False confessions can sway a jury! 
We suspected early in our analysis why the Jury in the Westervelt trial disregarded or put little emphasis on the factual circumstances of the case. That in itself is an interesting point. The defense lawyers presented nothing but facts and reinforced the case facts throughout the entire trial. The prosecution offered no convincing forensic evidence other than the known case facts. They continually disregarded and discounted any facts that did not fit their theory and must have swayed the Jury to do the same. You might wonder, as we did, how this could have happened. How was a guilty verdict obtained?

Enter into the trial:

A false confession

An extremely poor video or no video

Untruthful and misleading testimony

A circumstantial, unsubstantiated prosecution theory


Now the picture begins to come into focus. We will discuss the first and most important reason, “A false confession” at this time. The others will be the subject of subsequent entries.

Research has shown that Juries everywhere are heavily influenced by confessions. It doesn’t seem to matter if it is a true one or a false one. Erick’s Jury was no different. We have to lean in that direction, because, there is no other logical reason why he was convicted. In past entries, it was pointed out that he more than likely gave a false confession. There are some confidential issues that we cannot elaborate on that support this analysis. However, based on that assumption, for all practical purposes, Erick Westervelt’s confession was not true.

We will present an ABC News article about “How A False Confession Can Sway A Jury”






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About wrongful convictions. 
In previous entries, we have mentioned that the Westervelt case appears to be a classic example of a wrongful conviction. Rather than reiterate the reasoning behind this conclusion, we will focus on how wrongful convictions occur. We have assembled links to several excellent websites that offer expanded views regarding this subject. Please take the time to evaluate this information and reflect upon what could possibly become the expected behavior of people working within the criminal justice system in future years.


Added information regarding the NYSBA Task Force on Wrongful Convictions.


http://www.queensda.org/newpressrelease ... 3_2009.pdf

http://www.queensda.org/newpressrelease ... 2013_1.pdf


Causes of wrongful convictions.

http://www.innocenceproject.org/understand/

http://www.exonerate.org/facts/causes-o ... nvictions/

http://www.thejusticeproject.org/report ... -critical/


Government Misconduct.


http://www.innocenceproject.org/underst ... onduct.php

http://www.exonerate.org/facts/causes-o ... isconduct/

http://projects.publicintegrity.org/pm/default.aspx

http://www.truthinjustice.org/p-pmisconduct.htm





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“There is no justice!” 
“Nowhere to turn.”, “The wheels of justice turn slow.”, “No one is listening”, “Catch- 22 situation”, “No light at the end of the tunnel”.

These sayings and similar ones are uttered hundreds or perhaps thousands of times a day all over the world. Basically they all reflect a sense of despair. Most often they reflect the feelings of those who are incarcerated in a prison. Call it what you want; correctional facility, institution or detention center, it is still prison. They are not free, they are locked in a cell, they are caged, they are restricted, they are demoralized and live in constant fear of being raped. How long would it take them to return to a “normal” life after experiencing this kind of existence for a year or more? The possibility is most likely never.

Now, combine the anxiety of being in a prison for many years and being innocent. People in this situation are degraded to the point of hopelessness. Once convicted and sentenced for a crime that they did not commit, these people are waiting and praying for nothing less than a miracle. Because, that is exactly what it will take to set them free. There is absolutely no help or apathy afforded these people unless there is money to have lawyers working for years to set the record straight. The process is slower than slow and there are absolutely no guarantees that anything or anyone will convince a judge that they were wrongly convicted.

Lately, there has been a tiny thread of optimism beginning to spread throughout the country in the form of innocence projects and innocence commissions. More and more people are learning about wrongful convictions and what produces them. The reasons for wanting to know more about them are varied. Maybe it’s the enormous cost of incarceration or the advanced DNA technology that is exonerating the wrongly convicted. Whatever the reason, the innocent people locked in the prisons are not getting their hopes up. Even if New York State was to adopt an “innocence review board” of sorts, there is a long waiting line which promises to take years to sort through the massive buildup of cases.

Regardless, you have to start somewhere and the New York State Bar Association has undertaken a mission to investigate the causes of wrongful convictions. The NYSBA has been aware for a long time that the probability of a wrongful conviction in NY State is excessively high and actually increasing each year. Recently, they have been analyzing about 50 NY State cases of exonerated people who had been wrongfully convicted. The majority of these people had spent many years in prison before their "miracle" took place. About half of the cases were reversed by DNA analysis. Their intentions are to make recommendations to the NY State government on how to prevent wrongful convictions from occurring in the future.

Again, you have to start somewhere, but remember, “The wheels of justice turn slow” and people like Erick Westervelt are in a “Catch-22 situation” for the foreseeable future. Even if the State adopts the NYSBA recommendations and forms a “case review board”, who gets in line first? The person incarcerated the longest? Would it become a bureaucratic version of the Parole Board? Or will the program fizzle for some reason and never become the watchdog of the NY State Criminal Justice system.

Whatever happens, the incarcerated innocent victims of a crime will still have “Nowhere to turn” for quite some time before there is that faint glimmer of “Light at the end of the tunnel.” In the meantime, they will be hoping for that miracle to come along, Their families will continue to try and win the lottery in order to retain the best lawyers and NCJ will continue to attempt to muster the cavalry for those people in peril.

Unfortunately, irreversible psychological damage has been inflicted upon those wrongly convicted innocent victims and their families. Also unfortunately, very few of them rise above the social stigma associated with their long incarceration and a crime they did not commit. This problem should also be addressed in any overhaul of the system.

Of course, there will always be people maintaining that “No one is listening” and proclaiming that “There is no justice.”

The people at NCJ will remain optimistic. We will continue to have faith and endeavor to improve our criminal justice system.


Here is a link to the NYSBA website and information about the present program.

http://www.nysba.org/AM/Template.cfm?Se ... NTID=21310

Read the NYSBA Task Force’s Preliminary Report here.

http://www.nysba.org/Content/Navigation ... report.pdf


Here are “must read” links to recently exonerated people who were wrongly convicted for murders they did not commit.

http://blog.law.northwestern.edu/bluhm/ ... nvictions/

http://blog.law.northwestern.edu/bluhm/ ... nfessions/

http://www.exonerate.org/facts/causes-o ... nvictions/






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Truth or deception? That is the question! 
Why wasn’t Erick Westervelt’s testimony believed? Why wasn’t his parent’s testimony believed? His younger brother was prepared to verify the same story that they all knew. Erick was at home with them watching the first playoff baseball game of the 2004 pennant race, when the crime was committed. To all of them, it would have been physically impossible for him to be at the crime scene.

They all knew exactly what day and time it was, because of this very distinguishable sports event. Mrs. Westervelt remembered that day vividly also, because she was watching the vice presidential debates that evening while her husband and boys were watching the game.

The police asked them about that day a mere three days later, so why wouldn’t the events of the day be fresh in their mind. But, here is where the investigation began to get skewed and they still do not know why. The police detectives interviewed them at home and the family made it plain that Erick could not have done what they were accusing him of.

Why didn’t the detectives believe them?

Why didn’t they take sworn statements from them?

Why didn’t they interview neighbors and family friends in order to locate someone who might corroborate the family’s statements?

Why didn’t they offer to verify their stories by asking them to take polygraph tests?

Why didn’t they pursue any other theories for possible suspects?

WHY?

Maybe they just didn’t want to believe that his alibi was plausible.

Maybe they didn’t realize that their interrogation method might have produced a false confession.

Maybe they figured Erick’s “confession” was all that was needed to get a conviction.

Maybe they thought that they didn’t need to confirm any of the things that Erick told them.

Maybe they figured that they didn’t need to do anything else.

Maybe they didn’t do a lot of things….. and maybe we may never know.


An NCJ criminal analyst originated this phrase when this blog was first begun more than two years ago and it is displayed at the bottom of each page.

..........An injustice occurs when a crime is not fully investigated............


Apparently, the case was solved as far as they were concerned. Maybe they would just need some type of physical evidence to wrap it up. By all accounts, they were not interested in verifying Erick’s alibi. So, the next thing was to search the Westervelt residence, which was done the day after Erick was arrested. They confiscated a computer and a wooden souvenir replica tomahawk that became the “valuable” evidence in their theory. How much the jury valued the presented information is unknown. The realistic value of this “valuable” evidence is not perceived as such by other professionals and laypeople familiar with the entire case. There were also some articles of clothing, floppy disks, letters, notes and some other items that had no forensic value.

According to Erick, he figured that all of the items that he identified in his “confession” would be easily located at his home and it would become obvious that his signed statement was not true and he would be exonerated. Well, all of the items were there and easily located. But, for some reason, the detectives were not looking to identify anything that would obviously support Erick’s non involvement. Not one thing that was confiscated bore any evidence to support a factual scenario that implicated Erick as the perpetrator of the crime. Apparently, this did not deter the police or the prosecutor. They proceeded to develop a theory based upon flawed information that was never scrutinized by anyone within a criminal justice system that relies on professional integrity.

The family would have had plenty of time to remove, hide or destroy any evidence before the police executed a search warrant. They did not attempt to do anything, because, according to them, there was nothing to hide. All of the bloody clothes, footwear, bandanna, gloves and wooden tomahawk that Erick “confessed’ to have on him the night of the murder and thrown in a neighbor’s garbage can, was right there in plain sight waiting to be found. He claims that he decided to make up a story after being held for an extended period of time, just so he could go home. After all, the police kept telling him it was “no big deal” and he was just being accused of being in a fight with the victim. Another interesting aspect that was never mentioned anywhere is, that if he had disposed of all of his clothing around midnight as stated in the “confession”, he would have been driving home in just a pair of undershorts. Try to put your mind around that scenario; not impossible, but not convincing either. How would he explain that if stopped by police or sneaking into the house? His mother and father testified that he never left the house at all that night and she last saw him at 12:30 AM, before she went to bed.

As far as the souvenir wooden tomahawk, aka the “hatchet”, being the murder weapon, it also turned out to be of no forensic value. The prosecution suggested that there might have been another one like it used to bludgeon the victim. The one they confiscated might not have been the “hatchet” that Erick's "confession" indicated he had disposed of. Regardless, the prosecutor stated in his closing trial statement, “You know what, this actually could have been the one, he could have washed it off, but we don’t know”.

The one thing that we do know at NCJ, is that there must have been some mighty confused jurors.


“Oh! what a tangled web we weave, when first we practice to deceive!”

Sir Walter Scott, Marmion, Canto vi. Stanza 17.
Scottish author & novelist (1771 - 1832)



These are only a few of a great many questions about this case that appears to have been more of a fantasy than a criminal investigation and prosecution of a crime.







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The confession session. 
In previous postings we have touched on many different aspects of the Erick Westervelt case. The major stumbling block for the defense was the “confession”. Without it, the police would not have been able to make an arrest. Without it, the prosecutor would not have been able to present the case in court. In other words, there would not have been a case against Westervelt. The “confession” was everything. The defense tried to convince the jury that it was a “false confession”. They were not successful, probably because they underestimated the powerful impact the “confession” would have on the jury. We mentioned previously that they brought in an expert witness to testify about false confessions. The prosecutor must have surely known that he had to discredit that testimony or lose the case. He was successful and the “confession” remained untarnished.

Recently, an NCJ associate brought the following information to our attention and we are passing it on to you. This is an article written by Attorney David Kopel, the son of a long time Colorado State Representative. We all were in awe when we realized that this 1998 writing was practically verbatim according to what took place during Westervelt’s time with the police in 2004. Kopel’s source of information was Dr. Richard Leo, the famous psychologist and sociologist, who has written many papers about false confessions.

NCJ has examined the transcripts of the two police videos that were presented at trial. These videos were many hours long and the interrogation procedure detailed by Kopel is found throughout. The “confession session” that was not videotaped or recorded, but testified to by Westervelt, bears a strong footprint of the remaining elements of the procedure.

The prosecutor portrayed Westervelt as being a very intelligent, knowledgeable individual who studied criminology and sociology in college. It is just too bad that Erick never read anything written by Leo or Kopel, for he most likely would have realized what the police were doing to him. What is even more ironic, is the fact that the jury never got the chance to really know how false confessions are created.

Here is the beginning of Kopel’s article. Click on the link at the end to read the entire article.


Just Say Nothing by Dave Kopel

What if you've just been arrested for something which shouldn't be a crime? For instance, if a burglar breaks into your home, attacks your children and you shoot him. Should you talk to the police in detail about what happened? In a word, "No." Shut up, call the best lawyer you can find, and then continue to shut up. If you talk to the police, you will only make things worse for yourself.

Sociologist Richard Leo has written several articles which detail the deliberately deceptive techniques which police use to extract a confession.

First of all, since 1986 the Unites States Supreme Court has required that all persons under arrest be given the Miranda warnings, so that they will know that they have a right to remain silent, and the right to a lawyer. So how do police convince a suspect to talk, even after the Miranda warning?

Professor Leo explains that "police routinely deliver Miranda warnings in a perfunctory tone of voice and ritualistic behavioral manner, effectively conveying that these warnings are little more than a bureaucratic triviality." Of course, the Miranda warnings are not trivial; your liberty may hinge on heeding those warnings.


Read More......

http://www.northcountryjustice.com/west2.html






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Coincidence? 
As mentioned at the beginning of this special report, there were two cases in the same town that involved murders that took place just weeks apart. There are uncanny similarities in both cases that boggle the mind. The other case involved Christopher Porco, another college student, who was convicted of murdering his father and assaulting his mother.

A series of news articles about the Porco case and trial can be found at the website of CrimeAndJustice.us

There was much more media attention given to the Porco case; mainly because the victim was a law clerk for a New York State Appellate Court Judge. The news coverage gained national status and appeared on the CBS News program, “48 Hours”.

Here are some of the Interesting aspects about the Westervelt and Porco cases.

1. They occurred in the same township.
2. They occurred 5 weeks apart.
3. The same police agency and detectives investigated the crimes.
4. The same prosecutor’s office and same Assistant DA tried the case.
5. Lawyers from the same law firm represented the accused in each case.
6. Both cases were based upon circumstantial evidence.
7. No DNA or direct physical evidence was found in either case.
8. Both men were 23 year old college seniors.
9. Both murders occurred at night with no witnesses.
10. The accused were the only suspects in each case.
11. The juries disregarded the alibis and mother’s testimony in each case.
12. Both are serving life sentences at Clinton Correctional Facility, Dannemora, NY.

There were definite differences between the two cases though. The most significant being that Westervelt did have an alibi supported by three family members. They stated that he was at home with them watching TV. Whereas, Porco didn’t have an alibi that was supported by anyone. He maintained that he was in his college dormitory, yet no other students confirmed that they had seen him.

In spite of the differences, Westervelt’s alibi was never verified or disproven by the police and the prosecutor convinced the jury that it was not valid. Porco's alibi was not corroborated by the police and the prosecutor maintained that it was not valid either.

There was never any indication that Westervelt and Porco had any connection with each other. Porco lived in the town where both crimes were committed and Westervelt lived in an adjoining town. They had gone to different schools while growing up and attended different colleges.

Nevertheless, there was much speculation that the cases were connected because the news media reported that a hatchet was used in the Westervelt case and an axe was used in the Porco case. As it turned out, there was no hatchet involved in the first one, but there was an axe found at the scene of the other. It was determined that the victims in both cases had suffered from blunt force trauma to the head.


The following is a scathing assessment of each case as it appears on the website of TruthInJustice.org.

Christopher Porco

When police were summoned to the Bethlehem, NY home of Joan and Peter Porco in the early hours of November 14, 2004, they found Peter hacked to death and Joan terribly wounded. Det. Chris Bowdish felt he knew as soon as he walked into the house that one of the two Porco sons, Jonathan or Christopher, had to have been responsible. He asked Joan if Jonathan had done it, and she shook her head "no." Then he asked if Christopher did it, and he says she nodded "yes." There was never any turning back after that; no other suspects were ever considered, and the state built a single-minded case to convict Christopher -- despite Joan's strong support of Christopher's innocence and the irrelevance of a "head nod" as evidence of anything at all.

Erick Westervelt

Funny thing about Bethlehem, NY. In a span of 5 weeks during the fall of 2004, and within a radius of less than 3 miles, two college seniors with no connection to one another hacked people to death. That is the bill of goods sold to juries, first in Erick Westervelt's case, then in Christopher Porco's case. Det. Chris Bowdish and his partner, Det. Charles Rudolph, used classic Reid techniques over a 2-day period to extract what they said was Erick Westervelt's confession to the bludgeoning murder of Timothy Gray. No physical evidence connected Westervelt to Gray's killing, and Westervelt had a solid alibi.

Instead of patting each other's backs, these crack detectives and prosecutors from Albany County, NY should be looking over their shoulders for a serial killer.



In Conclusion:
Were these crimes committed by the same person(s)? There are still a lot of people that feel neither case was proven beyond a reasonable doubt and they question the veracity of the police and prosecution in both of these cases.






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Food for thought. 
Our society has a tendency to be complacent about certain aspects concerning truth and justice. There are people who read and watch the news daily. There are people who are, or become, involved in cases within the criminal justice system such as workers, jurors, witnesses, etc. Then there are others that could care less because the crime or case didn’t affect them. Whatever category it may be, there is always a general attitude that people just don’t care about what goes on; much like in politics. It is easy to see how the media can whip the population into a frenzy concerning a particular gruesome crime. Sensationalism in reporting equates to revenue. However, it is very seldom that an investigative reporter devotes a lot of time to help an individual that might be innocent of a crime by seeking out the truth. That costs too much and generates very little interest or revenue. In other words, it is not cost effective because overall, the public isn’t interested. That brings us to the media aspects of the Erick Westervelt case.

In the first instance, the media broadcast the alleged details of a horrible murder committed by a hatchet wielding, jealous ex-lover, who had eluded the police for two days before being captured. These stories got the public’s attention and made money for the publications and television stations. However, they couldn’t have been farther from the truth. Then they all quickly faded away and latched on to the much higher profile murder case that occurred a few weeks later in the same town involving Christopher Porco. He was another local college student who was arrested and convicted of murdering his father and maiming his mother with an axe. This might have been one of the reasons why Westervelt's case drew very little attention or interest. The media was not investigating or reporting it. Apparently, no one recognized or questioned the hypothesis of this case. If they did, nothing was done to draw attention to it.

If the NCJ analysis of facts in this case is correct, there is someone who does know what took place involving the actual commission of this crime. There is someone who was involved with the criminal justice portion of this crime who does know about the questionable aspects of this case. There is someone who does know something that could blow this whole case wide open and possibly initiate a new investigation.

Please note that the victim in this case succumbed to “multiple skull fractures and brain injuries due to blunt force trauma”, not a sharp instrument like a hatchet, as was released by the police and reported by the media. There were also reports of a replica souvenir wooden tomahawk, or something like it, being used. The actual murder weapon was never found. This crime was extremely violent and our investigation indicates that it is quite possible there was more than one person that inflicted the numerous injuries. Also, as far as eluding the police for two days, Westervelt was easily located going through his normal routine of attending classes at SUNY Albany.

Again, if the NCJ analysis is correct, the real murderer(s) is(are) obviously still among the population and most likely will commit another violent crime; it may have happened already.

Does anyone out there know or care about the truth or justice in this case? There is much more information that needs to see the light of day. Eventually, the whole truth will surface; it usually does, sooner or later. Maybe then, a judge or jury might realize the actual circumstances involved. For Erick Westervelt and others in similar situations, hopefully it will be as soon as possible.






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A picture is worth a thousand words! 
This picture of Erick was taken during happier times in 2004 along side of his aunt at a family reunion.








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Miscarriage of justice? 
“A miscarriage of justice is primarily the conviction and punishment of a person for a crime that he or she did not commit.”

There probably isn’t any human emotional situation that can compare with the despair of being wrongly accused. From early childhood, most every person can recall an instance when they were chastised for, or accused of, something that they did not do. Was it something at school or home when you were blamed for something that another student or sibling did? Think back and capture that feeling. Then fast forward to adulthood and try to imagine being accused of committing a crime that you did not do. Well, you didn’t commit the crime and are innocent; right? You help the police try to figure things out and are cooperative. They relate a story that is “no big deal” and that the crime is minimal and they tell you that you have been accused of doing it. You figure if you just tell the truth, everything will be all right and they will find out who really committed the crime.

In the first instance this is a typical scenario. The police will check your story out, compare it with other stories, the actual truth will surface and that will be the end of it. The problem is that it does not always happen this way when someone changes the rules. The police want more and they are persistent. After many stressful hours, they want a statement from you and they manipulate you into writing some things that aren’t true. Well, as soon as you give them what they want, then they will let you go home. After all, it is just a minor altercation and “no big deal”; WRONG. This is what Erick Westervelt claims happened to him.

Try to imagine the feeling when he realized that the “no big deal” turned into being accused and arrested for the particularly heinous crimes of first degree assault and second degree attempted murder. All along, he was led to believe that they were accusing him of supposedly just being in a fight with the victim. This is the scenario that unfolded in the video tapes during the many hours that Westervelt was being interviewed by the police. He claims to have gone into shock and was totally overwhelmed with despair when they finally stopped lying to him and told him what the actual circumstances were. Not until then had he been aware that the victim had been on life support all along. There were more than 76 inaudible responses from him in the video following this revelation. Would the actual perpetrator be so noticeably overwhelmed and confused knowing the condition that he had left the victim in? The police tactics may have been legal but, did it produce the actual truth of the crime?

What went wrong? Sometimes a little known phenomenon takes place that Psychologists refer to as confirmation bias.

Wikipedia defines confirmation bias as a tendency to search for or interpret new information in a way that confirms one's preconceptions and avoids information and interpretations which contradict prior beliefs.

This type of bias is more commonly referred to as “tunnel vision” and applies to anyone who has horse “blinders” on so that they cannot see what is happening around them. It may sound a bit crude, but that is what takes place if there are not any reality checks and balances within an investigative agency.

Any one of the following causes may produce a miscarriage of justice.

1. Plea bargains which offer incentives for the innocent to plead guilty
2. Confirmation bias on the part of investigators and/or prosecutors
3. Inadequate or improper crime scene investigation
4. Mishandling of evidence
5. Contamination of evidence
6. Fabrication of evidence
7. Withholding of evidence
8. Destruction of evidence
9. Biased editing or manipulation of evidence
10. Faulty forensic tests
11. Poor identification by witnesses and/or victims
12. False confessions due to police pressure or psychological weakness
13. Overestimation or underestimation of the evidential value of expert testimony
14. Misdirection of a jury by a judge during trial
15. Misleading reports and testimony by the police
16. Perjured or tainted reports and testimony by police or forensic personnel
17. Perjured statements and testimony by the real guilty party or their accomplices
18. Perjured statements and testimony by the victims or friends.

Our analysis concludes that there are 15 of the above causes that pose a high probability of involvement in this case. If we are correct, that is an astonishing figure when only one of them might produce a miscarriage of justice.





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A young man’s life on the line. 
An account of the Westervelt trial

On June 20, 2008 we posted the first blog entry about the Erick Westervelt case. There is a link attached that connects to the Truth In Justice website. The link is a copy of a news article in a local Albany, NY, area publication; The Altamont Enterprise. This publication continually produced honest and responsible accounts of this case. We feel that their report entitled “A Young Man’s Life On The Line”, is a concise and accurate review of the Westervelt trial. The editor and staff were very objective in their reporting and reflect a true concern regarding justice in their community.

This news article is fairly short, whereas the actual trial transcript consists of three large volumes containing more than 1130 pages. After thorough evaluation, one conclusion has revealed the “spin” that the police and prosecutors developed for their theory and also utilized in their statements to the media. It makes for sensationalism that is not backed by actual facts.

The news report is an excellent brief for anyone with an interest in the case. We have attached another link of the same article below. We want to ensure that readers see it and gain a better understanding of some of the details in this case. Bear in mind that although we feel their reporting is accurate, there is much more to be learned when the whole transcript is evaluated. It all has to do with the amount of information that is provided about each testimony. A reader must have all of the available information to understand the whole picture in order to draw more accurate conclusions.

http://www.northcountryjustice.com/west1.html






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