Transcript of RM204: Every Wrong Is Not A Constitutional Violation

Listen to RM204: Every Wrong Is Not A Constitutional Violation
Andy 00:00
This episode of registry matters is brought to you by our patrons. Thank you for your continued loyalty and support.

Andy 00:08
Recording live from FYP studios West and an igloo in the northeast, transmitted across the internet. This is episode 204 of registry matters. Happy Saturday night, Larry, is it that it’s freezing cold where I am. I hope it’s called where you are just so you can empathize.

Larry 00:24
It is not cold here that was 60 degrees today.

Andy 00:28
Okay, it’s 60 below here. That’s all I’m saying. Is it 60? Below?

Larry 00:32
Well, that’s good for the Michigan consolidated gas company or whichever gas company provides your service and that equal urine.

Andy 00:41
That is true. Tell me sir, do you have anything snarky to talk about? Before we go into it? Are we gonna dive right into it?

Larry 00:48
We’re gonna dive right into it. We have a lot of stuff on this agenda. We’ve got to do it in 26 minutes.

Andy 00:53
26 study. Now go.

Larry 00:56
Okay, let’s wrap it up.

Andy 00:58
Yep, we’re done. So what do we got going on tonight, sir?

Larry 01:05
We have two amazing cases, we’re going to be talking about one from Iowa and one from Connecticut. We’ve been putting off for two or three episodes. We have some questions that have been submitted to us. And we’ll do the best we can with those questions. But I’m not completely clear on the last one.

Andy 01:23
Very well. Yeah. I mean, when someone just posted on the website, if they don’t give us a lot of detail like about I mean, they did give us the recent case anyway, we’ll get to it. But if you don’t give us more information about it, we got to do what we got to do. But starting off with things, this first question came over discord this pi two weeks or three weeks ago, there’s a guy in there that has moved to Georgia. And it got framed that the the website mixes what’s required by statute with that what not required by statute, how does one comply with what’s in the statute while refusing to comply with what’s not in statute? So if the sheriff asks for something, Larry, how do they how do you like? politely say no, can they mix the two and a notice, like the above? So the person just called the sheriff’s department for Paulding County, Georgia, which I think that’s over by Six Flags there? It’s over kind of on i 22, the west side?

Larry 02:18
I don’t believe so. I believe it’s actually on the north side of Atlanta. But go ahead.

Andy 02:21
Oh, well shows you what I know. Alright, here’s the breakdown on what I need something showing my original charges, and then a $25 Cash fee, and internet identifiers. I’m confused. Like, what is he supposed to bring almost like a utility bill that says where he lives. So he has to bring something showing as original charges? Like, can’t they just look that up?

Larry 02:44
Well, he’s gonna He’s both at Georgia. So he has a non Georgia conviction. So they don’t have that red shirt.

Andy 02:52
I mean, I guess he just brings the court docket from where he comes from. He’s coming from Florida.

Larry 03:00
Well, I’ve not heard of them asking for that until very recently, my state now that we have an out of state translation process for work here. But but in Georgia, you’re going to have to register, they have the catch all language that we don’t have. So I don’t know what that would do in terms of unless there is a provision to not have to register in Georgia. And I would seriously doubt the Paulding County sheriff is trying to find a way that the person doesn’t have to register. That would be very surprising to me when you

Andy 03:32
totally i. So he’s bringing some sort of court document from his original so he can they can figure out how to translate it.

Larry 03:39
Well, but I didn’t know the sheriffs in Georgia do that. I didn’t think that was one of the responsibilities. If you come to Georgia, I’m just thinking pretty much there’s a catch all that you have to register and Georgia if you have to register anywhere.

Andy 03:52
So that that’d be for something of because there’s the three or four different windows that he might apply to, like 403. I think

Larry 04:00
that’s a good point. So you don’t even need me here. I keep telling you that he would have more progressive restrictions, depending on how recent his event occurred. So that would be one of the reasons they would want that those documents to look at what he did when he did it.

Andy 04:17
And then what about the $25 cash fee? I mean, he was supposed to bring in there and 25

Larry 04:24
I’m not I’m not sure about that. $25 Cash fee. But I think internet identifiers. I’m not registered in Georgia. But don’t ask for those in Georgia. Don’t ask your user. They don’t

Andy 04:38
listen, when you and I first met in a hotel, not a hotel in a hotel meeting room. There was an individual there named Terry and I and I lose drawing a blank on his last name. It is my understanding that that individual fought Georgia and won and that’s what got rid of the internet identifiers. I can’t verify this. But that is what I believe to be true. And so they have taken that away, they have never asked me for a single online account of any sort?

Larry 05:08
Well, his question is, how do you politely tell them and that is very tricky and very cautious because you don’t want to set yourself up for them targeting you to try to catch you in non compliance with something petty. But on the other hand, you don’t want to give them information that could come back to haunt you, that’s not required by law. It’s almost a catch 22, isn’t.

Andy 05:35
It totally it is. I mean, you’re very much damned, if you don’t, if you go in there and be hostile to them, then I believe like your terms would be, they’re going to enhance your super, he’s not on supervision, mind you, but they’re going to enhance their monitoring, so to speak. But if any of you just comply, maybe you’re setting yourself up to be giving them more than what is required.

Larry 05:55
What which may come back to haunt you later, depending on what you give them. That’s our issue. With Cobb County, they’re asking for work schedules. And your schedule is not required by Georgia statute. Cobb County is a suburban Atlanta County for our global audience that doesn’t, it doesn’t relate to that immediately. And if you give them that work schedule, then it begs them to go out and check and see if you’re there. And then if you’re not there, they say you lied to them. And then they intimidate you and say, Well, we’re gonna, we’re gonna have to violate you file registry violation for not giving us truthful information. So I’m thinking people probably should not give those work schedules unless they’re static and don’t change. But people are giving them because the sheriff with a gun is telling them, I want it.

Andy 06:45
Say this is not very different from the homeless individual that we spoke about three or four episodes ago, who has to text in where he’s staying that night, because he’s homeless, when he gets home from work or whatever. Like, that’s not required either.

Larry 07:00
That is absolutely not required. And we’re actually we being nagarsol, we’re actually looking into that it’s going to take all these trains take some time to run. And people want instantaneous problem solving. And we our first strategy is to try to figure out if there’s more than one person in Barrow County that’s having to do that, because we would like not to out a particular individual, because that’s who they’re going to turn their retaliatory attention to. But it may be that there’s only one. So I’ve encouraged that person not to pretend they’re homeless, if they’re not homeless, because they will definitely prosecute you for that. declaring yourself to be homeless and not being homeless. That’s, that’s not an accurate representation of of your status, is it?

Andy 07:49
No, could you give me something more of a legal definition of homeless is this like me if you’re couchsurfing? That is that is that homeless are not homeless?

Larry 07:58
Well, I don’t, I don’t think homeless to me, if you have a home, if you have a structure, I don’t think you’re homeless. But that structure, if you’re couchsurfing may change continuously, you may be allowed five nights, well, then you’ve got to constantly keep the department, the sheriff, or the law enforcement in Georgia informed. They take the position that if you don’t have a fixed residence, that you’re going to be at permanently you have to report in every week. My personal position is that if you have a temporary place that lasts more than a week, you shouldn’t have to report every week because you’re in a fixed location. We don’t know the answer that question because it hasn’t been litigated. In a case. If a person says Well, I don’t, I don’t own that place. I don’t rent it. I don’t have a written agreement. But my friend, Jeff is letting me stay there. And I don’t know how long he’s gonna let me stay, he may let me stay for three months. Well, to me if you’re fixed at that time, you shouldn’t have to go in and more frequently than anyone else. That’s at a fixed location, because all your locations can be unstable, depending on if your wife kicks job puts the suitcase outside, your girlfriend does all these things, if the landlord finds out tells you to vacate, which they’re prone to do, there’s all these kinds of things that can change your status. But if you are at a fixed location, that’s my personal opinion. But there’s so many things we don’t know the answer to, because no one has been faced with that and been prosecuted. And we don’t have any appellate guidance from the Georgia Supreme Court or Georgia corps of appeals in terms of what is homeless. They try to they try to define it in the statute, but sometimes they don’t do a very good job.

Andy 09:39
I would like to get you on the record. Can you walk in there? Good. I’m on camera right now and you you hold up your two middle fingers need go FYP I’m not giving you the original churches, the cash money or the internet identifiers and walk out and mic drop on the way up.

Larry 09:54
I certainly would not encourage that approach.

Andy 09:59
All right. How do you how do you? How do you stand your ground without being a jerk? And cover your bases at the same time? Like, is there like secret legal language that you can say to the sheriff of No?

Larry 10:15
Well, I would do my best to be polite as all possible. But say, I’m not familiar with that section of the statute. Can you show me what it is? I’m required to do? So that I’m absolutely clear. And I’m, I’m intending to fully comply. And of course, if it’s not there, they won’t be able to show it to you. But you set it politely rather than giving them the middle finger. And, you know, it would even be great if you held a copy of the statute nearby. And I’ve studied this thing, and I’m not sure what the board that said, and I certainly want to comply, but can you point that out to me? And

Andy 10:48
I can imagine I’m saying something that I’m sorry, you can’t find a copy? I brought one with

Larry 10:53
me. That’s precisely what I would do.

Andy 10:57
I pictured that doesn’t go over well, either.

Larry 11:00
Well, it would not go over well, and you’ve made the point that he’s not on supervision. But they treat it kind of like supervision, even though it’s shot. They do those checks on you. And they’re looking for an I gotcha moment. So I remember I just had this conversation about two weeks ago with Paul Dubin, the attorney from Chapel Hill. And I told him, I said, Well, you know, you can because he was saying, Just tell them, tell them the take and stuff. And I said, You can’t do that. I said, here’s what happened if you didn’t do that, and I started naming the things he said there was, those things are illegal. I said, Paul, your defense attorney, for for all people used to understand that law enforcement does a lot of illegal things, just because something is illegal doesn’t stop them from doing it, I said, what they would do, if you declare yourself homeless, and don’t leave your homeless, let me tell you what they will do. They will go infinite, find out who owns the property, if it’s public or private, they will contact the entity or the individual. And they will ask them to get get to give them an order to remove you, they’ll say that you’re trespassing. And then we’ll talk to property owner to agree with them. And then we’ll come back and say, you’ve now been given an a no trespassing order. That’s one thing they will do. If you have a vehicle, they will surreptitiously put a tracking device on your vehicle. Now, I’m not saying that that county will do it. I don’t know the reputation of Barrow County what they will do. But I can tell you that law enforcement does that all the time. And pulses that say like when I saw, of course, it’s a really good court ruled

Andy 12:32
that 112 1010 or something that they couldn’t do it,

Larry 12:36
but they don’t use it as they don’t use it in the complaint, what they will do is they will track you to your girlfriend’s house that you’re going to every night claiming to be homeless, and they will set up surveillance at the neighbor’s house, they’ll ask the neighbor, you know, we’d like to, we’d like to set a camera up on your property, and the neighbor could give permission for that. And then they will track you with that vehicle coming to that location every night for a requisite number of nights that you should have declared that residents. And then they will go down, and they’ll get a warrant. And they will say on information and belief that they found that you weren’t staying at the place that you identify that you were spending the night at when you’re homeless. That’s what they will do. They will never disclose exactly where they found you out. They will just say that they all information they they have that you’re not there at that location. And they’ll say that they’ve done. They’ve done visual surveillance, and you’re not there. They will put say that in the affidavit for the restaurant, they won’t say and we’d surreptitiously put a tracking device on their car. Why would they do that?

Andy 13:39
I gotcha. I gotcha. I think we should probably move on from this one. Is there anything else

Larry 13:46
I empathize with with him? I don’t know that counties reputation all that? Well. Generally, those suburban counties tend to be more conservative, they tend to be more affluent, and they tend to have more resources. So therefore, if you irritate them, they just may well turn those resources on you.

Andy 14:10
Well, this one comes in from the YouTubes and says, If from freedom is right asks, Why in the US, does the sentence matter from a plea to a trial judgment is basically poking at you learn? It should not matter. As citizens, we are guaranteed a trial. So why does the punishment increase if we express that Right? because it saves time or cost taxpayers more money? Bullshit. In other words, the US sucks. Is that what you said Larry?

Larry 14:41
I don’t recall ever saying us luck. Matter of fact, I think I have said over and over what a great country we have and how proud I am to try to be a part of making it even better. But in terms of the trial one reason why you get a tougher sentence is because with a plea you can contain the damage by limiting the judges discretion. We have a case in Brunswick, Georgia in Collin County right now, where the judges discretion is very limited because by statute, they must impose at least on two of those guys, a life sentence, the only discretion the judge has as life without parole or life with parole. When you do a plea agreement, there can be charges that are dropped as a part of the negotiations, which would enlarge the exposure of the judge. Because if you take out three counts, you’ve just extinguish some discretion of the judge. Would you agree with me on that? Yeah, I think so. Okay, so you’ve you’ve you’ve limited the exposure, depending on how far a plea agreement goes, you may have a sentencing agreement that even would contain the judges discretion further, so the judge may have 15 years of discretion, if he worked, backs you out of the charges that you pled, but the sentencing agreement may say that as a part of the plea agreement, that can be no more than five years of incarceration imposed. So that’s one of the reasons why why you get you have not restricted the judicial discretion. When you go to trial. It’s open season for sentencing. So does that make sense to you, you play agree, but usually limits the discretion of the court. Without a plea agreement, the court has unlimited discretion up to the maximum of each count.

Andy 16:25
Does seem though, Larry, that there is almost like a tax or a penalty for taking a trial to

Larry 16:32
we’re going to, we’re going to get to that point. But okay, this is the first part of the answer is that’s the reason why you get more time because you have no limitations on the court, except the maximum penalties prescribed by law. The other reason these are human factors, and folks try to remember I don’t make the rules for life. I’m just simply the passer that passes these rules on to you. Judges are human. And so we’re prosecutors. So we’re witnesses and victims. And there’s a common belief that if you force the court to go to trial, when there’s overwhelming evidence against you, and you tie up the court’s time, that somebody is going to have to pay a little something for that. Now, most judges will deny that they’ll say they don’t do they won’t call records that I was extra harsh because the person went to trial. But that’s a reality of the situation. Now, if you want to pretend that’s not a reality, that’s okay. Because I’m just the messenger here. But of the all the trials I’ve seen very seldom, occasionally, but more likely than not, the sentence would have been better to have been resolved and imposed by a plea agreement. There are exceptions, our former Secretary of the Department of Taxation and revenue for the whole state, just went to trial on embezzlement, not from the state, but from our private client. She was convicted at that trial. And she was sentenced to probation, which was a very tough decision for the judge to make having to sit through days of horrible testimony. And all the public vengeance was about this, this person needs to go to prison. But those are rare situations, more likely than not, you’re going to get a harsher sentence if you go to trial, because the theory is you have not recognized the error of your way. You’re not feeling remorseful. And perhaps a harsher sentence will give you the opportunity to do some introspection and reflection and maybe perhaps you’ll feel remorseful. That’s what the attitudes are. Those are not my attitudes. Those are what developed over 240 years of our existence.

Andy 18:41
Do you think that that’s an accurate perception?

Larry 18:47
I think in some cases, if a person goes to trial, if they’re innocent, of course, they’re in denial. But if the evidence is overwhelming, that’s why we have the Alford plea. Because sometimes, the fact is, the evidence will convict you even though you didn’t do it. So I don’t make those rules either. Okay.

Andy 19:12
Yeah, I can’t, I can see I hadn’t really considered your part about hadn’t preemptively I guess you’re signaling to the court that you are taking some level of responsibility for your actions by taking a play.

Larry 19:25
You absolutely are. And then the federal system is written into the sentencing guidelines, which passed in the Reagan administration was one of their cherished achievements. There is actually that in the sentencing guidelines, there are enhancements for going to trial. It’s written in the statute on the federal side. It’s not just a practice it has it is written because you are not accepting responsibility.

Andy 19:52
Interesting. All right. Then I think we are ready to move over to the third question. This came in on the website Someone posted a comment on registry matters SEO. Is anyone considering illegal ex post facto applications? recent case of John Doe vs. can’t remove plaintiffs from registry in Tennessee through due process and ex post facto because Feds ruled registry punitive without review. Now, I just put this in there this afternoon, haven’t had a whole lot of time to try and go track down any further details. Do you have an off the cuff kind of response to what this is?

Larry 20:30
I’m not sure of the John Doe versus can’t case but Tennessee is within the Sixth Circuit. And all the stuff that’s happening, Tennessee is flowing from the DOS versus Snyder decisions out of the Sixth Circuit out of Michigan. So I’m suspecting that’s what he’s talking about. But that’s exactly what they’re alleging is that these registries not unconstitutional, and please save your hate mail. It depends on what you require of the registrant the mere act of registering is not unconstitutional. We register voters we register cool schoolchildren, we register young men for the draft. And they don’t have an option because I know people are gonna say, Well, Harry, you just don’t take them to their stand. People voluntarily registered to vote, but no, not for the draft. You don’t you’re required to do it as a federal statute carries a prison, maximum prison sentence of five years if you don’t do it, and you lose your financial aid for college and a number of other benefits, which I don’t think I can recite all. But it’s a serious better not to register for the draft. But no one has ever argued that the draft registration process is punitive. Because it isn’t. And you could have the same PFR registry that would not be punitive. So merely registering people to stop was period. In the case of Michigan, they just couldn’t stop adding on the case of Tennessee, I think we’ve gone through it on an episode, they just couldn’t stop adding on and adding on to that’s the case around the country. But you could have a very benign registry, that would be very constitutional. But the Xbox facto is where most of these are being born. Because they’re imposing probationary type conditions, and disabilities and restraints. They’re way beyond what can be considered a registry.

Andy 22:23
If we all were to have the registry that existed in Alaska in whatever it was 2003 2001 I forget the date, Larry.

Larry 22:30
Yes. 2010.

Andy 22:32
I struggle to think that other than people bitching about they’re going to visit the popo, whatever it is over here. I don’t know that anybody would really complain that much. Yes, some people would complain, yes, you shouldn’t have to do it, blah, blah, blah. But you wouldn’t have living restrictions, you wouldn’t have work restrictions. At the time, there wasn’t much internet. So at least that wasn’t much of a thing. But now it is. So that wouldn’t be much of an issue. You wouldn’t have people living under bridges. If that were the registry, you wouldn’t have people living under bridges and tent cities that you do in

Larry 23:00
Florida. Well, in fact, and Alaska 2000. At that era, you did not have to go to the popo you mailed in a form. Okay, so that was even more gooder? Well, that’s how they found it constitutional. Because there was very little require.

Andy 23:15
And you don’t have to go get booked and fingerprinted and frist and put in lockup and in a holding cell for a period of time. You just mail in a form like, wow, that doesn’t sound so bad.

Larry 23:27
Well, there are only a few registries left like that anymore. And the authorities, the lawmakers will continue to pile on. And there will continue to be challenges. But folks, the magic silver bullet you’re looking for isn’t coming, because the mere act of registering is not unconstitutional. So therefore, you can peel the registry back once there’s been an adverse court ruling. And it is constitutional. Only the narrow circumstances like in Maryland, or they have that constitutional provision in the state constitution that says that there cannot be any disadvantages imposed. Maryland would have a real hard time because any type of registry would be a disadvantage, ex post facto.

Andy 24:13
But any, any idea how that ended up in their constitution versus the other 73 states? However many that is.

Larry 24:21
Thank you. 61. but who’s counting? Okay, right. But anyway, they I don’t know how that ended in their constitution, but it has a great provision that has saved them because they would have gone back and tried after those cases that went adverse to them, they would have gone back and tried to make a more benign registry, which is what the other states typically do. They don’t generally throw up their hands and say, well, we give up I mean, we we covered an article about two weeks ago or last week from Tennessee. I think it’s two episodes back where we read verbatim from the quotes from the legislators saying that they weren’t gonna get rid of the registry.

Andy 25:02
There, we got to figure out how to pigeonhole it in with what the Ninth Circuit seventh sent which circuit? Layer six circuit? Six, six. Okay. Yes, yes, they were, they were going to try to figure out how to make it fit within those guidelines. And they were going to roll it back to the point that they were not forced to roll it back further.

Larry 25:17
That is correct. And that’s what they’re typically going to do. Folks, we will stop having registries when the public stops supporting them. That’s, that’s really the end of it. The silver bullet that you’re looking for in legal cases, is not coming. Now we might get a silver bullet in terms of the internet dissemination, because that is something that really damages the individual, particularly when they physical address, the vigilantism and the disenfranchised, disenfranchisement, from from employment and from Reza, I mean that that’s a horrible thing that you couldn’t really have thoroughly evaluated and oh three, when they did the Connecticut Department of Public Safety versus doe. And the Connecticut court had said it was unconstitutional. But of course, the Ag of Connecticut took it to the US Supreme Court, US supreme court said no, it’s merely just a dissemination of already existing information. Let’s say all that has changed since since that case, because it’s no longer just a dissemination of existing information about the conviction. Now, it’s all the stuff that was not a part of the conviction that’s being disseminated. So it’s ripe for brand new litigation, because that case law is can be distinguished from what exists today. Gotcha.

Andy 26:36
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Andy 27:24
Okay, let’s move over here. Larry, I put this in there. And I asked you the question straight up, like, what’s the grand jury indictment, Georgia case? Like we don’t, you didn’t give me any information as to what this is about. So what is this about?

Larry 27:36
I just said I’m pretty sure we could drop it because I thought that Georgia case might get out of the way it might have been worthy of discussing the conviction and in Greene County, and Brunswick with the with the Father, the Son and the neighbor. But that was very complicated indictment, and I didn’t really completely understand it myself. They had like nine counts on each one of them and they got convicted of almost all counts.

Andy 28:01
Okay, so may might be something that we revisit at a later date. could very well be cool. All right. Well, then we are going to come over here to the e o work case that you are very excited about for some strange reason. And I did notice some chatter about it on the narwhal affiliate list. It was just decided by the Iowa Supreme Court this week. The case number is two zero dash 0375 and the name is Travis bomb. gars Kyle Krause, Anthony Gomez, James Hall, Raymond, LaBelle, Shane millet and Kelly sand versus the state of Iowa. Did all these people Larry did they all have some big power? They met at the local Starbucks, and they filed a lawsuit against the state of Iowa.

Larry 28:45
No, that’s not exactly how it happened. There were several inmates who had filed post conviction petition for post conviction relief. And their cases were ultimately consolidated for purposes of appeal. And this is not all that uncommon, and it’s done for judicial economy.

Andy 29:04
Okay, well, here even though I’m in an igloo, it’s I did read all 45 pages later, which I’m sure surprises you. I note that I noted that the essence of the case is that several male inmates serving time for sex related offenses are challenging what they believe to be a catch 22 in Iowa’s prison system. But before we get to that, I noticed the state challenged almost everything. They challenged the venue, they asserted that the case was not right for decision. And the most appalling thing is that they challenged the appointment of counsel to represent the men, they prevailed on that particular challenge. So the men were left without representation. I swear I swear I thought that you were entitled to have some sort of court appointed attorney represent you. But why did they fight so hard?

Larry 29:49
But you are entitled to representation where you’re facing loss of your liberty, but they’re already convicted. They’re, they’re trying to shorten their loss of liberty. But why does the state fight so hard? It’s really easy. easy and simple to understand. If you can prevent a trial, you cannot lose. So therefore, the state will use every tactic. Sometimes they’ll border in the gray area, but they’ll use every tactic that they can conceive of to prevent the issue from being determined on the merits, as alleged in the complaint. So they put forth those challenges about venue. I mean, the whole way, by the way, the wrong jurisdiction here. I mean, this should have been filed, where they were convicted, because that’s normally the way I think, post conviction by fluid Iowa. And then they asserted it was not right, because they said, Gee, these men have not proven that that they that they’re being held merely because they haven’t completed treatment. They have not shown that they’re otherwise eligible. So therefore, it’s not right. They have deaf become eligible for release in all other aspects before they can say that this is why they are holding up. And of course, they wouldn’t want him to have counsel, because a counsel is going to be better trained in presenting the arguments than a pro se litigants going to be so all it makes sense. You’re trying to delay. It works the same way. If you’re charged with a crime, I have all these people, they just say, Larry, I can’t take this anymore. This has been pending for a year and a half. And I said, Well, you’re still free, right? Well, yeah. But but it’s just stressing me out. I said, but you’re still free, right? And if you if they never can get this case to court, you will never be convicted. But I just can’t take it anymore. I said, Well, what seems like

Andy 31:34
the time, the longer the time goes on, the better off it is that would that that would indicate to me that would send you a signal that they have less than stellar evidence against you, or they’re waiting for something to develop?

Larry 31:46
Well, it could be that you’re you’ve delayed it, it could be a combination of delays, but the delay often works to your benefit. Because if you if you have a case that’s going to go to trial, or you’re contemplate going to trial, things can happen that makes those witnesses unavailable. I mean, people,

Andy 32:06
people, this sounds like a mafia movie right now, man,

Larry 32:09
people do move. I mean, this is a vast country, and people do relocate from state to state, I mean, it surprises you, but they do. People are in points of their life, they might be in their armed forces, and they may be deployed. There’s just all these kind of things that are critical witnesses sent to a combat zone. And they have to solve the case for the terms of deployment, that witness may come back and the other one may be in college in Honolulu by them. And they can’t put on their case. So that enhances your negotiating power because the time is running. And the evidence is getting older and older, that people may be getting less and less anxious about having you go to prison. Can we all good things. It can only get better for you the longer case runs, but two people just can’t stand it and they just say I just can’t. So what we can call it the game. So you want to go ahead, change your play, we can do that. So

Andy 33:06
well, let’s get to let’s get to the underlying claims made by the men to be considered meaningfully for parole. These inmates needed to have completed their PFR treatment program or s OTP. But because of limits on resources, this treatment has tended to be available only as the inmate nears his tentative discharge date. The inmates asserted among other things, that this circumstance violates their constitutional right to due process. I don’t understand. To me this case seems eerily similar to the case from Illinois, which was won by Adele Nicholas, it should have been a slam dunk, Larry. Yes.

Larry 33:41
No, they should. It shouldn’t have been there’s a significant difference and I would Illinois in the process. The the challenge in Illinois was successful because the state has a period of mandatory supervised release, which commences only after you conclude a person’s incarceration. And the Illinois prisoner review board sets conditions for that period of MSR mandatory supervised release, which includes having approved housing, Iowa has a system of meritorious parole, which permits an early release from one’s period of incarceration upon successful completion of the required programming. And therein lies the problem. The required programming of treatment cannot be completed due to lack of, of slots, which is a funding issue. The challengers were not successful, I carry their burden of proof that there was deliberate effort to keep them in prison. They just did. They didn’t have evidence to show that

Andy 34:40
it’s just that simple. They did not carry their burden of proof. So okay, to deny them parole, you know that the state is deliberately Larry, you must know that they’re deliberately keeping them in prison by not having enough treatment resources available. Why can you not see this?

Larry 34:58
Well, in courts We are, we require proof. I mean, that’s the that’s the way our system works. It is a real tragedy for those who are unable to make parole due to lack of housing, or due to lack of treatment. But having said that being released on parole in a system such as Iowa is not a constitutional right, because you’re getting to go home early, but your prison sentence is still in place. meritorious parole is a privilege is granted, but all program requirements have been met. For better or worse, these offenders are not eligible for early release from prison until they complete treatment. Thus, that’s in stark contrast, Illinois where they’ve actually exhausted the prison state and are still serving a period of prison time because their mandatory supervised release is being served in custody. The prisoner review board and Illinois won’t release them, because they don’t like where they would propose to go. That’s different than an Iowa and every wrong that occurs in society. It’s not necessarily a constitutional violation. This is morally wrong. And I think it should be fixed by additional funding for treatment, which is in and of itself a tough political sell in an area and an error of no new taxes read by lips.

Andy 36:17
Oh, I don’t have that one queued up. But I do have this one queued

Andy 36:19
up. The notion that everything that is stupid is unconstitutional is probably the besetting sin of judges, anyway,

Andy 36:30
and that Scalia saying that just because you don’t like it doesn’t make it unconstitutional? I think I cued that correctly. That is great. Um, just real quick, as a side note, that can we can we summarize the difference between Iowa and Illinois and this is that the Iowa folks would be getting parole versus those. The folks in Illinois have backed out and they would be getting released on probation or, or even without probation, like they’ve maxed out their sentence. That’s the difference.

Larry 36:59
They have maxed out their term of prison, they have a subsequent sentence called MSR, the mandatory supervised release component, but that is intended to be just listen to the title, mandatory supervised release.

Andy 37:13
Sounds like you’re, I mean, supervision of some sort. So it’s probation. It sounds like,

Larry 37:17
yes, it’s intended to be a supervised community component. But the the prisoner, their equivalent of of the parole board. Let’s say we won’t release them until they have housing that we like, but they’ve already paid their debt in full of the incarceration side, that MSR is intended to be served in the community, your prison sentence, and Iowa is a prison sentence. And if you are released early from that prison sentence that is a meritorious grant this condition upon you doing things that they impose upon you to do.

Andy 37:52
I gotcha. All right, well, then up because I’m confused, because it’s clear that those in prison have a Liberty interest in parole. Iowa code section nine, zero 6.4. Subsection one provides a parole or work release shall be ordered only for the best interest of society and the offender, not as an award of clemency. The Board shall release on parole or work release any person whom it has the power to silver leaves, when in its opinion, there is reasonable probability that the person can be released without detriment to the community or to the person, a person’s release is not a detriment to the community or the person if the person is able and willing to fulfill the obligations of a law abiding citizen in the board’s determination. Theory, they do have a Liberty interest in getting out of prison early. How can you deny this?

Larry 38:44
Well, I’m not denying that at all. There’s no disagreement. The question is, do they have a constitutional right, that requires taxpayers to fund the programming that will permit the parole board because you read the language that would permit the parole board to release them, consistent with all the requirements articulated in Section nine? Oh, 6.4, subsection one? That’s the where in the Constitution. There’s just it’s just not in the constitution.

Andy 39:13
So I think I see what you’re saying though, on page three of the opinion, the court stated, and considering this case, we emphasize that our job is not to approve or disapprove how the state allocates resources in the prison system. We simply conclude that no constitutional violation has been established. The record shows the Iowa Department of Corrections has not postponed treatment in order to delay parole. The problem is simply one of numbers. There are more male PFRs in the Iowa prison system than the treatment program spots available. The DRC has been actively addressing the need for PFR treatment by increasing the number of classes and counselors. The existing waiting list which prioritizes admission to treatment based on tentative discharge date is a reasonable way to decide when the offender gets admitted to treatment. Are you telling me that the court does not have the power to order the state to provide more resources or treatment?

Larry 40:05
No, I’m not telling you that. I’m telling you that is not the role of courts to allocate funding unless it finds there is a constitutional violation. A person serving a sentence of incarceration does not have a constitutional right to early release, nor does that person have the right to be provided anything other than basic medical care. Do you remember all the controversy a few years ago when the court ordered that a sex change be paid for by the taxpayers? Do you remember that?

Andy 40:32
I do recall this and I remember it was a little bit heated, I guess we can say that was a case ordered in the state of Idaho to pay it was due to a ruling from the Ninth Circuit Court of Appeals. Everyone knows that court is dominated dominated by a bunch of liberal pointy heads, Larry, you still have not convinced me Why is this not a constitutional violation. But at the time of the hearing, all seven offenders were on the waiting list to receive track one treatment program, the Sex Offender Treatment Program, that waiting lists had 419 individuals on it, the petitioners occupied positions 209306 341-360-8377 382 and 392 got a forerunner 19. I mean, they’re like they’re on the bottom half of that list. While this case was on appeal, cross was moved off the waiting list and began the treatment program. It’s a conspiracy theory, Larry, and you just will not admit it.

Larry 41:27
Well, I can’t admit it, because the petitioners did not prove such a conspiracy. According to the court, except for a small program for inmates with special medical needs, that I would medical that which is that the one medical classification center and Oakdale. All SMTP programming for men takes place at the new correctional facility. And treatment takes approximately three to four months with track to base lasting somewhat longer than track one. At the time of the hearing. In this case, there were potential slots for 175 individuals to undergo treatment at correctional at any given time. However, the correctional system as a whole has 1600 male inmates needing to complete treatment does an inmate other group of 1600. As they get closer to the discharge date, they would typically be transferred to do correctional and put on the waiting list. The court found that process of assignment on the waiting list is not unconstitutional. It seems to me that the evidence shows that the people are getting treatment. The issue is more funding. And that’s an issue to be determined by the legislature. I mean, you don’t like legislating from the bench. Do you, Andy?

Andy 42:32
Oh, I don’t think we should legislate from the bench. And I guess state constitutions are generally set up like the federal one and the Congress controls the person. I assume that’s who controls the budget generally for the states

Larry 42:44
that the state legislature.

Andy 42:47
While I was reading, I noticed that on pages 16 and 17, that the opinion cites case law from other jurisdictions and stated as a general proposition, prisoners do not have a constitutional right to rehabilitative services. It goes on to list a few cases which I won’t read. The bottom line is that this is not same issue as Illinois, and that these people will have to wait, did I get that? Right, Larry?

Larry 43:11
That’s what the Iowa Supreme Court said, You do, indeed have that right. Unless the people of Iowa, through their elected officials decide to prioritize additional treatment, they will indeed have to wait. As I stated numerous times just because something is not good public policy, it does not magically violate the constitution. Oh, God, I

Andy 43:30
can play that clip again. Let me try this one.

Andy 43:32
Stupid but constitutional. Constitution. Stupid but constitutional.

Andy 43:41
I couldn’t resist doing the WebPart. So any any closing remarks on this case?

Larry 43:48
I feel really bad for the people that are they’re trying to do their best. The sad thing from a public policy perspective, is that we would actually want to incentivize people to do everything they can in the way of programming and to behave themselves for a second chance at freedom. And an earlier Chas, amendment when they served their entire sentence, they’re gonna be released anyway, because they don’t, as far as I know, what does it do what Illinois does continue to hold them in there. But we would want that it would be it should appeal to the conservatives, because theoretically would save some money if people were out in the community. I don’t know that that’s really as much of a savings but we just want these people out being productive, working, paying taxes, and moving on to the next chapter of their life. So it’s, it is unfortunate, but the remedy is not going to come through the courts. I don’t think you’re going to solve this through through court challenges. I just don’t.

Andy 44:44
I’m going to give you a part of an expression and I’m going to hope that you can finish it but if not, I will finish it but I think it goes something like an ounce of prevention is worth a pound of cure. So could we not apply that to this. And if we were to invest a small amount of money on the front side to get more people to go through the treatment stuff, then they would not stay in prison as long, which costs an exorbitant amount of money for it to keep them actually locked up. But we’re not willing to fund it up front. This sounds like getting vaccination versus actually getting treated with a further cure. So it sounds like to me,

Larry 45:22
it does, indeed, but you know, when you when you take a few handful of people out of prison, you really don’t save a lot of money there. I was having a discussion recently, with a colleague of mine, you really save money with prison management, if you can close an institution. But I mean, when you when you take 30 people out of an institution as 1400, you save the cost of breakfast, lunch and dinner. But I mean, the security staff is all in place, the program staff is all replaced, utilities are running, everything is running as normal. I mean, the savings are really insignificant. So you have to really do a significant decrease in population and ideally, to close an institution. So I mean, you you run and say, Well, if I could get these, these four guys out, once you’ve got 1600, what what did that accomplish?

Andy 46:10
I do see that I’m just looking at some sort of tidal wave coming down the pike where some number of those will exceed the capacity of that Newton correctional facility or whatever. And they have to figure out a way to get more of them to go through or else they’re gonna butt up against their max date. And they either let them go without having the treatment or they hold them over heavy. I mean, that’s just an actuarial table. If I’m not mistaken.

Larry 46:35
That’s correct. But But yes, it’s a tough sell on saving money, because treatment costs money, and the savings is margin unless you can significantly decrease prison population. And that’s the tough sell politically, because crime in many instances, the statistics are showing since the pandemic crime has been going up across the country. So there’s a lot of fear against further relaxation of how we treat those who are in prison and those who are facing present there’s there’s kind of a backlash against all this liberal Ducat ism.

Andy 47:08
Well, thank you for helping out. To clarify all those points. Let’s cover this one that we’ve picked at least once out of Connecticut, and the name is Anthony versus commissioner of correction. What’s this case

Larry 47:20
about? This is a lingering case that’s gone on for several years. It’s an Anthony a versus commissioner of correction was decided in 2017. To commit to Connecticut Supreme Court affirmed the judgment of the appellate court which had concluded that Anthony a had a protected Liberty interest in not being incorrectly classified by the Department of Correction as a P F. R, for purposes of determining his housing, security and treatment needs. The bottom line is that Connecticut decided to classify him as a PFR anyway, even though he had not been convicted of a sexual offense.

Andy 48:00
Right, and they what did they base that classification on?

Larry 48:06
Well, well, there’s there’s some Can you just read the partial, extremely redacted excerpts from the court’s opinion? It explains it probably better than I can.

Andy 48:19
Okay, all right. So um, there’s gonna be some level of colorful language here. So if trigger warning, let me let me do it that way. There’s, if you are sensitive to violence, kind of things that this might be coming down the pike, but based on the decision of the court, the petitioner was arrested and charged with several offenses, including sexual assault in a spousal relationship in connection with an incident that occurred on the evening of July 18. And the morning hours of July 19 and 2017 life 2017 Okay. His former wife M informed the police that on the night in question, she and the petitioner had been drinking and smoking some crack cocaine, which caused the petitioner to become paranoid shocker there and to act in a delusional manner. Believing that another person was in the house, he began searching for that person under the bed, in closets, and in the hallway outside the bedroom and looking for used prophylactics. After repeatedly accusing me of having an affair. Petitioner made her take off her clothing and lie on her back, Larry, I’ve reread that sentence a whole bunch of times, and I still don’t see how those two things are connected. Were Pon digitally penetrated her later the petitioner became suspicious that another man had been using his video game system and repeated what he had done. When the petitioner continued to accuse her of having an affair em, out of annoyance, lied to the petitioner that in fact, she was having an affair with one of his friends, which cause the petitioner become violent and to pour soda on em. That also doesn’t make any sense to me, Larry, this is too much to read. So I’m stopping to provide a statement to the police later

Larry 50:00
Hey, Dad, and let me correct that your assets 2017. It’s not correct that the event happened at an earlier year. That was the year the appeal was decided. But, but this is a redacted version of what was in the court. So yeah. In his statement to police, he he admitted he was getting high on cocaine, and questioned him about whether she was having an affair. He also stated throughout the night, as he lay in bed next to him, she said, though, and that she was not in the mood pushing him away. He stated that when him said no, he would stop for a while before trying again, which happens several times throughout the night. And then at one point M got so tired through the phone, she threw a phone at him. And the petitioner stated that he took the phone and snapped it in half.

Andy 50:47
Good sounds like bendgate. It must have been an Apple phone. I’m guessing that the state would have had a strong case on his admission. I recall the accuser subsequently recanted.

Larry 50:56
But she did indeed she did. Every candidate her statement to the police. In a notarized letter dated August 17 2011, which is the correct year, she stated that she did not wish to pursue any charges against the petitioner, that the police report concerning the night in question was inaccurate, and that Petitioner never sexually assaulted her am explain that she have a petitioner are very sexually active. And that tomorrow or her body that evening came from their sexual activity. him further stated that her face was injured when she came out of the shower and slipped on the wet floor. And that Petitioner was not present when she fell, and at no time had tried to harm her.

Andy 51:39
You know, people in prison often end up with different kinds of bruises and stuff and they go oh, yeah, I repeatedly smacked myself in the face in the shower. Probably not true. But so her recantation Should Have Ended the case, Larry, I can guarantee you that. That’s how that went.

Larry 51:55
Unfortunately, it doesn’t work that way. On February 21 2012, the prosecutor informed the court, which was what she was supposed to do. This she had met with him, went for him per the prosecutor that she was abusing substances on the night in question, and that she no longer recalled her conversation with the police, and that she now believes that something different happened from sexual assault, which was alleged to have happened. The prosecutor informed the court that they have also stated that she was that that when she sobered up, and saw what really happened, it was not the petitioner who had sexually assaulted her. And then she slipped and hit her head on the bathroom. She had a seizure. And sometimes seizure makes her belief things that are not actually true, and that she has no memory of whatever she told the police, but now believes that it was incorrect.

Andy 52:48
What did the state do after receiving that notarized statement?

Larry 52:51
Well, the state entered on an old a procedure on the charge of sexual assault and a spousal relationship. The petitioner thereafter plead guilty to unlawful restraint and the first degree failure to appear and violation of probation for which he was sentenced to an effective term of three years and six months of incarceration.

Andy 53:10
You just use the word of Nolet Prosek. What did you say?

Larry 53:14
De la pro ck, that’s a Latin term, which means that the state wishes to not proceed any further is just this case, we wish we wish to move no further on the case. So it’s an essence a dismissal, but it doesn’t have to say title.

Andy 53:28
So Okay. A way that every the case is that the Department of Corrections decided that the petitioner had committed the offense that was dropped after the accuser recanted. And his argument was about the due process clause. It is that is it that is that because the due process clause prohibits the government from depriving a person of any such interest except pursuant to constitutional, constitutionally adequate procedures. The case was remanded to the habeas court for a determination of whether the Department of Corrections had afforded the petitioner the process he was do prior to assigning him the challenge classification. Do I have that right? What was the Supreme Court deciding? Connecticut Supreme Court decided?

Larry 54:10
Well, you do you have you have it right. Pretty soon. I didn’t know you’ve got to have a job right. FYP. home it was it was the petitioners appeal from the judgment of the habeas court denying his amended petition for writ of habeas corpus. The petitioner asserted that the habeas court incorrectly determine that the commissioner of correction did not violate his right to procedural due process in classifying him as a PFR. So the Connecticut Supreme Court had decided in 2017, that he did have the right to be properly classified and that he had the right to due process. So that’s what he was alleging that habeas court didn’t do a good job of. He also claimed the table scored incorrectly determined that his challenge classification did not violate his right to substantive due process or his right not to be punished except in cases that are clear warranted by law and with the Connecticut constitution. The court concluded that the petitioner was not afforded this is the most recent appeal that we’re talking about was not afforded procedural due process protections. He was due prior to be classified as a PFR. And therefore, its classification violate his right to procedural due process under both the federal constitution and our state constitution. And they rejected the substantive due process. Thoughts claim,

Andy 55:27
can you can you explain what the differences between the two,

Larry 55:30
I’ll try both substantive and procedural due process are two different aspects of the same due process of law that originates in the fifth and 14th amendments. However, a distinction between the two is is noticed when procedural due process aims to protect the fundamental right of the individual by ensuring that the government follows the rules. And a free and fair trial is given or the process is as that person has a four day process to substantive due process prevents the government from exceeding the limits, by inventing laws. substantive due process generally serves to put a brake on what the government can do when it announces a broad policy statement. And the procedural due process is you’re entitled to a certain level of procedure before they take away our right which is he had the right to be classified correctly, because that affected his housing and program opportunities. So in order if they were going to classify was a PFR, they needed to give him the adequate process where he would know what he was big. Whatever evidence are we using, let him call witnesses that have tried to rebut their all their presumptions, and nature surely gave him a kabuki kangaroo court. So and it came with a blue key, and it came back to haunt them. The Connecticut Supreme Court did not say you cannot classify someone as a PFR. They had ample evidence to classify him as a PFR. But they just wanted to take a shortcut folks in Connecticut, I know you’re listening, the correction Secretary probably listens, you’re gonna you’re gonna win. All you need to do is just take a little bit more time. Let the person have counsel, if they request it. Let them know what the allegations are. Let them cross examine your witnesses, they’re gonna say that they had all likelihood, in all likelihood, he did commit this offense they got they got dismissed. But they didn’t want they wanted to take a shortcut to classify him. And they did without going all the details. They basically just railroaded him through something that didn’t even even closely resemble due process. And they said, we’re classifying you as a PFR. Well, guess what? Can’t do that. You got to give the person process.

Andy 57:41
And if we overlay this over the new Awai guidelines, whatever coming down, is this a violation of the due process clause?

Larry 57:51
Oh, well, it could be a violation of both forms to due process. We’ll just have to wait and see. I don’t I don’t think I don’t think we know yet. It does these these regulations. I haven’t followed that. You’re talking about the new regulations that were proposed by the Trump administration that are actually going to be implemented under the by administration. Right?

Andy 58:08
That is correct. Yes.

Larry 58:10
Yes. I think there might be some both forms of process that will challenge if those windows do not if but when those become the final rules for Awai. I suspect there will be a number of process challenges both substantive and procedural due process challenges.

Andy 58:26
We’re starting to get short on time. So can you tell me what the court ultimately decided in this case in Connecticut,

Larry 58:33
it concluded that although the petitioner was afforded some procedural protections required, it is clear that he was not provided all of them. And particularly, he was not provided one an opportunity to call witnesses in his defense to adequate notice of information to be relied upon in determining his classification of the PFR ad three, the impartial decision maker to rule and his appeal. He wants to provide it It illustrates, folks, you can do an awful lot if you’ll just follow the rules. That’s all.

Andy 59:05
Very well. Any final notes before we move on to who’s that speaker?

Larry 59:10
Are we running out of time already?

Andy 59:12
Yeah, we’re at 50. Oh, sorry. Almost 60 minutes.

Larry 59:15
Wow. Time flies when you having fun?

Andy 59:19
It does. It does. It does. All right. Well, then I think we can move over to who is that speaker? And last week I played

Andy 59:28
it doesn’t fit. If it doesn’t fit. You must acquit.

Andy 59:33
And I received numerous people signing up for answers and the first one to come in came in. I think even before we were done recorded, but if not it came out as soon as the Patreon version came out. And that was Brian n. And he wins all the glory and fame that we have to offer here. FYP studios do you want to set up who’s that speaker for the next one or should I just played?

Larry 59:55
Well, it just goes way back folks. You’re gonna have to, you’re gonna have to remember back To the decade of Watergate, that’s not enough of a clue. Oh, man,

Andy 1:00:05
there, you just you give stuff away.

Larry 1:00:07
You gotta gotta think back. But this is not a this is not an everyday household name that made this one here. And then, before we play this, we’re anxious to have some submissions from listeners of length that I think we should use. Because we’ve been told that hearts are too easy. So let’s send them send them to Andy. And he will, he will screen them and we will decide which ones to use as recommendations for a mystery speakers.

Andy 1:00:33
You could you could do that send me messages at mystery to the subject of mystery speaker at registry matters And we we can fill these in. But yet, Larry, like everyone is guessing that they’re saying, I’m not guessing because it’s too obvious. So this is going to be a little bit more obscure. Here is this week’s who’s that speaker?

Larry 1:00:55
What did the President know? And when did he know? I will play that again. What did the President know? And when did he know it?

Andy 1:01:07
And that is who’s that speaker for episode 204. So send me a message at registered matters. And same with the subject? Who’s that speaker? WT s or something like that? And tell me who that person is there. We didn’t get a new patrons this week. Did we get any new snail mail subscribers?

Larry 1:01:27
I don’t believe we did. But we’re sending out an awful lot of sample transcripts. So I know that they’re going to come. They’re going to come rolling in here by the dozens in 2022.

Andy 1:01:38
Do you see who I gave you for picture this week?

Larry 1:01:41
No, who did you give me?

Andy 1:01:43
I gave you Johnnie Cochran.

Larry 1:01:47
There is actually a strong resemblance and get us there.

Andy 1:01:50
Yes. And this is a picture of him with the gloves. And what were the gloves?

Larry 1:01:54
Those were the gloves that were alleged to have been used and in the murder of the coal. Yeah, what was his name? Go Goldwyn. What was that? My god? Yeah, dude. Ron, Ron. Ron gold. Ron Goldman.

Andy 1:02:07
Okay. And it’s so if, if the gloves do not fit, you must acquit. That’s what the statement is?

Larry 1:02:14
That’s correct. Good, sir. It could be a number easy before I close it all out. There could be a number of reasons why they didn’t fit. He could have had swollen hands that they we don’t know why they didn’t. The gloves got shrunk. We don’t know why they didn’t fit.

Andy 1:02:30
All kinds of things. Anything else before we close out there?

Larry 1:02:34
Well, I’m gonna just ask now, are we going to be recording on December 28? Saturday, December 25. At our normal time?

Andy 1:02:41
I mean, seriously, no, I can’t imagine we will actually record on Christmas Eve.

Larry 1:02:46
Christmas Day is Sunday, Saturday, I

Andy 1:02:48
mean, whatever Christmas Day, whatever, you’re gonna ask me that for for a month from now. I don’t know it’s a month from now. You might not be here, you might go visit that bridge in West Virginia.

Larry 1:03:00
I’ve given a lot of thought.

Andy 1:03:03
Okay, um, you can find all of the show notes over at registry You can leave voicemail at 747-227-4477 email at registered matters And thank you so very much to patrons that support the program and you can join them. Twitter. There’s a Facebook page if you want you can also go find the show. Do us a favor, go over to YouTube and do like a thumbs up, listen to the program help get some of those numbers up and feed that suggestion engine for more people to perhaps find it. So that’s matters. And I think that’s all I got for the evening. Larry, anything you want to say before we close out?

Larry 1:03:47
I hope everyone had a wonderful Thanksgiving holiday weekend. By the time this gets out. They’ll be back to work.

Andy 1:03:54
Absolutely. Again, Larry, I hope you have a splendid evening. I will talk to you in a few days. Have a great night.

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