor voluntarily dismissed this
case, too. 5 The prosecutor also filed a third writ of prohibition case against Judge Hunter
involving her order to the prosecutor to turn over discovery. 6 The case was eventually dismissed
Hunter v. Hamilton County Board of Elections, 635 F.3d 219 (6th Cir. 2011) (Hunter I).
Hunter v. Hamilton County Board of Elections, 850 F.Supp.2d 575 (SDOH Feb. 2012) (Hunter
II).
3
Hamilton Cty. Bd. of Elections v. Hunter, Tracie, SCOTUS Case No. 10A989, issued April 20,
2011.
4
State of Ohio Ex Rel. Hamilton County Prosecutor, Joseph T. Deters, COA Case No.
C1200791.
5
State Ex Rel Laura Wickett v. Hunter, COA Case No. C1200694.
6
State of Ohio Ex Rel. Hamilton County Prosecutor, Joseph T. Deters, COA Case No. C130682.
2
on the merits. 7 These cases filed by the prosecutor started a pattern of lawsuits seeking writs
filed against Judge Hunter in her official capacity as Juvenile Court Judge. In all, five suits were
also filed by the media 8 and 18 writs of procedendo suits were filed by the public defender. 9
Most of the media cases filed against her were eventually dismissed or resolved in her favor. It
seemed that every week there was another media report about one or more of these cases filed
against Judge Hunter. But when she won her case or it was dismissed there was no media
coverage. This left the impression with the public that Judge Hunter was under siege by the
prosecutor, public defender, and media.
Judge Hunter was unable to defend herself in the media based on the judicial rules of
conduct. Nor was she permitted to defend herself in the First District Court of Appeals. These
suits filed against Judge Hunter all needed outside counsel to defend her because representation
by the Prosecutor created a conflict of interest if not an appearance of impropriety. How could
the prosecutors properly defend Judge Hunter when they had sued her, was still appealing the
ongoing elections case, 10 and was the subject of grievances filed by Judge Hunter based on their
State of Ohio Ex Rel. Hamilton County Prosecutor, Joseph T. Deters, COA Case No. C130682.
Judge Hunter won one case (State Ex Rel The Cincinnati Enquirer vs. Hunter, COA Case No.
C1300397, Entry denying writ dated October 16, 2013); one case was voluntarily dismissed
(State Ex Rel The Cincinnati Enquirer vs. Hunter, COA Case No. C1300759); and two appeals
were dismissed as moot by this Court (State Ex Rel The Cincinnati Enquirer vs. Kissinger, Ohio
Supreme Court Case No. 2013-1694, State Ex Rel Scripps Media Inc. DBA WCPO TV v. Hunter,
Ohio Supreme Court Case No. 2014-52); and one case was dismissed while Judge Hunters
motion to hear the case on the merits and to vacate the contempt order was pending (State Ex Rel
The Cincinnati Enquirer vs. Hunter, COA Case No. C130183).
9
Seven of these writ of procedendo cases were voluntarily dismissed and the remaining eleven
cases were eventually dismissed by this Court after Judge Hunters compliance with the writs
mooted her merits appeals. See Ohio Supreme Court Case Nos. 2013-1725, 2013-1726, 20131727, 2013-1729, 2013-1733, 2013-1734, 2013-1831, 2013-1832, 2013-1834, 2013-1835, 20131836.
10
Hunter v. Board of Elections remained pending after Judge Hunter was certified the winner of
the election. Both the Board of Elections and John Williams prosecuted their appeals until they
8
conduct on cases? 11 Over her written objection, the Hamilton County Prosecutor attempted to
represent Judge Hunter, but based on their handling of those cases, she had pro bono counsel
defend her in one of the media cases. The First District sua sponte struck her pro bono counsels
pleadings and notice of appearance. 12 With no representation on the case, she filed answers pro
se in her judicial capacity to defend the cases. Again, the First District sua sponte struck her
pleadings. 13
In 11 of the 18 writ of procedendo cases two outside counsel were eventually appointed.
However, these lawyers were not independent of the prosecutors office: they were personally
recommended by Prosecutor Joe Deters 14 and one made campaign contributions to his political
campaign. 15 Judge Hunter requested new counsel but her request was denied. 16 They never
defended Judge Hunter. Their inaction caused the First District to issue 11 judgments against
Judge Hunter when those lawyers failed to answer any of the complaints. If they had defended it
would have been a matter of public record that Judge Hunter had the highest caseload of any
Juvenile Court Judge in Ohio, according to reports released by this Court, and had the highest
caseload of both Juvenile Judges in Hamilton County, with over 100 more objection hearings
scheduled on her docket than Judge Williams. 17 Had the 11 writ cases filed against Judge
were dismissed on July 12, 2012. In addition, Judge Hunters attorneys motion for attorney
fees was pending until November 2013.
11
See State Ex. 21, Hamilton County Prosecutor Deters application for appointment of counsel
whom he chose.
12
State ex rel. Scripps Media, Inc. v. Hunter, COA No. 120241, Entry dated May 10, 2013.
13
State ex rel. The Cincinnati Enquirer, COA No. C130072, Entry dated June 3, 2013.
14
See Ohio v. Hunter Case No. B1400110, State Ex. 21.
15
See Deters for Ohios Future 2012 campaign finance reports.
16
See Ohio v. Hunter Case No. B1400110, State Ex. 24 and 25.
17
See Merits Briefs and Supplements filed in Ohio Supreme Court Case Nos. 2013-1725, 20131726, 2013-1727, 2013-1729, 2013-1733, 2013-1734, 2013-1831, 2013-1832, 2013-1834, 20131835, 2013-1836. These appeals were eventually dismissed by this Court as moot because Judge
Hunter had already issued the rulings.
6
Hunter been answered, it would have demonstrated that the majority of those cases were not
delayed, but were well within the established guidelines, especially since some of those cases
had been pending long before Judge Hunter took over the case.
This inability by Judge Hunter to defend herself and the ceaseless prosecutors attacks
fueled the medias relentless negative portrayal of her as she diligently worked to implement
rehabilitative policies and procedures in the Hamilton County juvenile court system, such as
unshackling children and exploring new training initiatives to reduce injury to employees and
children and reduce gun related offenses. Her efforts to institute juvenile reform came to a head
when Judge Hunter was accused of crimes by the people who fought to keep her out of her
Judgeship. Having watched the efforts to keep her off the bench and then to unseat her, we saw
injustice occurring. We Amici, members of our organizations, and our friends and family were
unable to stop the massacre of Judge Hunter. We had faith in the justice system after the federal
courts ordered the provisional ballots be counted, even though that took 18 months. But after
this unending onslaught of cases against Judge Hunter in the state court, where she was literally
left defenseless, weakened our faith in the justice system. The publics trust of the Ohio justice
system deteriorated further when the media reported in September 2013, that Judge Hunter was
being investigated for unexplained crimes after only 14 months on the bench, while she was still
acclimating to her new judgeship.
D. THE PROSECTUION OF JUDGE HUNTER UNDERMINED THE
COMMUNITYS TRUST IN OHIOS CRIMINAL JUSTICE SYSTEM
The media reported in September 2013 that a grand jury was being convened to
investigate allegations made by the Hamilton County Prosecutor that Judge Hunter had
backdated entries in order to prohibit the prosecutor from appealing her rulings. 18 These
charges were eventually dismissed. The Prosecutor Deters had a conflict of interest in pursuing
these charges so he requested R. Scott Crosswell and Merlyn Shiverdecker be appointed as
special prosecutors. The Common Pleas court approved his request. 19 Amici did not perceive
these two special prosecutors as independent. They were recommended by Prosecutor Deters;
they defended Deters when he was being investigated by a special prosecutor for a theft from the
property room and when Deters was Treasurer and his office was accused of misconduct 20
Croswells law partner 21 represented Deters in his divorce; and Croswell and Shiverdecker
contributed to Deters political campaigns. 22 The special prosecutors actions were repeatedly
challenged in a motion to dismiss for prosecutorial vindictiveness. 23
The most recent and disturbing concern about the prosecution of Judge Hunter did not
surface until January 13, 2016 when Judge Hunter filed a Motion To Dismiss Counts 1 - 4 For
Violating Her Due Process Rights To A Fair Trail By Destroying Exculpatory Computer
Evidence. 24 The motion challenges the States failure to preserve Brady exculpatory evidence.
Counts 1 4 involved two court entries Judge Hunters case manager entered on the docket
using dates that were different than the date the Judge signed each entries. Judge Hunter was
18
See Ohio v. Hunter Case No. B1400110, Ex. ZZ prosecutor Breyers memorandum to
prosecutor Deters.
19
See Stipulation of Judge Beth Myers, Ohio v. Hunter , Case No. B1400110, T.p. V. 29 at
3368-3369.
20
See Ohio v. Hunter, Case No. B1400110, Defendants Motion to Dismiss Indictment dated
June 3, 2014 and http://www.cincinnati.com/story/news/2014/06/03/hunter-dismiss-charges-duejoe-deters/9927213/
21
R. Scott Croswells firm is Croswell & Adams Co. LPA.
22
See Ohio v. Hunter, Case No. B1400110, Defendants Motion to Dismiss Indictment dated
June 3, 2014
23
See Ohio v. Hunter, Case No. B1400110, Defendants Motion to Dismiss Indictment dated
June 3, 2014 and argued on June 25, 2014 and December 14, 2015.
24
See Ohio v. Hunter, Case No. B1400110, Defendants Motion to Dismiss Indictment filed
January 13, 2016.
8
charged with 4 felonies over these two entries. The jury could not reach a verdict on these 4
charges. Before the re-trial, Judge Hunters new counsel conducted discovery and learned that
the two computers used by the case manager had not been preserved and one was wiped clean
and sold after the grand jury subpoenaed material from it but before the indictment was made
public. The State new that the computers used to create the two entries were material evidence.
Both the Deters office and the special prosecutors knew since August 2013 that computers were
once used by the case manager, not Judge Hunter. The motion accused the State of acting in bad
faith when it failed to preserve this exculpatory evidence; yet, the State never disputed the
allegations in the motion. Instead, on the morning of the retrial, the State dismissed these four
felonies, along with the five remaining felonies.
Prosecutor Joe Deters bias was palpable. In a radio interview with a local radio host of a
highly rated program in August 2013, Deters expressed anger that Judge Hunter filed an ethics
complaint against him and said that he wanted the Ohio Supreme Court to remove Judge Hunter
from the bench. 25 He then orchestrated a press conference 26 on the eve of the first trial, blaming
Judge Hunter for the tragic shootings of two children. Every major media outlet widely
circulated stories of Joe Deters accusing Judge Hunter of murder. The banner headline for one
report read Deters: Tracie Hunter rulings resulted in 2 deaths. His inflammatory remarks were
widely reported in the 4 days before jury selection began, clearly tainting the jury pool.
The substituted trial judge, Judge Dinkelacker, also appeared biased. While Judge
Hunters affidavit of disqualification was denied by this Court, 27 additional issues became
25
http://www.700wlw.com/media/podcast-bill-cunningham-bill_cunningham/joe-deters-82713hour-2-23639353/
26
http://www.cincinnati.com/story/news/courts/2014/09/04/deters-hints-tracie-hunter-rulingsdeadly/15040145/
27
Ohio v. Hunter, Supreme Court Case No. 15-AP-084, Judgment Entry dated October 20, 2015.
9
known that exposed how unfair it was for Judge Dinkelacker to preside over this case. First, the
prosecution planned to use as State Exhibit 22 at trial which is a contempt order Judge
Dinkelacker, a former First District judge, issued against Judge Hunter. 28 The prosecutors also
planned to quote from State Ex. 44, which is an order by Judge Dinkelacker dismissing the
prosecutors appeal in a juvenile delinquency case, where Judge Dinkelacker gratuitously wrote
for the First District dicta, chastising Judge Hunter: once again, this judge, has followed a
pattern of completely ignoring the statutory mandates and rules of procedure. They read this
sentence to the jury in closing argument. T.p. at 3543 (V. 30). Furthermore, the prosecution
intended to introduce State Exhibits 7, 9, and 11, all of which are opinions by Judge Dinkelacker
issuing writs of procedendo against Judge Hunter. To have the presiding trials judges orders of
contempt, disparaging remarks, and writs given to the jury, as they were in the first trial, would
cause unfair prejudice against Judge Hunter and further defeat her right to a fair trial.
Even the foreperson was biased. After trial it was revealed that the foreperson of the jury
withheld her bias against pastors. As a teenager she had been sexually abused by her youth
minster for three years. She did not truthfully answer the courts jury questionnaire or respond to
counsels questions. The foreperson spoke and wrote publicly about her distrust of clergy and
religion. She knew that Judge Hunter is a pastor; hence her concealment of her pastoral bias was
a material and prejudicial. Had she revealed her bias she would have been struck by defense
counsel. When this was revealed in a fully documented motion for new trial, 29 the court denied
it. Denial of the new trial further eroded the communities trust in the criminal justice system.
Appellate Courts are expected to remedy errors made in the trial court. But in this case
the appeals process was unfair because the issues and arguments Judge Hunter could raise on
28
29
appeal were restricted by the First Districts refusal to remove the case from the accelerated
calendar. The First District eventually did remove the case from the accelerated document but
that was done only for the purpose of publishing its decision. The severe page limit and the
inability to reply to the prosecutors arguments hamstrung the defense from presenting the best
possible appeal. For example, there were 51 instances of prosecutorial misconduct during the
brutal four hour closing argument, including making inflammatory remarks, interjecting personal
opinion, citing unsworn testimony, asking the jury to draw negative inferences from uncalled
witnesses and impugning the defense the cumulative effect of which denied Judge Hunter a fair
trial. Judge Hunter was relegated to attaching a summary instead of arguing them fully before
the court. 30 For example, the prosecutor stated, without any evidence in the record for support:
Maybe what Deters has to listen to is the social worker who says this child is
being sexually abused and we can't get this child out of the home because we
can't get Judge Hunter to rule on the case.
T.p. at 3816 (V. 31). Despite a vehement objection, the court did not strike this statement and
properly instruct the jury. The Courts acceptance of allowing this lie emboldened the
prosecutor to repeat it at T.p. at 3814, 3857.
The First Districts release of its opinion on the Friday before the second trial created a
media frenzy and served to further prejudice the potential jurors against Judge Hunter. Judge
Hunter repeatedly requested a motion for change of venue due to the enormous negative media
attention inundating the jury pool. She filed 1,500 pages of newspaper reports with reader
comments, television reports, radio reports, blogs, and twitter posts. 31 The first trial was
broadcast live and live blogged. The First Districts release of its opinion the Friday before the
30
Ohio v Hunter, COA 1400684, Appellate Brief Appendix B, filed July 24, 2015.
Ohio v. Hunter, Case No. B1400110, motion for change of venue filed April 3, 2014 and
supplements filed on December 18, 2015, December 22, 2015, and Jan. 19, 2016 and exhibits
submitted at hearings on December 14, 2015 and December 22, 2015.
31
11
second trial fed this media frenzy. Its release only 11 days after oral argument also created
suspicion that the decision was a rush to judgment merely to give the special prosecutors an
affirmed conviction to help them in their next prosecution.
Finally, it cannot be emphasized enough that the 9 dismissed felonies were never proven;
yet they lingered, hanging over Judge Hunters head, and reported in the media for almost 2.5
years. The eventual dismissal of the charges received minimal press coverage. These concerns
of delay in dismissing the charges, the jury and judge bias, prosecutorial vindictiveness,
destruction of exculpatory evidence, and the prosecutorial misconduct have caused Amici and
the community to have grave concerns that Judge Hunter was treated unjustly.
The reason Judge Hunter was treated so unfairly was revealed in the special prosecutors
closing argument when he misled the jury by claiming he did not want Judge Hunter to go to jail.
And I could tell you and I could give you my solemn oath and my word as a
professional that if, if she is convicted of these charges I would be the last person
to ask anyone to incarcerate her. That's not where I come from and that's not what
it's about. Not to me.
T.p. at 3799. Yet, he requested that a substantial prison sentence should be imposed during
sentencing. 32 What the prosecution wanted was a conviction in order to remove Judge Hunter
from the bench. By the time the criminal case is over it will have cost Hamilton County
taxpayers almost $2,000,000 to keep Judge Hunter off the bench. 33 Half of that number is slated
to pay the special prosecutors recommended by Deters. This waste of tax payer dollars is even
more egregious when the Ohio Attorney Generals Office of Special Prosecutors could have
handled the case for free. This is calculated, prolonged, wasteful, malicious prosecution is
32
Ohio v. Hunter, Case No. B1400110, prosecutors sentencing memorandum filed Dec. 4 2014.
Because the prosecutor unsuccessfully defended the elections civil rights case it paid the
attorneys who brought that case over $850,000 in fees and expenses. The County has paid the
special prosecutors $650,000 for work done through September 4, 2015 and has reserved another
$500,000 to pay their remaining bills.
33
12
nothing more than an outrage. It shows the community that justice is not only out of reach for
Judge Hunter, but for all African-Americans in Hamilton County who have fewer resources and
supporters than Judge Hunter.
In order to restore voters faith their elected officials will serve a full term, and
confidence in Ohios criminal justice system, we Amici Curaie urge this Court to accept Judge
Hunters appeal and give her arguments careful consideration.
CONCLUSION
If a Judge cannot receive a fair trial in Hamilton County, Ohio, how can the citizens of
this community including Amici, our membership, our family, our friends, our fellow
congregants have any hope there will be justice if they become involved in the criminal justice
system? For the sake of our community, justice, and fairness we respectfully request this Court
grant Judge Hunters petition to have her appeal heard by this Court.
ADDENDUM
The attached 188 pages contain the names of the over 2,147 Amici Organizations and
individuals on whose behalf this Amici Curiae Brief is filed.
Respectfully submitted,
/s Jennifer L. Branch
Jennifer L. Branch (0038893)
GERHARDSTEIN & BRANCH CO. LPA
432 Walnut Street, Suite 400
Cincinnati, Ohio 45202
(513) 621-9100
(513) 345-5543 fax
jbranch@gbfirm.com
Counsel for Amici Curiae
Cincinnati Chapter NAACP, et al.
13
CERTIFICATE OF SERVICE
I hereby that the foregoing pleading was served on all counsel by U.S. Mail First Class
and by fax on February 29, 2016:
Counsel for Appellant Tracie Hunter:
David A. Singleton (0074556)
Ohio Justice & Policy Center
215 East 9th Street, Suite 601
Cincinnati, Ohio 45202
Tel.: (513) 421-1108, ext. 17
Fax: (513) 562-3200
e-mail: dsingleton@ohiojpc.org
/s Jennifer L. Branch
Jennifer L. Branch #0038893
14
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