Themis, justice
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Prosecutors get away with just about anything, including falsifying evidence, coercing witnesses, and ruining lives — but that may change.

What happens when prosecutors break the law? Almost nothing.

Nina Morrison is a senior attorney with the Innocence Project in New York, and in this podcast she explains how homicide prosecutors like Glenn Kurtzrock face few consequences when caught concealing exculpatory evidence from defense attorneys. Kurtzrock — who was fired by the district attorney in Suffolk County, NY, after his misconduct was exposed — has never been charged with a crime, and has not faced any disciplinary action from the New York Bar Association.

Morrison explains the legal precedent of the Brady v. Maryland decision, which requires the prosecution to share all evidence in a timely manner, and how there is almost zero accountability. Morrison can claim the only known conviction of a wayward prosecutor, in a Texas case where her client spent 25 years in prison on a wrongful conviction because prosecutor Ken Anderson withheld critical evidence of the innocence of Michael Morton.

Anderson had become a judge, and was bounced from the bench and disbarred, but only served six days of an eight-day sentence in county jail.

Morrison notes that about half of 2,200 exonerations are attributed to “official misconduct,” and that many of the 28 exonerations she has won were the result of prosecutorial violations of the law.

We also discuss a powerful commentary by Frederic Block, a federal judge in Brooklyn, who is outraged not only by misconduct, but by a Supreme Court ruling in Taylor v. Kavanaugh that explicitly grants immunity to prosecutors — even for “the falsification of evidence and the coercion of witnesses.”

Recently, both houses of the New York State Legislature have passed bills creating a new commission to investigate misconduct by prosecutors; it awaits Gov. Andrew Cuomo’s (D) signature.

Read Nina Morrison’s New York Times op-ed here.

Read Judge Frederic Block’s commentary here.

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Full Text Transcript:

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Peter B. Collins: What happens when prosecutors break the law? That’s the question we’ll explore today on this WhoWhatWhy podcast.
I’m Peter B. Collins in San Francisco. I’m joined today by Nina Morrison, who is an attorney with the Innocence Project based in New York City. She previously worked here in California on the California Appellant Project, where she provided legal counsel to inmates on death row at San Quentin Prison, which is just about a half mile from where I sit right now. Nina Morrison, thanks for being with us today.
Nina Morrison: Thanks for having me.
Peter B. Collins: The question that I opened with was the headline in a recent op-ed that you published on June 18th in the New York Times. I don’t want to be snarky or too nasty about it, but the simple answer to the question what happens when prosecutors break the law is almost nothing.
You have explored this in a number of cases. What are the central issues related to prosecutor misconduct and the failure of our system to provide accountability?
Nina Morrison: There’s usually a few ways that the justice system in America holds people accountable who break the law. There’s the criminal justice contacts, where we prosecute people for serious law breaking, who have committed crimes, in our criminal courts.
There’s the civil context, where we sue them for money, often as a way to deter others from committing the same bad acts again. Then, the third way is if they’re a member of a professional association where they have a license, like a lawyer, a doctor, or a pilot, is the agency that regulates them can take away their license.
In all three areas we see typically very little to absolutely no accountability for prosecutors. Each for different reasons, but all reflecting a long-standing trend that prosecutors, even those who commit really serious misconduct, tend to be in practice above the law.
Peter B. Collins: There will be a link to your commentary in the show file for this podcast at and I encourage listeners to take a look. You describe the incredible array of cases attributed to a single homicide prosecutor in Suffolk County, New York, Glenn Kurtzrock. His work has been exposed as behind a number of wrongful convictions. One of them is the case of Messiah Booker. Can you give us a thumbnail of his case, please?
Nina Morrison: Messiah Booker was prosecuted for murder. He wasn’t actually convicted because all of the evidence supporting his innocence that Mr. Kurtzrock, the trial prosecutor, hid was actually discovered by Booker’s very diligent defense lawyer, Brendan Ahern, right in the middle of the murder trial.
It was a stunning turn of events that took place here near me in Long Island last May, May of 2017. It was stunning both because of the wealth of evidence that the prosecutor concealed, there was literally hundreds of pages of documents that he was legally obligated to turn over, told the defense he didn’t have, and actually took the covers off of police notebooks to hide what he was hiding and make it look like he hadn’t removed any pages. Really extraordinary stuff.
When it was discovered in the trial, to the district attorney’s credit, then District Attorney Tom Spota, promptly fired Mr. Kurtzrock for misconduct, made a public statement, not flinching from what had happened, and ultimately dismissed the murder case against Messiah Booker, who was allowed to plea to a much, much, much, more reduced charge of attempted robbery in which he’d only serve about three more years in prison and then he could be released to be with his family.
After Kurtzrock was fired, the D.A.’s office announced that they would review additional cases. There have since been four other murder charges that have been thrown out either in the middle of prosecution, or in one case after the person was already convicted and did several years in prison, because of the same thing. Kurtzrock was holding exculpatory evidence.
What’s really extraordinary about that case is that nearly 14 months after this misconduct came to light, Glenn Kurtzrock is still practicing law just like I am, just like all my colleagues here at the Innocence Project and down the street at the prosecutors’ office who haven’t done anything wrong.
I’m pretty cynical based on my experience about the Bar Association’s ability to act quickly and the Disciplinary Committee’s ability to take action against people who commit misconduct, especially prosecutors, but even I was surprised that Glenn Kurtzrock still has his law license more than a year later.
He is representing indigent people accused of crimes, and people who hire him in private practice, so he’s making money off his law license. His website even touts his experience as a former homicide prosecutor, and then goes on to talk about the guilty verdicts he’s obtained.
One of them is the case of a man, Shawn Lawrence, whose conviction got thrown out. After the evidence of Mr. Kurtzrock’s misconduct came to light, the courts had overturned it, and then the DA’s office came in and said, “We’ve discovered that he withheld all this evidence, so we’re going to dismiss the whole case.”
I think that’s a sign of just how brazen Mr. Kurtzrock feels he can be. He seems to think, and so far he’s been proven right, that other than losing his job and being temporarily unemployed, nothing’s going to happen to him, no matter what he did.
Peter B. Collins: Nina, please explain to our listeners what the Brady ruling was about, what a Brady violation is, and the extent to which the suppression of evidence in some of Kurtzrock’s cases were in violation of the Brady standard.
Nina Morrison: In 1963, the US Supreme court issued a decision called Brady v. Maryland in which the court said that the US Constitution requires prosecutors in both state and federal court to turn over to defendants and their lawyers, before a trial, in as timely a manner as possible all evidence that is favorable to them.
It can be something that absolutely proves your innocence, like you weren’t there, an alibi, forensic evidence. In subsequent cases the court went on to apply the Brady rule to evidence that undermines a state’s witness, so a witness says, “That’s the person I saw,” but then the prosecutor might have evidence that the witness was in a different location at the time or had given false testimony in several other cases, or had a motive to lie. All kinds of things that might cast doubt on their credibility. Different statements they gave with different versions of events.
It’s something of a strange system in that in most places defendants don’t have a right to see what’s in the state’s file, what’s in the prosecutor’s file, or at least not much of it until the trial starts.
Even then, there are some restrictions. Except that prosecutors are entrusted to go through their files and all the information they have and decide what they’re going to give the defense. It’s up to them to sort of enforce their own rules, and to hand over something that by definition tends to hurt their case. They think the person did this crime. They have to hand over evidence that is going to make a jury possibly more likely to find them not guilty.
We don’t do that in sports. We don’t tell the 49ers to turn over to the Cowboys the scouting report that says the quarterback is weak on the right side so that they know to throw the ball that way. In no other system really do we have an adversarial test or proceeding where one side is entrusted to hand over the thing that hurts them.
That said, many prosecutors, most of them, take this obligation very seriously. If there are mistakes made they’re typically unintentional, not understanding a law, not understanding the significance of the evidence, being overloaded with the demands of the very hard jobs they do. But there are some cases, like the ones that Mr. Kurtzrock handled, where it’s clear that the violations were intentional.
In Messiah Booker’s case, in the case of another man named Shawn Lawrence, there were numerous items of evidence that directly supported the defendant’s claims of actual innocence that were withheld, and that’s why it was so bad.
It isn’t just defense lawyers saying it. In those cases, and in several others, it’s judges that make the finding. The judge in one of Mr. Kurtzrock’s cases said the misconduct was absolutely stunning and a travesty. I’ve had cases where the judges called out prosecutors for egregious and intentional misconduct, and they are all still practicing law today.
Peter B. Collins: Nina, from your perspective how does this work in practicality? Did Glenn Kurtzrock tell his boss, the district attorney, that he was suppressing evidence in the Messiah Booker case, or is this done with a kind of a wink and a nod and the district attorney, him or herself, sends the message “we want a conviction and you do what it takes”? What are the signals that get sent back and forth inside a prosecutor’s office regarding the use of evidence?
Nina Morrison: Yeah, that’s a great question. I’m not privy to the discussions that went on between Mr. Kurtzrock and his bosses when this was discovered. This was discovered not because he confessed what he had done. It was the diligence, and in some extent the lack of a very good defense lawyer who smelled a rat and kept pursuing it, and then figured out pretty quickly that there were gaps in the material he’d been given. He could well have missed it. It was extraordinarily lucky and a reflection of his commitment that he found it.
In some other prosecutor’s offices there is a real win-at-all-costs culture. We are actually at the Innocence Project doing a lot of work, cooperative work, with prosecutors who want to do better, who say, “I want to create a culture where people can ask questions about what they don’t know, where things besides winning big trials and getting long sentences are valued.”
We’ve been working with them. I’ve been advising some offices in how to even redo their evaluations of prosecutors so that they can appropriately credit when they don’t prosecute a case or dismiss a case because their investigation shows that the evidence really isn’t there.
There is a growing national trend of electing district attorneys who see justice as a multifaceted tool, and that it doesn’t just mean convicting people and sending them to prison for a long time, that justice has a much broader meaning.
That culture really contributes to preventing wrongful convictions. There are also a number of DA’s offices, including in Northern and Southern California, that have started what are called conviction integrity units where they have staff in their offices that are dedicated to reviewing claims of wrongful convictions.
They’re independent from the rest of the office, they typically report directly to the district attorney or someone else very senior. Their job is when somebody writes in or calls and says, “I was convicted of something I didn’t do,” is to take a fresh look at the case. That’s a really radical and welcome trend that we’re starting to see in more and more offices.
Peter B. Collins: Well, in San Francisco the district attorney, George Gascon, who has launched an initiative like that, I find it interesting because he was a police chief before he became the DA. There’s a culture of coverup, in my opinion, in law enforcement, again, seeking to win a conviction even if corners have to be cut along the way.
I think it is noteworthy that we are seeing some progressive district attorneys acknowledge that there were failures in the past and they’re willing to address them.
Nina Morrison: Yeah. It really sends a message that that’s not … That getting the conviction is not the only thing that’s valued. It comes from the top in these offices and it’s a bright spot in what’s often a very bleak picture, so we’re … We’ve worked cooperatively with a number of those units.
That doesn’t change the fact that where serious misconduct is discovered the rest of the system really needs to step up. Most prosecutors work hard and play by the rules, but when there are those who break the law and really can be shown that they did it not negligently but intentionally there need to be stiffer consequences.
There has only to date been one prosecutor in the entire United States who has ever been convicted of a crime for misconduct leading to a wrongful conviction, even though there have been thousands of exonerations of innocent people, many of whom were …had their cases tainted by misconduct.
It was a client that I had represented, a man named Michael Morton in Texas, who suffered everyone’s worst nightmare. His wife was murdered and he not only lost his beloved wife, and the mother of his only child, but was sent to prison for 25 years wrongfully accused of her murder.
It turned out that Michael’s wife was killed by a serial killer who had murdered another young wife and mother two years later after Michael went to prison in a neighboring county.
We were able to solve the crime with DNA evidence, but in the course of that investigation the Innocence Project and our co-counsel in Texas discovered that there had been eyewitness statements and other evidence in the trial prosecutor’s file that would have cleared Michael even back in 1987 when he was tried.
In a really rare and extraordinary step, there was a mechanism in Texas through which we could petition the court to bring charges independent of the prosecutor’s office, and the judge agreed with us that the conduct was criminal.
A special prosecutor was appointed from outside the county. This man, Ken Anderson, who had gone on to become a judge, was disbarred and convicted of criminal contempt. He did less than eight days in jail. He was sentenced to eight days, and he got out early for good behavior.
It sounds like nothing, and something of a joke, compared to the quarter century that Michael did. There’s no way to compare the two, but it sent a real message. It was important. It’s not often that I think of the law as being a very effective deterrent to crime, but Mr. Anderson’s photograph in an orange jumpsuit was on the front page of the local newspaper. That sent a strong message to prosecutors all around Texas that if they break the law they just might be held accountable for it.
Peter B. Collins: Well, that is some measure of a-
Nina Morrison: We heard from a number of prosecutors who thought he should’ve gotten more time and were glad we did what we did.
Peter B. Collins: I certainly accept that this sends a message and he did lose his job as a judge, and he was sentenced to eight days and got credit for time served. This shows the special treatment that those who are inside the prosecution and judicial side of the criminal justice system benefit from.
Nina Morrison: Yeah.
Peter B. Collins: When we look at the failure of state bar associations to discipline egregious offenses that are on the public record, citing privacy and confidentiality concerns, these are secret courts that adjudicate the offenses of the people who operate in the public courts.
Nina Morrison: Yeah. That’s right. These are typically bodies that are created either by the Supreme Court in a state or by the legislature. There’s nothing permanent about those rules. They can be changed.
If you’re in a state where bar proceedings for public officials are private I can understand it a little more for someone who’s an attorney in private practice and something out there in the public that’s not true can reduce their livelihood, but if someone’s being paid their salary by the taxpayers, and they’re accused of breaking the law or committing a serious ethical violation, why should those proceedings be private?
Criminal trials aren’t private. If I’m accused of a crime my trial isn’t going to be private. There are ways to change that. You can petition the legislature to make those proceedings public.
The other thing that we are working on, which may take place in New York later this year, is to pass bills creating special commissions on prosecutorial conduct. That would create a special body that’s independent of the bar disciplinary process that could hear citizen complaints and concerns about prosecutors’ conduct, have the power to conduct investigations, and make recommendations only to the governor, but recommendations about what should be done in a public and transparent way.
I’m pleased to say that just a couple of weeks ago the New York State Legislature in a rare bipartisan move overwhelmingly passed the bill creating such a commission in New York and it is headed to the governor’s desk for signature sometime in the next few months.
Peter B. Collins: Do you have an education if-
Nina Morrison: So we are waiting to see if Governor Cuomo will sign that bill, and we are cautiously optimistic that he will.
Peter B. Collins: You are? Okay.
Nina Morrison: We’ll see. I don’t have access to the internal decision-making, and the District Attorney’s Association has come out very strongly against it, but Governor Cuomo has made very powerful statements about his commitment to justice and due process. He has been a great supporter of the Innocence Project and many of our colleagues. We know he will look at this very seriously.
Peter B. Collins: Nina Morrison is my guest from the New York Innocence Project. Nina, you sent me a link to a powerful commentary by a sitting federal judge, Frederick Block. He is on the bench in Brooklyn. He presided over the post-conviction of process where a man named Jabbar Collins, who was sentenced to 16 years in jail for a murder that he didn’t commit, he brought suit against the prosecutors for his wrongful conviction.
It was Judge Block who drew the assignment. He said that while he doesn’t lose sleep for sentencing murderers, rapists, gangsters, drug lords, and stock cheats, he said, “I do lose sleep over the Collins case and the rash of wrongful convictions that are continuing to be uncovered to this day in Brooklyn.”
For people who aren’t familiar with the five boroughs of New York, we were talking about Suffolk before. That is separate. Brooklyn has its own set of wrongful convictions. This judge is courageously going public to address this. Just his public commentary on it is highly unusual, isn’t it, Nina?
Nina Morrison: It is, it is. One of the things that Judge Block talked about in his article, which we haven’t discussed yet in this show, is the issue of whether prosecutors, never mind getting criminally prosecuted or getting disciplined, but can even by sued for the actions that cause a wrongful conviction.
If a police officer hides evidence of someone’s innocence, deliberately and intentionally, they can be sued, and both they and typically the city or the county that employs them can be sued by the person who was the victim of that tort, that wrong. They violated a convicted person’s civil rights, an innocent person who shouldn’t have gone to prison in the first place.
After they’re exonerated the clients can sue the police officer and those who employ him typically for violating his rights.
If the same evidence, and at the end of that suit if it’s meritorious, is that they can often receive a substantial amount of money, none of which can compensate them for the time that they lost and were deprived of their liberty and their life with their families, but at least it is some way to try to make it right and hopefully create an incentive to have systems improved so it doesn’t happen again.
But, if a prosecutor does the exact same thing, the exact same piece of paper, the exact same physical evidence, and they conceal it, at just about any stage in the process after the person is indicted, when the prosecutor is assuming what’s called the role of the advocate, the court has said that they are absolutely immune from lawsuits.
As Judge Block explains in his article, the rationale is that prosecutors are considered by the courts to have such broad discretion, and that their work will be so harmed if people are challenging their decision-making and suing them because they did or did not prosecute someone, or made a judgment call that was wrong.
As Judge Block argues, we’re not talking about judgment calls. We’re talking about egregious intentional misconduct. Why should they get a free pass and never have to answer for what they’ve done? Why should the innocent person be any less entitled to compensation for what’s happened to them because the person from law enforcement who wronged them happens to have a law degree as opposed to a police badge? It just makes no sense.
Peter B. Collins: Here’s a quote from Judge Block’s commentary, “According to Taylor vs Cavenot, based upon Supreme Court law,” quote, “The falsification of evidence and coercion of witnesses have been held to be prosecutorial activities for which absolute immunity applies.
Similarly, because a prosecutor is acting as an advocate in a judicial proceeding, the solicitation and subordination of perjured testimony, the withholding of evidence, or the introduction of illegally-seized evidence at trial does not create liability in damages.” This is astounding.
He goes on to write, “The law goes on to say that the rationale for this approach is sound. For these protected activities, while deplorable, involve decisions of judgment affecting the course of a prosecution.”
Here the judge goes into his own voice, “I question the soundness of this rationale. The solicitation and subornation of perjured testimony, the withholding of evidence, or the introduction of illegally-seized evidence at trial are not decisions of judgment. They are truly deplorable intentional acts, the antithesis of the exercise of judgment. Professional prosecutors charged with the awesome responsibility of faithfully applying the law to guard against innocent people being convicted of crimes they did not commit should be held accountable for such conduct.”
Nina Morrison: Yeah.
Peter B. Collins: That’s a very strong statement, but I am outraged at the language of Taylor vs Cavenot and the brazen way in which it justifies illegal behavior.
Nina Morrison: Yeah, and there was a major US Supreme Court case that was decided in 2011 called Connick v. Thompson out of New Orleans in which the Supreme Court not only reaffirmed all of this immunity, but then said that even the bosses who employ the prosecutors cannot be sued for policies and practices that cause these wrongful convictions and lead to misconduct — unless you can show that there are multiple violations that result.
Even a single act of egregious misconduct that results from an official policy can’t be the basis for a lawsuit unless you can show that it happened not just once but several times.
The courts have made it almost impossible to sue prosecutors. There’s some very narrow exceptions. We’re looking into a few cases where we think that there may be a pattern and there might be a little way to thread the eye of that needle, but the real solution, as Judge Block says, is for the courts really to end that doctrine, or at least limit it and make … Put police officers and prosecutors at least on the same playing field when it comes to accountability.
Because police officers are often surprised when I tell them if you or one of your colleagues doctors a piece of paper to frame somebody for murder you can be sued, but if the guy down the hall who happens to have a law degree does it when he’s handling the trial, he gets a pass. They’re often astounded by that, as they should be.
Peter B. Collins: Yeah. Do you see any-
Nina Morrison: But that’s something… Congress can change that law and folks should ask if they go to town halls, they go to speak to their representatives, what do they think about changing the law on immunity? There are some states that may have legal provisions they can change to make it easier for prosecutors to get sued.
It’s not something we should take lightly. We don’t want their work to be burdened by frivolous lawsuits, but there are ways to do it that balance the need to protect their truly discretionary decision-making that’s the honest exercise of judgment from things that really are egregious and intentional. It’s a very small number of people who do this fortunately, but the ones who do really make everyone else look bad.
Peter B. Collins: Well, Nina, here in Marin County the district attorney is retiring, so three people are running for the office. Two cleared the primary. I host a local cable TV interview show here, so I invited each of these three candidates to come on. In each case I asked them about Brady and how they would respond to one of their prosecutors who violated these rules.
It was interesting. There was one who flat out said she would fire a prosecutor who was proven to intentionally violate Brady, and the other two said they’d take it very seriously, but they came up short in terms of guaranteed accountability.
This is another way that citizens can get involved in the electoral process and quiz candidates before they get to power of district attorney to find out their mindset about protecting bad DAs.
Nina Morrison: That’s right. The Innocence Project doesn’t endorse candidates, but we do really encourage people to educate themselves on the issues and vote. Such a small percentage of people vote in district attorney elections.
Often in counties that are heavily favored to one party or another the primary elections really decide the race and are dispositive. A few hundred votes can tilt the outcome, so when people take an interest in their local prosecutors races they can have a huge impact and really change the priorities and the practices of those offices going forward.
Peter B. Collins: Finally, Nina, in your op-ed you noted that there have been roughly 2,200 exonerations in the last 25 years or so, and that the estimate is that fully half of those, or about half, are the result of prosecutorial misconduct. You yourself have been lead counsel or co-counsel for 28 prisoners who have been exonerated. Does your experience mirror that big data number? Were about half or more of them victims of prosecutorial misconduct?
Nina Morrison: That data, just to clarify, it actually is a number maintained by a group called the National Registry of Exonerations, which is based at UC Irvine, a really terrific research group.
That statistic is for the cases they found that involve official misconduct of any kind. That could include police prosecutors or other law enforcement agencies. They have yet to break it down specifically by prosecutors, in part because it can be so hard to determine who on the law enforcement side possessed particular evidence at a particular time.
That’s been true in a lot of my cases. I have a few that I know for sure because the evidence is clear or we’ve gotten court findings that individual prosecutors had favorable information and deliberately withheld it. I have others that I know it was in the police file and I don’t know who saw it and when. I just know that it wasn’t turned over.
Then there are other cases where someone is wrongly convicted through a series of horrible and tragic mistakes, but where we don’t have any information that anyone intentionally did anything wrong. The cases where there is wrongdoing, accountability really matters.
Peter B. Collins: I’m here in California, so I don’t want to misjudge New York, but the Central Park Five, Jabbar Collins. I’ve recently become aware of a man named Jeffrey Deskovic who spent 16 years behind a false conviction.
Nina Morrison: Yes, he was one of my clients, and the youngest client I ever represented. He was 16 when he went to prison.
Peter B. Collins: Really? Is New York … Is there more prosecutorial misconduct in your view in New York than in other jurisdictions?
Nina Morrison: No. We really don’t know. We’ve had a lot of exonerations in New York. There have been a lot in California, Texas, some of the bigger states, and frankly the states that have better funding for lawyers and more lawyers able to do this work.
It’s just the tip of the iceberg. We really don’t have a dataset that can tell us how common this is. In part because by definition prosecutorial misconduct, and the withholding of exculpatory evidence, tends to stay hidden.
I can tell you if you want to know how things had been going for a while in California, there was a big study by a group called the Veritas Initiative of California cases where they looked not at exonerations, but just at court findings of Brady violations or other misconduct by prosecutors between 1997 and 2009.
They found violations reported in 707 cases, but there were only six cases in which any disciplinary action at all was taken against prosecutors as a result, so six out of 707. Now, not all of the 707 were ones that necessarily merited serious discipline, but certainly it’s hard to imagine that more than six did.
That’s a state where judges are required by law to report prosecutors to the bar if they discover misconduct, and typically don’t do it, or at least up till 2009 haven’t been doing it.
Peter B. Collins: Well, Nina Morrison, thanks for sharing your expertise and experience here. I recommend the op-ed that she wrote on June 18th in the New York Times. I hope you will continue your work and help expose some more bad prosecutors.
Nina Morrison: Thank you so much, Peter.
Peter B. Collins: Thanks for listening to this Radio WhoWhatWhy podcast with Nina Morrison. I’m Peter B. Collins inviting you to support our independent investigative journalism work here at WhoWhatWhy. Make a contribution today if you can.

Related front page panorama photo credit: Adapted by WhoWhatWhy from equal justice (rachaelvoorhees / Flickr – CC BY 2.0).


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