Early Republic: party battles drew in court and John Marshall.
Ct dealt with small housekeeping issues only
Appointment of Marshall blocked Jefferson from naming own chief justice.
Infuence of French revolution as it turned to violence: Jefferson more favorable in interpretation than federalists. Jefferson rejects Hamilton's idea of a standing army. Marshall second cousin of Jefferson, but estranged -- each believes the other endangers the constitution. 1801 second revolution of Jeffersonians, riding people power to presidency. This raised fears among Federalists. Jeffersonians in congress blocked SCOTUS from meeting for a year.
Marbury v Madison, on paper merely a small technical housekeeping question, but would test the ability of the court. Adams stuffed the courts with anti-Jeffersonians, 17 commissions left unsent. Jefferson realized fairly quickly that his apparent victory in the case was hollow, because opinion established judicial review. SCOTUS could strike down any law repugnant to the constitution. But nothing in the Constitution gave the SCOTUS that power -- unlike, say, presidential veto power. 1803 SCOTUS with power to decide election was laughable -- facilities were minimal in that era. Marshall dropped red (British) robe in favor of plain black, to avoid antagonizing Jeffersonians. Anxious to avoid further antagonizing Jeffersonians. Marshall also had them live in same boarding house for the 6-8 weeks in mosquito infested DC, and was convivial host. Marshall scrubbed court of taint of politics, then led it to a sweeping agenda. Era of remarkable discoveries in natural science, and Founders are animated by idea of discovering laws of political science. assigned powers both to federal government and individual states. but unlike natural world, politics is not governed by fixed laws. Jeff and Marshall embodied the distinct views of the Republic, with Marshall the nationalist. Lt. Marshall survived Valley Forge, where scarcely a man had shoes or proper clothes. Continental Congress requested supplies but lacked power itself. drew lesson that greatest threat to republic came from state legislatures Marshall post war saw himself as citizen of nation, not of Virginia applied the few clauses of Constn that limited states. Fletcher v Peck, derived from Georgia's near bankruptcy 1795, when it sold off land to northern speculators. Marshall himself a land speculator, believed in private contracts and landed ownership. 1810 opinion stretched the case to the contract clause, found Georgia part of US empire and could not invalidate private contracts. 1819 McCulloch v MD, Second Bank of the US, chartered by Congress as a profitable private monopoly, scapegoat for depression and panic, esp. in south (MD) and west (OH). MD taxed US bank in Baltimore, rejected by McCulloch as head cashier. Case heard in new temple courthouse. power to tax is the power to destroy Congress may establish bank through interstate commerce clause national government established by people, not just by states (forerunner of government by & for the people) Slavery basis of economy in MD and VA -- previously Jeff and Marshall agreed on need to emancipate and repatriate slaves Jeff opposed vehemently as dangerous to southern economy President Jackson ruthless in battle, accomplished duellist, still had slugs in body appointed states righters and pro-slavers to SCOTUS boarding house broke up into separate houses Georgia, discovering gold on Cherokee land, wanted to remove them in favor of whites -- led to 2 cases Jackson supported Cherokees Marshall convalescing from bladder surgery without anasthetic and bereaved for wife. Marshall found GA's seizure of indian lands was unconstitutional Jackson remarked "now let him enforce it" rare for presidents not to enforce SCOTUS opinions Jackson forced them onto trail of tears to west, without land to travel to Marshall suffering, and was losing political tide feared centrifugal forces would tear nation apart died 1835, but Union held -- even Jackson had defended Union against southern secessionists Jackson did appoint Roger Taney, states' righter to Court. Slavery did divide union -- but MO compromise had held together by using line of latitude to balance slave and free states 1821-1854. Dred Scott case, slave had been taken to free territory, therefore free man. Taney found free soil laws are unconstitutional, struck down act of congress, first time. Disastrous opinion that solved nothing
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Mr. Justice Brennan (PBS, 1996)
author unknown; edited by Jeremy Lewis
William Joseph Brennan Jr. architect of modern Bill of Rights. No individual had more impact on policy in 20th century- 1200 opinions. “Majestic generalities” of bill of rights- dignity of individual. Ruth B. Ginsburg- he expanded “we the people” Liberal but gentlemanly permissive. Mid 50’s on New Jersey constitution- approved by DDE to attract Democrats. Brennan had opposed McCarthy- earned respect- but like Earl Warren, DDE considered a mistake Brennan the consensus builder, intellectual powerhouse.
14th amendment a promise to former slaves but not fulfilled until Brennan
Brown vs. Board of Education (2 years before Brennan) -- but "with all deliberate speed." Cooper vs. Aaron written by Brennan (Little Rock Arkansas, Gov. Faubus defied federal government) President Eisenhower ordered federal troops to protect the African American children Brennan- had no enforcement power. State refused worst violation of law Green opinion: disegregate now
Heritage as Irish Catholic
To be above race, must consider race: disadvantage has continued too long Scalia disagrees- for colorblind constitution, not affirmative action
Father immigrated 1842, Labor leader, bloodied by police grandfather jailed but acquitted for IRA activism. graduated from U.Penn, Harvard Law (Dad New York City Commissioner- he helped and observed) came of age in Depression 1930 father died, took work as lawyer with outlook of assisting the oppressed
Rights for poor (right to life)
women on economic frontier [marginal] to Brennan, discrimination over gender was irrational Frontiero v Richardson, (1970) woman Air Force officer did not receive housing benefits for her husband, unlike male officers for their wives era of paternalism, protective legislation for workplace Argued by Ruth BG. remoantic paternalism was swept away by the decision Roe vs. Wade (1973) a Blackmun opinion, seen as men making decision for women- but was seen as creating right to privacy not found in Constitution. Brandeis- right to be left alone. Brennan only Catholic -- difficult decision. Personal and church opposition to abortion versus women's rights.
Role of justices?
14th amendment: property rights not taken away without due process of law. Access to welfare benefits, preventing arbitrary cutoffs, without a hearing. Goldberg vs. Kelly benefits cut off because of one missed meeting with social worker. Scalia -- might agree with statute version, but disagree with Brennan’s writing it into constitution. Disagree with majority of judge’s view of adapting constitution. "Results-oriented" rather than constitution oriented. Feiler vs. Doe (1982) since illiteracy is a permanent disability, kids of illegal immigrants would be educated
Caseload- 100 per session; heard 16,000 daily discussions with clerks.
Limited to 200 year old document (originalist, or strict constructionist), or to interpret it as a living document for the current age. Brennan- What do words mean in our time?
Brennan- if it’s a properly prepared constitutional question, by golly we have to answer it.
Required entering nontraditional area of politics -- but democracy was broken as population had moved to cities from rural areas. Baker vs. Carr (1962) Tennessee not reapportioned in 20th Century. Some districts 10 times the size of others. One person, one vote interpeted as same population per district Now reapportionment every decade, and same size. Later struck down limits on self spending
Freedom of the Press
majority building- Brennan visited, coaxed, persuaded, best at obtaining 5 votes- assigned Scalia to write opinion to strengthen his belief in majority views Irish charm and persuasive writing "Give me five and I'll show you an opinion" -- Brennan to clerks
Freedom of Speech
NYTimes vs. Sullivan (1964) paper liable for minor inaccuracies in reportage on police actions on civil rights. “reckless disregard for truth” required for libel in state laws in cases involving public figures Scalia- constitutional interpretation not based on 1791, went too far in resolving real problems.
Dissenting in last years, as Brennan found himself in minority
1989 TX Flag burning case Texas v Johnson- Government may not prohibit expression of an obnoxious idea John Paul Stevens pro flag protection & decorated veteran (Bronze Star), critical of opinion Scalia pro freedom of speech, including flag burning
not a violation in itself of 8th amendment's ban on cruel and unusual punishment- Brennan dissented -- related to dignity of human being. Dissenting in later cases- especially Death Penalty
Themes of Dignity and Fairness Benchmarks of human liberty- many opinions serve as reference points for other nations Brennan continued to work in office daily, after retirement 34 years on: Dream (Like John Marshall) to make “We the People” a reality- R.B.G. Succeeded by David Souter (Bush)
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Jennifer Thompson, in Burlington NC Dark night, intruder knocks college woman to floor, talks, begins rape. She attempts to see perp's face in dim lights, over several hours, then on a pretext escapes Neighbors let in victim, recognized her from college.
Detective, Mike Golden, with an excellent record, began collecting evidence of bodily fluids, hair, smears, with kit. Demeaning to victim. Police were searching neighborhood for assailant. Call received of rape victim less than a mile away. Detective indicates believed same perpetrator. Victim found it difficult to identify details of face, but retained composure Composite sketch widely publicized Next day tip about Ronald Cotton at Summer Seafood restaurant, in area. Cotton had police record of attempted rape on 14 yr white female, and another incident Said to have touched white waitresses Photo spread of six mugshots, took several minutes, picked photo of Cotton, and immediately confirmed by detectives as having a prior record.
Law Professor: archetypal southern crime -- but on closer observation, did not fit.
Cotton confirmed, under arrest, but wallet indicates is brother Calvin. Foam rubber at Jennifer Thompson's crime scene seems to match athletic shoe of suspect. Ron Cotton walks into police station, claims innocent with alibi, out with friends. Police unable to confirm alibis, strongly suspect Cotton. Counsel appointed to defend Cotton. Line-up of six black men, walk up, speak a phrase from incident, turn away. Jennifer has 4 & 5 repeat -- and picks 5, Ron Cotton. Detectives tell her that is same guy as in photo. She is now doubly sure. Victim #2 repeats, picks #4.
Doubts, second trial:
Prosecuting only for Jennifer's case because of ID. Physical evidence unconvincing, but a strong witness, who explained carefully to jury. Perp had robbed wallet while she was sleeping Jury had sympathy for victim, experiencing fear. Defense argued mistaken ID, but jurors often believe ID. racial component of white defendants with black suspect. Cotton had mixed up dates, 3 alibis changed from being with girlfriend at motel to being with mother on that night. Cotton's family all testified consistently -- but seemed like a conspiracy Second victim had identified innocent stand-in #4 -- defense relied on this, but judge excluded this from trial.
Acquittal and release:
1985-1986 Cotton in prison dorm and kitchen with Bobby Pool, likely perp., confirmed by other inmates and cellmates who claim Pool confessed privately. Pool testifies under oath, denying 2 confessions, and both victims say Cotton not Pool was perp. Jennifer had already sworn for 2 years that Cotton had raped her. Evidence of Pool is therefore excluded from trial. Cotton sings to court, composed a gospel song, convicted by second jury.
Psychologist, Loftus, explains faulty memory:
Defense counsel, law professor, notices minimal evidence other than eyewitness testimony DNA testing now possible, 1995, if old evidence can be harvested, and evidence had been reserved. Detective, Mike Golden, reopens case and has a difficult conversation with Jennifer. DNA evidence clears Cotton after 11 years. Jennifer feels overwhelming guilt. 20,000 violent offenders' samples kept -- Pool matched and he confessed. Cotton: "it has been pure hell." Janet Reno, AG, keep eyes open for any evidence. Cardoso Law School Innocence Project, Barry Sheck: DNA testing confirming "that eyewitness testimony is an even worse problem than we suspected." Detective Golden: old training was that a good case probably got a true conviction -- but this case overturns that belief.
eyewitnesses make more mistakes when ID'ing stranger of different race - even without prejudice we scan faces differently Detective: how can we do things differently Photo spread: police should avoid giving cues and strengthing witness's opinion. Even more true for other assualts and robberies where only fleeting glimpses of perps.
Cotton went to work at the DNA lab -- but why has Jennifer not spoken to him? Jennifer, I have to accept the science, but I still see Cotton in memory, cannot erase and replace image with Bobby Pool. After program, she did contact Cotton privately for two hours, and he forgave her. NC awarded Cotton $100,000 for wrongful imprisonment, supported by Jennifer.
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Notes by a student (Regina High?), 2003.
As a 22 year old college student she was raped. she states that she wanted the person t o pay for what all she has done. she has a lot of emotion that will follow her through out her life until she learns to deal with the pain that the m an caused her, about 3 am in the morning she woke up she asked who was there and the guy jumped on her and they pinned her down and had a knife to her throat, she was trying to fight to see the face of the man that had her held down. At first she thought that the man was a thief and that he wanted to steak from her, she realized then that the man was taking her clothes off and being to give her oral sex. she was trying to turn on the lights and the man would not allow that to happen. she happened to see just a little bit by the blue glow that was coming from the stereo. she told him that she would feel more comfortable if the man would put the knife outside her apartment and he fell for ir. He didn't go outside he just left the knife outside. She told him that she was thirsty and that she went into the kitchen, She made a lot of noise and then ran outside and went ot he neighboring house and knocked on the door to see if they would let her in.
the house was owned by a teacher that taught at the college that she went to. They let her in while she was screaming that it was a black man. the policeman came and she didn't realize that they had to do so much work to be able to have evidence against a rapist. Later on another women was raped possibly by the same man. They asked her to come into the station to give a statement. She tried so hard to be able to identify her assailant. She was trying to remember exactly what she looked like and the police had a lot of faith in what she saw. The police would have to go on what Jennifer saw. The decided to take the composite sketch and make it know that they know about the man.
The next day the policeman got his first break by a man that lives in the same neighbor that the women live in. The man that they believe did it he had a record of raping a girl when he was younger and was on parole for breaking an entering. the man wa Ronald Cotton. He had a tendency to touch white girls. Jennifer was brought in and identified the man. With her identification the went out to find Ronald Cotton. The policeman went to the house of Ronald Cotton and arrested him. they then realized that the man that they went to was not Ronald Cotton but his brother. SO they went to the families house and found evidence of the rape. the found evidence that wa in Jennifer's house and found the same foam in the house in Ronald's room. They also found a red flashlight which is what the other women said the he had.
That afternoon Ronald Cotton voluntary went into the police station to straighten things out. He said that he was out with friends that night. The police and the investigators could not find anyone to back up his alibi. The victims one at a time was brought into the viewing room so that they could see whether or not the man that raped her was there. She wanted to hear the voices of numbers 4 and 5 again and then identified num. 5 as the man that raped her. In january 195 the Cotton case came to trial. the second victim could not identify Cotton so they thought that that could hurt their case. They believed that with Jennifer's testimony alone that they would prevail. She would tell the jurors upfront and would explain everything that happened. Everyone believed that Jennifer was very brave in being able to state up front what he did to her. It was noticeable that jennifer was hurt and brutalized . When something like this goes on the jurors are going to go with the side of the victim because they would not believe that they have any reason o lie about it.
Cotton said that he had gotten his dates mixed up and that he wasn't out with his friends that night he was at his momma's house instead. The policeman believe that the he was originally with his girlfriend and then passed ot on his parents house. All of his family said the same thing that he was innocent and they they all said he was asleep in the conch. The say that because there is no proof that he didn't not do number 2 victim that he didn't not do number 1 victim. The decided to go with just Jennifer's testimony. Jennifer says that she made a direct positive identification as to who the man was that raped him.
A year into his sentence Cotton has written that he had said that he had found the man that raped the two women. He sent a picture of the man named Bobby Poole in 1985 and sent it to the policeman to see if he could do something out it. Cotton wrote that since he was innocent that truth would come out. After 2 years in prison they decided that they would give Cotton another trial saying that they should have known about the second victims.
Both of the women testified that Ronald Cotton was the man that raped her. Bobby Poole stated that he didn't make that statement to anyone that he was the one that raped the women. The judge said that they may not present Bobby's Poole testimony and no evidence saying that Bobby Poole is the one that raped the women. They asked is Ronald Cotton wanted to say something in he trial and he stated that he wanted to sing a song that he had composed. Jennifer was full of anger and yet relived if he was saved again by the Lord. Ronald Cotton was convicted of both rapes and was given two life sentences in prison. His case remand unchanged for 8 years. then it came under a man by accident.
What struck the lawyers was that there was no evidence except the eye witness of Jennifer and the other girl. He wanted to ask for a DNA testing so that maybe they could get him a new trial. They discussed this with Ronald and he wanted to have it done. The evidence was still in the police station even though it is normally destroyed after the case is open. The policeman stated that he kept it because he figured that this was going to be an ongoing case and might see the supreme court. Since the last trial in 1987 Jennifer had had almost no contact with the police. The called her in the summer of 1987 that told her that they wanted to talk to her about DNA testing. They told her of the pros and cons and that she would have to relive that trial over again. The test showed that he did not commit the rape. Jennifer decided to turn on he news and she felt guilt thinking he may have made a mistake and that she took away 11 years of this man life. She left really bad for making the mistake. If Ronald Cotton didn't do it then who did. The truth came out that Bobby Poole was the one that raped the women.
After that A lot of convicted rapist were released on the grounds that DNA stated that they didn't do the crimes. Janet Reno stated that many of these new cases that were given were because the men in prison would write all kinds of letters wanting them to look at their cases. No one knows how many cases there are that people were convicted and yet they are innocent. DNA testing is showing s that this can be a problem as well as a solution. The policeman in Jennifer's rape are still tying to understand what went wrong and where they went wrong. What this case stated is that no matter how well they did their job they put away an innocent man.
Jennifer now states that she wouldn't have done anything different but yet she is not sure of what she saw, The say that process of talking to a victim that is an eye witness is a lot more likely to make a mistake especially if the persecutor is of a different race. They have been over and over the files and have tried to find out what they could have done different to keep the innocent man ot instead of putting him away like they did. They decided to go back and look at what Jennifer said she saw and who she chose. They said she could have been persuaded because the police stated something and so she felt pressured nd stuck with what she said whether it was wrong or not. After his was realized that only place that would give him a job was the place that tested his DNA. She is sorry for ever jennifer stated that if she were ever to talk to Ronald Cotton that she would do it in a private time and that she doesn't want any hurt feeling that if she made a mistake she is sorry but that is what she had to go on.
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-Roy Kreiner was convicted of rape upon an eye witness testimony before DNA was used as evidence.
-Once DNA was tested it was a the semen was a negative match but the state will not give him another trial.
-Prosecutor said that if DNA would have been available at the time of the trial it would have made a difference.
-Without a pardon from the government, he may remain in prison for the rest of his life even though they could have tried him in federal court.
-Case law and legal systems are based on precedent.
-restricted habeas corpus
-With DNA, many people would be released from prison and even death row which is to controversial.
[Prof. Barry Scheck of Columbia University Law school, leading Innocence Project.]
-After Oklahoma City Bombing, an Anti-Terrorism Act was set that said that you only have 1 year in all cases and only 6 months in capital cases to ask for an appeal.
-Commonwealth v. O'Dell (VA)
A waitress was brutally raped and murdered and Joseph O'Dell was executed for the crime even though it was said that a DNA test could prove his innocence. Rape tests kits
were performed in the case which consisted of vaginal fluid swabbed from the victim that consisted of the killers DNA. The prosecutor in this case said that the test would not be
reliable because the samples could possibly be contaminated after all these years. Many said after this case that the system would not be able to ever function correctly if it could
not admit to making mistakes.
-Case of Clyde Charles (LA)
Clyde, an African American, was out drinking one night and him and his brother left a bar and went separate ways. While walking down the street, charles spotted a cop and asked him for a ride.
The cop threw him in the cop car and rushed him to a local hospital where a women who had been raped was brought in a couple of hours earlier. The officer asked the woman
(who was white) if this was the man that had raped her and she said yes. Charles went to trial and was convicted and sentenced to life in prison without parole by an all white jury.
A request was sent off to the Supreme Court for a DNA test to be done and it was denied. Charles family was even willing to pay for the trial and the DNA had been
preserved from the rape kit. Louisiana officials finally agreed to give him his test only after him giving up his right not to sue them for denying him the test before.
We don't know what happened next because Dr. Lewis taped over the rest of the video :)
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Peter Boyer, Waco: The Inside Story (PBS)
by Drew Goldman, 2003.
The longest shoot out in history. They only succeed in the endeavor if they have an overwhelming force. They had nothing of the sort. David Koresh preached over 911 during the battle. Davidians had an arsenal. Cease fire to remove wounded or dead. They were beaten and they were retreating. Could not fire through wall under rules of engagement. fifty one day stand off at Waco. Run by Jeff Jamarr was the leader of the Waco FBi office. Intimidating, and controlling. Had ten thousand men at his disposal. HRT Hostage Rescue Team are the ones sent i to confront the Davidians. They were second to the negotiators stationed a mile away. 46 children in the compound. Negotiators try to get the children out, two children every two minutes of air time. Once they came out they were allowed to call back in a let their parents know they were all right. 18 children were released over the next hour. David Koresh thinks he is the Messiah. Nationwide audience for everyone to come out. They were looking for a guarantee from Koresh if he got the broadcast. Steve Schnider is Koresh head assistant. Agreed to let the kids out on a bus. Schnider stalls for a long as possible. David went back on his word and is not sending the rest of the kids out. Jamar is trying to show force but this has a bad effect. They are hoping to force them into being scared and this would make them want to come out. They continue to become tighter and tighter until the situation cannot be controlled and they are forced to fight and raid the compound. The HRT were becoming frustrated. They were growing further apart while the Davidians were growing closer together. David talks about killing the FBI agents. We get this info because of listening agents given to them through the milk cartons. There was a ten day limit, they turned the electricity off, then 3 days later they turn the power back on. David made a tape about the kind of people inside the compound. David has a rat tail. They could move in on the adults but this posed a problem to the children as a direct threat. William Sessions under siege of moral impropriety & corruption. Fifth choice of attorney general Janet Reno is put in charge. Janet Reno takes on the case of the problem of Waco. Waco remained in a stand off position. Jamar calls on the local sheriff to work on negotiating something out. David says he is trying to just keep is private property his property and these people were trespassing. The sheriff and another negotiator talk face to face with Davidians. They leave with a new sense of trust. Koresh did not allow anymore face to face problems. The HRT blast some weird music at the compound and Koresh sends some different music back the opposite way. March 21 some more davidians come out approximately 7 come out. They destroyed all the cars to say that they have control. March 21 was the last people to come out. David had everybody convinced that he was the messiah and that they were killing their soul if they were leaving the compound. The know that david is not crazy. The negotiators recommend the use of tear gas. They use gas and tanks. The compound held 21 children still and the attorney general turned the plan down. Children were being beaten is what Reno was being told. This made her change her mind. It was believed that Koresh was not coming out. They had no plan to battle fire and fire broke out. They had gas mask and the davidians starting firing enormous amounts of fire. They put all the gass in at once over two hours and this was a problem. It was suppose to be over 48 hours. They tried to put the gas in a section of the compound where there was a underground bunker. The davidians set fire to the compound in different areas cause they could not go any further back. The compound continued t burn and nobody came out, they children did not come and nobody did. One person came out while the fire burning. The hope was they the Davidians had made it to the bus and they had made it. They did not make it to the bus and everyone left in was burned alive. David died of a suicide and so did Schnider. Some commi ...
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ABC News, Crime & Justice series, "When Children Accuse, Who to Believe?" on Child Abuse Case in Bakersfield, CA.
Fever for other accusations, cases:
Two adults deny they were abused as children, claim were interrogated for five days with leading questions, repetition, and yielded to hope of being released to see parents again Prosecutor denies social workers could have abused children in interrogations medical experts disagreed on any evidence of abuse, other than childrens accusations Custody issue: ex-wife may have stimulated accusations against father of boys Man who supplied character witness for father is himself then accused Judge excluded much evidence Just as trial was ending, major case broke in McMartin case, 1984, with similar pattern of total reliance on child testimony. Jury convicted on all counts, 240 years in prison for both parents, 70 felony counts Mother beaten up in jail on account of charges Kniffen parents sent to prison for a decade without their children, boys separated into foster homes one boy sent to mental hospital for anger management
Doubts in Kniffen case:
McMartin defendants also all convicted, and many other cases followed across country Even prosecutor Andrew Gindes concerned about the later cases, allegations of satanic rituals and other fantastic claims Even McKuen children made more accusations, and allegations developed against social workers and deputies CA Appeal court overturned all the convictions, characterized prosecution as unprofessional MN case charges dropped. CA: McMartin jury found testimony unreliable Kelly Michaels, child care worker in NJ, released
Kniffen case: only two interview tapes were found, indicating leading questions by prosecutors -- and tapes have gaps Defense produces research of difficulty of interview techniques Court of Appeals reviews Kniffen case, July 1996, all convictions overturned after 12 years. No retrial.
Andrew Gindes, former prosecutor, works part time as criminal defender
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