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Post by colin bowman on May 18, 2007 20:56:52 GMT 1
What I know of the trial process did not see the defence adequately 'attack' the expert witnesses on the psychological and profiling side. The defence did technically deal adequately with the 'black dahlia' parallel: but the psychological arguments that were integral to the prosecution argument, I do not think were adequately challenged. There may have been good reason for that: namely that the prosecution vision of Luke Mitchell was dripping with psychological modelling, but that modelling was very diffuse; and that modelling had an unclear division, between what was coming out in the media, and what was led as 'expert' testimony at trial. It may be the case that most of the psychological argument in the prosecution, was embedded and somewhat implicit, and not formally explicated by any expert. I think that all this then bears on two areas of defence complaint: firstly, that they as defence feel they were not properly made aware of the nature of the case which the prosecution were going to lead; secondly, that the judge should have moved more strongly on matters of admissibility. With hindsight, I consider that the prosecution arguments concerning psychological suggestions about Luke Mitchell and his family, should be ruled inadmissible: because they were so diffuse, and because they were not formally led by an 'expert' who could have been challenged. Again with hindsight, it can be seen, that had the prosecution laid out every psychological suggestion about Luke Mitchell, formally and comprehensively as you might in any academic paper: then such psychological reasoning would have been admissible; simple because their would then have been some author responsible for such suggestion, where the defence could have then challenged that reasoning just as it would be challenged within a discipline of origin. I think that such a demand is reasonable in this case, because it is difficult to avoid the conclusion that the prosecution circumstantial argument ended so comprehensively dependent on a psychological profiling of Luke Mitchell. That having been said, and seeking to do a 'reverse engineering' trawl of the prosecution case, to see what psychological suggesting about Luke Mitchell they did rely on; proves fundamentally difficult, if not impossible. My personal conclusion then is, that this difficulty arises because the prosecution vision of Luke Mitchell is, in fact, prejudice: that is, it is an instance and action of prejudice; although it presents as an intersecting set of psychological suggestions. Prejudice and psychological profiling differ. Psychological profiling should exhibit all the qualities of academic psychology: it should be clearly definable, its claims and assumptions should be transparent, it should be open to critical scrutiny on a peer-agreed basis. Prejudice is different: intending an existential outcome for another person; and having a massive redundancy to see this outcome existentially guaranteed.
I'm not too knowledgeable, either on appeal process, or on what follows from this or that appeal outcome. I've never felt that formal legal appeal was going to bring Luke Mitchell much if any relief. That relief, if it comes, I judge will come from public domain discrediting of the original processes, of trial and police investigation.
I've spent two or three years going through what data there is on this whole affair. As you indicate, the weaknesses of investigation and trial processes are legion, and ever grow with fresh analysis: but, and a massive but, these proven weaknesses don't see the hydra killed. There is another level to the human processes and perceived logic in this case, and they somewhat defy objective critique: and that again leaves me judging that we here deal with a 'prejudice' phenomenon, which must be addressed as such; where something stemming from that address must then feed back into the public domain, and as advocacy that this trial and conviction are fundamentally unsafe. Advocates for Luke Mitchell's release from conviction have to persuade the public that the police investigation, and the process of trial, were instances of, and perhaps little more than prejudice directed at Luke Mitchell. My personal problem is that I'm still struggling to achieve the methodology for this.
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Post by tinchick on May 18, 2007 21:13:56 GMT 1
I don't know how you 'prove' prejudice, it's one thing for us to sit back and view objectively and hypothetically with hindsight. However, it can be said that I like Marilyn Manson music (some of it ) and probably had a better working knowledge of him, and the Black Dahlia murder case than it could be argued Luke Mitchell had, yet because of my social background and upbringing, I doubt it would feature heavily in a case against me. Despite the prejudicial case that appears to have been presented to the court I fail to see how convinced a jury could be by circumstantial evidence alone. I know I kept asking myself at the time, surely there is reasonable doubt? If this is the case, then perhaps we should be educating jurors more firmly in what they can and cannot believe? And surely this would be equally open to misrepresentation?
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Post by colin bowman on May 19, 2007 0:27:26 GMT 1
I reckon its a matter of moving towards a conceptualisation and modelling of prejudice; where a basis for its auditing in the context of legal process, can be considered. All fundamentally difficult as you sketch out. Perhaps more necessary and required, than it is immediately possible. What this Luke Mitchell case seems to indicate, is: that as general social developments see method in prosecution altered and developed, such that previous checks and balances have less force; then a controversial level of prejudice can end perceived as effecting conviction outcome. So maybe we have to continue exploring that perception; leaving the push onto challenging what is seen as driving such prejudice, to a later and subsequent moment. So the initial consideration of prejudice remains an in-house affair for the advocacy forum: where it has impact because done in the public domain; but does not begin with the force to much directly affect what is seen as prejudice and prejudiced. Often what sees such impact increase, is the coherence of a position: people can come over to that position; where it is that, rather than a direct assault on the power of what the position addresses, which eventually sees the balance of things changed.
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Post by TheWeeMan on May 19, 2007 8:38:11 GMT 1
Cognitive psychology in its study of memory tells us that we remember momentous events in every little datai, particularly if they are personally meaningful to us.
So forgetting what what clothes you were wearing is a bit puzzling.
I think we are losing the point a biit here tho. It is the Prosecutions job to prove that X did Y beyond all reasonable doubt .
Did they thus prove that Luke Mitchell killed Jodie Jones?
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Post by colin bowman on May 19, 2007 12:11:41 GMT 1
I think we are losing the point a biit here tho. It is the Prosecutions job to prove that X did Y beyond all reasonable doubt . Did they thus prove that Luke Mitchell killed Jodie Jones? One answer would be, 'that they did not': the measure of this being that the conviction, and its means of attainment, remain controversial, and remain actively opposed. A second answer would be, 'yes they did': Luke Mitchell was convicted by a persuaded body of peers; an Amazon scale stream in our society's culture currently embodies that conviction. Perhaps you are looking to a (human and collective) plane of consideration and adjudication, beyond what currently obtains in mass occurrence; perhaps one that comes to obtain between yourself and your students. In this case, and for a complex of reasons, there may not be any plane much transcending 'psychology'. We have psychology of individuals involved in this case. We have the psychology of collective processes bearing on this case. I would judge us to have not too much else which takes itself much beyond that 'psychology'. So we have polarisation of judgement as to what was 'proven': that polarisation giving us two cohorts exemplifying and expressing critically differing psychology. The difficulty is, much moving beyond something of a swirling stand-off. A stand-off in which the balance of power currently lies with that psychology which underwrote the conviction of Luke Mitchell. The challenge for Law and Psychology, as I see it, is moving beyond this stand-off. We have to build the (intellectual/cultural/emotional/psychological) means, to establish communication between what is currently polarised. The polarisation undermines consensual embrace of legal process, and that is not good for a society. Alternately, we might accept this (fundamental) polarisation as a permanent feature of an emerging society. That then demanding something of Law, and of all the human sciences. Other models are possible. 'Beyond all reasonable doubt' is a singular item when prejudice is taken to be in play. At one pole the critical matter becomes characterisation (say as being a parentally indulged child, who consequently became not controllable): where, once successfully characterised (Luke Mitchell was unusually and improperly indulged by his mother); then the prejudice fairly automatically does the rest (concluding that Luke Mitchell could go to unusual and dangerous states of self); that then iterating, in one or two further steps, to seeing Luke Mitchell, in a psychotic frenzy, murdering Jodi. For some people, holding strongly to such prejudice, the initial characterisation is the only critical binary decision: was he, or was he not, unusually and improperly indulged by Corrine Mitchell; in the succeeding iterations no significant fresh dealings with the empirical occurs. The critical question in this Luke Mitchell case, is whether or not the prosecution of Luke Mitchell ever went much beyond 'loading' prejudice processes. That then turns out to be a complex question to answer; and one escaping from polarisation no more than does any aspect of this case. That leads me to want to look at prejudice processes within individuals in this case. It seems to me that the prejudice processes that play out on the collective and cultural plane; in this Luke Mitchell case were unusually connected with prejudice processes playing out within strategic individuals. I would suggest Craig Dobbie and Paul Ekman, and perhaps Alan Turnbull, as such; while allowing that there could be others who should be so considered. The question of 'beyond reasonable doubt' then attaches peculiarly to these individuals in this case: where we then deal with a complex amalgam of the heuristically and pragmatically entertained, on the one hand; and matters of personal conviction on the other. My hypothesis is that 'complexity and scale' become the critical matters: a complexity and scale attaching to the prosecution argument; where I would suggest that these qualities saw this case becoming 'overwhelming'. A public were taken beyond where they might have weighed a prosecution argument with any detachment and objectivity: in manner which saw some significant part of that public impervious to what were good defence arguments; it proved not possible for most people to simultaneously entertain prosecution and defence arguments. What is perhaps less recognised is just how that same scale and complexity, almost certainly also overwhelmed the authors of it: to where a prejudice integral to their own psychological processes, was powerfully active; such that the objectivity attaching to their understanding becomes difficult to audit. Not that such objectivity is thereby absent: and I think that it's there where the psychology in this becomes fundamentally interesting. These are all people whose professional role involves them in developing and presenting objectivity for a collective: but in discharging that role, they have recourse to all that they are; there is a professional yet subjective aspect involved. I think that this is the locus where the origins of what is concerning in this Luke Mitchell case originate. My own locus of concern is support of autistic subjects. One thing I focus on, is the understandings of the autistic which others bring forward to their engagement with such subjects. That understanding is generally not separable from their own identity. One of the things that is often required, is to persuade others to suspend these understandings: where such suspension is challenging because attaching to identity processes; but critically important because it adjusts the conditions of occurrence of autistic subjects. Without such suspension of such understanding, both the parties to engagement, 'know beyond all reasonable doubt', what is what. But, see such understanding suspended, and the whole engagement alters. These understandings, which are difficult to suspend, and because integrated with identity process: are what we should understand as prejudice; pre-judgements so critical, and so integrated with all-else of person, that they extrude an (existentially) unassailable empiricality. In this Luke Mitchell case we have two sets of prejudice holding to two distinct understandings. One holding that he is safely convicted beyond all reasonable doubt. Another holding that he is not.
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Post by colin bowman on May 19, 2007 13:36:20 GMT 1
Cognitive psychology in its study of memory tells us that we remember momentous events in every little datai, particularly if they are personally meaningful to us. So forgetting what what clothes you were wearing is a bit puzzling. Given that Paul Ekman (and he working out of psychological perspective which is at least contiguous with the 'evolutionary' approach) was an exceedingly important player in these Luke Mitchell centred events, and that you here bring forward a 'claim' grounded in a particular and alternate psychological perspective: we would seem to have opportunity to reflect on how perspectives crafted and regulated within academic psychology; can break out and have influence on real world events. Psychological claim permeated the prosecution circumstantial case against Luke Mitchell. Yet that same body of psychological claim was not subject to academically rigorous scrutiny. Far from being so scrutinised, the defence seems not to have properly anticipated it, nor thereby prepared for its rebuttal. The psychological claims about Luke Mitchell were not formally explicit and necessarily unified. They were not presented under the protocols met in an academic paper. They were diffuse and suggestive: in the wind of things; never really wholly there to be explicitly and comprehensively challenged. My sense at the time, was that this left a lacuna, where the institution of psychology might have moved to rectify matters. Justification would be on two counts. Firstly, that 'products' of that institution were in use. Secondly, that this institution was best placed to handle the complex mix of suggestion and claim, as to things psychological. I was somewhat shocked that nothing happened on this front. The media can bear some responsibility here. They seeming to seek out only human sciences practitioners who were confirming the prosecution and conviction. But, it was still open to the institution of psychology, to in some manner lodge a concern in public domain. A concern subsisting in a sense that while psychology had been exploited in the prosecution, not all the psychology that should have been brought to bear, then had been. You note above that 'cognitive' psychology would have it that Granny Jones would remember what she wore when finding Jodi's body. That then becomes something of a crux of things. Wheel this psychological perspective into play, and the empirical you suggest, then putatively holds. Wheel it away, and that empirical recedes. Psychology itself, and perhaps nothing else, can take us beyond the binary of the empirical observation stemming from the perspective. Hold to that perspective as your epistemological assumption, identify with it as your prejudice: and its empirical holds. Withdraw those conditions, and that empirical tends to failure. Such consideration holds for all the perspectives in psychology. Assume them, identify with them, and their data are generated, their empirical holds. Withdraw from such commitment, and that empirical fails. That would seem to lead to some basis on which psychology should and should-not take part in legal process. Namely, there should be no such (expert) psychology, or there should be all-psychology. The basis of apparent validity should be laid bare: perceived data following from assumed perspective; such data falling as assumption is withdrawn. The interaction between 'common sense' (public domain understanding) and formal psychology, certainly in a court of law and within legal process, is a highly sensitive one. One difficulty stemming from this Luke Mitchell case, and associated with what is now involved in mounting proper legal defence: is that such defence may be forced to discredit psychology itself, rather as the Mckie case forced defence to discredit the finger-printing services.
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Post by tinchick on May 19, 2007 14:56:23 GMT 1
Cognitive psychology in its study of memory tells us that we remember momentous events in every little datai, particularly if they are personally meaningful to us. So forgetting what what clothes you were wearing is a bit puzzling. I think we are losing the point a biit here tho. It is the Prosecutions job to prove that X did Y beyond all reasonable doubt . Did they thus prove that Luke Mitchell killed Jodie Jones? That's the whole crux of the case isn't it though? In this day in age whilst the burden of proof should be on the prosecution, it seems to be very much more on the defendant to prove their innocence - this is a trend that is exhibited not just in this particular case
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Post by colin bowman on May 20, 2007 10:46:12 GMT 1
That's the whole crux of the case isn't it though? In this day in age whilst the burden of proof should be on the prosecution, it seems to be very much more on the defendant to prove their innocence - this is a trend that is exhibited not just in this particular case The 'historical actuality' of any judicial 'presumption of innocence' is debated. Something has changed as regards this, in immediate times. What has changed, and just why, and what the detail of the change and its impact-footprint might: are all important matters to get some grip on. What then seems to emerge, in a nominally-democratic mass-media time and society: is that a critical quorum are into a psychology, where convincing its members that so and so is guilty of this and that, proves possible; but having these same members entertain (certainly traditional) defence arguments, proves far less possible. My sense is that a media-consumption epistemology/psychology is part of that. A quorum in our population has got comfortable with how they come to understand and see things through the media. That seeing is also now tied in with our social politics, and our patterns of consumption: so its powerful and robust. Whatever the details of this: the Luke Mitchell case shows how, collective prejudice (that is reasoning and perception processes which remain epiphenomenon of deep and grounding psychological processes) can be manipulated to see someone deemed guilty (and then convicted): where, while we see the necessity of, and empirical basis for, a rebutting defence; we find ourselves in a circumstance where such defence proves highly difficult to operationalise. There seems a (psychological) reason for that. Prejudice-based prosecution and conviction, endorses and is endorsed by identity process (both individual and collective): the citizen has a functional reason in being persuaded by such prosecution and conviction. Defence (essentially striving to prove innocence, in some rebuttal) has to ask for these same prejudice processes to be suspended: and there is no function in that, for some significant quorum in our population; all the signs being that ever greater premium attaches to 'membership' (and this it corollary identity) for this quorum. Perhaps this general phenomenon is an epiphenomenon of our society going through great globalising change. In plainer English. We seem to be living in a time where it proves quite possible to 'characterise' someone into perceived guilt: doing so being of a piece with our times and its culture; where it then proves fundamentally difficult to mount a defence as to innocence, which might persuade peers. Generically, this would be of a piece with what has traditionally held for 'patients' within psychology. Once deemed 'schizophrenic', say, it proving very difficult to 'defend' your way out of that diagnosis. The characterisation as schizophrenic not being the nub here, but rather its attachment to a perceived psychological deficit. Where the generic parallel is with guilt adjudicated judicially. Holistically and existentially the two have similar impact on person. This parallel might suggest that this current trend in legal adjudication (of having to prove your innocence), may be difficult to reverse. Perhaps the cohort who have always been wary of the diagnosing psychologist, now overlaps with the cohort concerned about these changes in legal process.
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Post by tinchick on May 20, 2007 18:45:14 GMT 1
But surely the members of the jury, in the main, would have the common sense and decency of purpose to be impartial? No? I mean, if we're saying here, we cannot trust a jury's verdict - then the justice system is up the creek without either paddle or a bail-bucket.
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Post by colin bowman on May 20, 2007 20:45:22 GMT 1
Prosecutions in technical fields (such as fraud) are acknowledged as possibly being beyond a jury who have not technical expertise. I judge that other complex cases may well be beyond a jury to consider holistically. In other instances it is the adversarial nature of our justice system than can introduce complexity as advocates compete. I think that we are in a difficult position, where juries may often be unable to reach proper judgements. My sense is that a problem attaches to our prosecution/defence distinction. Perhaps we would be better served by a legal process which made all judicial agents more responsible for all actions of the process. After all it is the integrity of that process which is primary. We know that individual miss-carriages of justice can occur, no matter what the system: the critical matter is whether all agents abide by a primary responsibility, not to win in their special role, but to serve a legal process which must strive to be fair. But surely the members of the jury, in the main, would have the common sense and decency of purpose to be impartial? No? I mean, if we're saying here, we cannot trust a jury's verdict - then the justice system is up the creek without either paddle or a bail-bucket.
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Post by tinchick on May 20, 2007 21:03:44 GMT 1
then isn't it up to the prosecution/defence to 'educate' the jury in terms the jury can understand? I know I'm badgering here, but I feel on the one hand that Luke Mitchell's trial was far from fair, but that the jury decided he was guilty 'beyond reasonable doubt' in a country where 'not proven' is still a legitimate verdict. Despite my misgivings, I feel that perhaps it is possible for us to be as 'prejudiced' just at the other polar extreme?
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Post by colin bowman on May 20, 2007 22:51:22 GMT 1
The prejudice isn't problematic in itself. We are all inescapably prejudiced. We all have sense and perception and comprehension: which are expressions of the holistic and deep architecture of our persons; and which, as corollary, we are wedded to, and cannot much change. So my prejudice, for example, fulcrums round an extreme commitment to autonomous individuation: where I will hold to my personal integrity, and thereby forswear the collective if that is a consequence; such that my entire epistemology views everything form the point of view of such autonomous individuation. My prejudice becomes a declared interest, in no way hidden: I see what I see in and of the Luke Mitchell; because of my prejudices attaching to autonomous individuation. My reasoning is as transparent as I can make it. I don't then much reflect on the jury. They did what they did. I do not agree with their verdict, on the basis of my consideration of the prosecuting argument and evidence. If pressed, I would wonder just why this jury were persuaded by the prosecution, and were not by the defence: but that would leave me again most considering the detail of that prosecution. I can come to general notions, that defence which must prove innocence may involve arguments beyond the understanding of some people, for whatever reasons. But I can walk away from questions of the jury, and a jury based conviction. I do not feel bound by jury-grounded justice, if I consider that the prosecution argument and evidence did not prove guilt beyond all reasonable doubt. The final adjudication, bearing on my actions in this case, is mine. I have doubts about the conviction, therefore I move to advocate on the basis of these doubts. I am comfortable that my doubts and my advocating reflect my prejudice: a prejudice I seek to make and keep transparent; a prejudice which is integral to anything I might say about this case. To date, other prejudices have held sway, and still underwrite perception that the conviction of Luke Mitchell was and remains safe. As part of a collective advocacy I would hope to displace these convicting prejudices, with ones I am more comfortable with. Yes, I agree that the prosecution/defence should 'educate' the jury in terms they can understand, about the nature and facts and truths of this case. I suspect that then turns out to be a highly complex matter: including many things of law; and many things of human psychology. I suspect we may almost need a new discipline for this. We would certainly seem to need science on how prejudice works in and plays through legal process. then isn't it up to the prosecution/defence to 'educate' the jury in terms the jury can understand? I know I'm badgering here, but I feel on the one hand that Luke Mitchell's trial was far from fair, but that the jury decided he was guilty 'beyond reasonable doubt' in a country where 'not proven' is still a legitimate verdict. Despite my misgivings, I feel that perhaps it is possible for us to be as 'prejudiced' just at the other polar extreme?
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Post by tinchick on May 21, 2007 17:42:17 GMT 1
What is the alternative? Release Luke Mitchell, and you might very well be unleashing a killer in our midst because of a technicality? Or keep him incarcerated, though the conviction may be 'unsafe'? I've changed my tune a lot since he was first put away, I still believe that how he was convicted was a terrible thing, but not why he was, if that makes sense. It scares me to think that this young man was guilty and could not be tried again if appeal was successful. That said, it's a terrible thing to rot in jail (and it isn't really a picnic) for a crime you didn't commit.
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Post by colin bowman on May 21, 2007 19:52:24 GMT 1
The alternative, as I see it, is to establish an intellectual field of consideration, between these polar opposites. Law has always faced this difficulty. The generality of this remains constant; the detail of it reflects a particular time. Today we have media and various human and forensic sciences and societal qualities, which have not obtained in other eras. We begin by 'not knowing'. That is the generic baseline, almost certainly. We have recourse to the instrumentalities of our era, in order that we might seek a judicial 'knowing'. In order to that in this Luke Mitchell case, we should have recourse to all our intellectual instrumentalities. These immediately tell us that something quite strange occurred in this case. The psychological/cultural/logical/judicial aspects of this case, are unusual at the least, and concerning at worst. Why concerning? And what was done that raised that concern? We there do not have to deal with this polarity that you raise. The manner of the prosecution raised concerns. That is sufficient grounds for advocacy to be undertaken. The number of people in whom such concern arose, is so great, as to under-write the necessity and probity of advocacy. That advocacy now claims to see gross and systemic and fundamental weakness and flaw, in all of what led to Luke Mitchell's conviction. Advocacy is challenging the investigation/prosecution-trial/conviction on a sui-generis basis: claiming that very little, if anything, in this convicting machinery, bears scrutiny; the apparent validity of the prosecution vision of things, was fraudulently based, epistemologically speaking. Rather than look at this matter in terms of the individual concerned (a killer released, verus a young man wrongfully convicted): I think we have to look at it in terms of a judicial process; was the judicial process as it should be, was it fair. I judge the judicial process to have been fundamentally flawed, if not corrupted in this Luke Mitchell case. Arguing and communicating that sense proves difficult. The real value, for me, lies in what perspective we have to engender and develop and apply, to progress advocacy in this case. That is then a slow grind. No one is likely to resolve what is concerning in this case, with either a Eureka moment of insight, nor an E=MC2 summation. What is the alternative? Release Luke Mitchell, and you might very well be unleashing a killer in our midst because of a technicality? Or keep him incarcerated, though the conviction may be 'unsafe'? I've changed my tune a lot since he was first put away, I still believe that how he was convicted was a terrible thing, but not why he was, if that makes sense. It scares me to think that this young man was guilty and could not be tried again if appeal was successful. That said, it's a terrible thing to rot in jail (and it isn't really a picnic) for a crime you didn't commit.
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Post by tinchick on May 22, 2007 8:49:58 GMT 1
I don't think the manner in which the prosecution conducted their case has cause for concerns, the fact they were lacking any hard evidence made their job difficult, but they pursued, and successfully showed their case to the jury, who found this man guilty. That is their job, is it not?
And for all the weaknesses that have been picked in the trial after the fact, the defence were still unable to exploit them and secure a 'not guilty' or even a 'not proven' verdict.
I'll agree that what the prosecution were presented to work with was shoddy and cack-handed at best, and how it even got to trial based on someone's 'hunch' I have no idea, and, to me, that's where the system failed.
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