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The high price of justice: Sixth Amendment guarantee deteriorating under current U.S. legal system

The high price of justice: Sixth Amendment guarantee deteriorating under current U.S. legal system


Arguments for indigent defense reform are filled with numbers, but there is only one that matters to Kristine Bunch – 17.

It was a day unlike any she experienced before. Bunch and her son, Trent, spent it together – just the two of them – at Chicago’s Navy Pier.

They went to museums. They enjoyed a night of music at Ravinia, north of the Chicago. They talked.

“It was the best,” Bunch recalled, two years later.

Trent turned 17 that day.

It was the first birthday the 41-year-old Bunch was able to be with her son. It was among her first days of freedom.

Trent was born soon after Bunch, formerly of Indiana, began serving 60 years in prison for murder with a concurrent 50-year term for arson, crimes prosecutors argued claimed the life of another son.

A jury agreed, nearly a year after June 30, 1995, the day a fire at Bunch’s Decatur County mobile home killed 3-year-old Anthony. Bunch, 21 at the time, was arrested six days later.

The court appointed an attorney to the indigent defendant, unable to pay the $20,000 up-front fee demanded by the “cheapest” private lawyer. Regardless, Bunch was sure she would get a fair trial and be found innocent, she said.

She later learned money would make the difference between innocence and guilt, she said.

In prison, Bunch vowed to prove her innocence, twice rejecting plea deals that offered lesser prison terms – once before her conviction and another as her fight afterward waged on.

She wrote letter after letter to attorneys, researching the law, and talking with other prisoners about where she might find help. She did this on top of earning undergraduate degrees from Ball State University and working while in prison.

Despite the rejections – if the attorneys replied at all – one letter brought some hope.

It was sent to author Jennifer Furio, who began to look into the case. In 2001, Furio’s book, “Letters from Prison: Voices of Women Murderers,” was published. Furio devoted a chapter to Bunch’s story.

“If ever there existed a story that could force the greatest skeptic to reconsider cynical views regarding a convicted person’s plea of innocence, it would be the case of Kristine Bunch,” Furio wrote.

Still, Bunch and her family continued searching for legal help until a former public defender, Hilary Bowe Ricks, agreed to be retained for $2,250. It took time, but Bunch eventually pulled the money together.

Soon after, Ricks filed a petition for post-conviction relief in 2006. 

“She told me, ‘I believe you, but I don’t know how we are going to prove it.’ She said, ‘We’re going to need money, we need money for investigators, we need help,’” Bunch said. "She said, ‘I don’t know where we are going to get that.’”

One defense expert alone cost $250,000, Bunch said.

But the letter-writing campaign brought more help months later. One letter, written on Bunch’s behalf, was sent to the Center on Wrongful Convictions (CWC) at Northwestern University.

Before CWC attorney Jane Raley and staff counsel Karen Daniel agreed to join the case, Raley read the trial transcript and later met with three fire forensic experts. Each concurred prosecution witnesses testifying at Bunch’s trial were likely wrong.

The “dream team” of attorneys and experts began to emerge, Bunch said. Other attorneys from large private firms joined the case on a pro bono basis. Ricks stayed on free of charge. The costs for experts were underwritten by one of the firms.

It would take that much to win Bunch’s freedom.

“If I didn’t have family supporting me, I don’t think I would have made it through, but I had to hold on and be strong because they were hurt, as well. They were going through it, as well. Seeing them broken and weak and unable to do anything made me a little stronger,” Bunch said.

At trial, prosecutors had relied on a state arson investigator, who testified a liquid accelerant was used in or near two rooms of the mobile home to start the fire.

Testimony from a forensic analyst with the U.S. Bureau of Alcohol, Tobacco and Firearms corroborated the investigator’s conclusions: An accelerant had been found in floor samples taken from the living room – where the fire was believed to have started – and from the bedroom where Anthony was sleeping.

Bunch’s original attorney relied on an independent arson investigator who testified the cause of the fire should have been ruled undetermined because there was a probability it was accidental. During the original trial, any expert the defense called was an expense that first required court approval, Bunch said.

Armed with experts and new science on fires, one of the first things Bunch’s new attorneys did was to subpoena ATF files on the original fire investigation.

Contrary to the ATF testimony at trial, the previously undisclosed documents showed no heavy petroleum distillate had been found anywhere in the trailer, including the bedroom.

The documents, withheld from Bunch’s trial attorney in violation of U.S. Supreme Court precedent, did indicate kerosene was found but only in the living room, where a kerosene heater was used and the fuel could have been accidentally spilled.

“The critical sample in Tony’s bedroom was completely negative,” the CWC wrote on its website.

The petition for post-conviction relief first filed by Ricks was amended with the new experts and evidence, calling for a new trial. The trial judge agreed to an evidentiary hearing that was held in October 2009. He denied relief – eight months later – saying new experts do not constitute new evidence and that he did not believe the ATF documents would have changed the trial’s outcome.

On March 12, 2012, an appellate court disagreed, reversing the conviction and remanding the case for a new trial. The Indiana Supreme Court upheld the appellate decision five months later.

Twenty-four days after, Bunch walked into the arms of Trent and other family, freed from the jail where she was awaiting the new trial. Nearly a week before Christmas that year, prosecutors dropped the charges.

No justice without resources

To this day, Bunch maintains she never should have been convicted. She didn’t think she would be, she said. Poor, she relied on a legal system that took 17 years to uphold her innocence.

It shouldn’t have taken that long, Bunch said, left to wonder how many others with limited resources have been found guilty of crimes they did not commit.

Bunch’s story is one of 1,575 others detailing every known exoneration in the United States since 1989 on the CWC website, as well as at the National Registry of Exonerations, a University of Michigan Law School project founded in 2012 in conjunction with the CWC.

“I think the message needs to be our system is supposed to be based on every person. Every person is supposed to count, and whether they have money or not, they should be treated the same, they should be able to get the same tools to ensure their rights.

“Our public defenders need to be paid more. They need to have more manpower. There needs to be more that goes there so we ensure people’s rights,” Bunch said.

The Sixth Amendment

Take away American’s right to free speech or the right to bear arms and see what happens.

Yet, another constitutional guarantee – the right to counsel outlined in the Sixth Amendment – is deteriorating under a U.S. legal system charged with ensuring fair trials for all, including the poor.

The erosion is acknowledged among court officers, legal scholars and advocates. It has been slipping away for decades, they say, especially when it comes to indigent defense and the right to counsel in criminal cases.

Look no further than the U.S. Department of Justice for proof.

Indigent Defense

“Across the country, public defender offices and other indigent defense providers are underfunded and understaffed,” U.S. Attorney General Eric Holder said while addressing the American Bar Association’s National Summit on Indigent Defense.

That was in 2012, a year before the 50th anniversary of the 1963 landmark U.S. Supreme Court decision in Gideon v. Wainwright, a decision that propelled a defendants’ right to counsel -- even if he or she is unable to afford an attorney -- in both federal and state courts. While the Constitution does not guarantee right to counsel at government expense, the Gideon decision did.

“Too often, when legal representation is available to the poor, it’s rendered less effective by insufficient resources, overwhelming caseloads and inadequate oversight,” Holder continued. “And far too many public defender systems lack the basic tools they need to function properly.”

As a result, he went on to say, “too many defendants are left to languish in jail for weeks, or even months, before counsel is appointed.” Children and adults lack access to legal guidance upon entering the criminal justice system, and some defendants are encouraged to waive their right to counsel.

Many do, agreeing to plea deals that must be accepted immediately, research shows.

Justice, others say, is not being served for reasons that are many, ingrained in an economic and political infrastructure of tough-on-crime laws and stiff penalties, coupled with an overtaxed and underfunded legal system.

Take, for instance, the view of former judge and former FBI Director William S. Sessions, writing in the forward of a 2011 book sponsored by the American Bar Association Standing Committee on Legal Aid and Indigent Defendants. 

“Our nation’s public defense system in state courts, with few exceptions, should be a source of great embarrassment for all of us: judges, bar associations, lawyers, public officials and all other citizens.

“For nearly half a century, almost every state has persistently underfunded public defenders and private lawyers who represent the indigent in criminal and juvenile cases. Such widespread resistance to clear the mandate of the Constitution … has, in effect, created one of our legal system’s most shameful deficiencies.”

A System of Pleas

Consider that another provision under the Sixth Amendment – the right to trial – is rarely exercised as roughly 95 percent of all criminal cases in state and federal courts are disposed by plea bargaining, regardless of guilt or innocence.

“We have a system of pleas in the United States,” said Sarah Turberville, senior counsel at The Constitution Project and a former assistant public defender in Maryland.

“We don’t have a system of trials. In too many instances, (public) defenders are in the position of just trying to stay above water,” Turberville continued.

The Constitution Project, headquartered in Washington, D.C., was founded in 1997 as an advocacy group seeking policy reform and public education initiatives in connection with constitutional challenges, the right to counsel among them.

Without pleas, the legal system would virtually shut down by large caseloads, according to prosecutors, defense attorneys and criminal justice experts.

In 2010, for instance, there were 103.5 million incoming cases reported by state courts across the country, according to a caseload analysis, “Examining the Work of State Courts,” from the Bureau of Justice Statistics, the Conference of State Court Administrators and the National Center for State Courts.

Those cases include civil, criminal and traffic. The number of cases actually declined by 2.5 million from 2009 to 2010, down from two consecutive years when caseloads exceeded 106 million, authors of the report wrote.

Traffic violations made up the majority of those incoming cases at 54 percent, followed by criminal filings at 20 percent.

Excluding traffic, nearly 1.3 million cases were entered into the Illinois judicial system in 2010, managed by 906 full-time judges, the report found. That’s a rate of 1,413 cases per judge.

When it comes to criminal cases, 80 percent of defendants require public defenders or court-assigned attorneys who are working on an uneven playing field, a variety of advocacy groups argue on a joint website, Gideon at 50 ( The Constitution Project is one of those groups.

“Fifty years after (Gideon), chronic underfunding and overwhelming caseloads for public defenders are putting this country at great risk of not fulfilling one of its most important promises: (T)o provide quality representation to those in need,” the groups say.

Public Defenders, Assigned Counsel, Private Attorneys

There appears to be universal agreement among practitioners and scholars that there are many excellent public defenders in the system.

There are as many good public defenders as there are bad private attorneys, they agree, saying the difference comes down to caseloads, resource allocations and compensation.

A 2011 analysis by statistician Thomas H. Cohen of the Bureau of Justice Statistics found no significant differences between public defenders and private attorneys in their outcomes – convictions and sentences – though assigned counselors fared worse in some areas.

In contrast, a 2005 study published in the Ohio State Journal of Criminal Law that looked at marginally indigent clients – those who are in position to either hire or use indigent defense – concluded that private defense attorneys achieve significantly better sentence outcomes.

There does appear to be consistency when comparing court assigned counsel – either those lawyers contracted through a bidding process or private attorneys who are part of a roster to also represent indigent defendants – indicating poorer outcomes, pointing to low compensation and inexperience as the cause.

For instance, Cohen’s analysis, “Who’s better at defending criminals?" found a significant difference in prison sentences between defendants represented by assigned counsel and defendants represented by other lawyers.

Cohen used data collected in 2004 and 2006 by the State Court Processing Statistics Series, which tracked felony cases for one year from the time of filing in the country’s 75 most populous counties, involving more than 50,000 defendants.

Nearly half, 46 percent, of cases involving assigned counsel, resulted in a prison sentence whereas cases with a public defender, 32 percent, and private attorneys, 29 percent, had the same outcome.

“Defendants who are defended by assigned counsel could be seriously disadvantaged compared to those who are represented by public defenders,” Cohen wrote. “The discrepancy in attorney quality and competence raises issues of fairness and justice in the nation’s state criminal courts."

The incarceration rate – be it in jail or prison – in cases with a private attorney was 65 percent, compared to 74 percent in cases with a public defender and 78 percent for assigned counsel.

Conversely, public defenders did better in sentencing terms, with an average of 23 months of confinement. Private attorneys averaged 31 months. Assigned counsel fared the worst, with an average of 35 months.

Despite variables, such as criminal history, conviction rates between public defenders and private attorneys were similar, 73 percent and 72 percent, respectively. Assigned counsel fared worse, with a rate of 78 percent.

Nearly all, about 90 percent, of those represented by a public defender or assigned counsel were convicted of a felony compared to nearly 85 percent represented by private attorneys. The other 10 percent to 15 percent were convicted of misdemeanors.

There was little difference in guilty pleas, with 4 percent of clients with private attorneys choosing to go to trial compared to 3 percent with indigent defenses.

Where’s the Crisis?

Although in Cohen’s study, public defenders fared well compared to other defense attorneys, right to counsel advocates remain concerned.

For starters, the role of the public defender as a client’s advocate is undermined by a myriad of factors from unwieldy caseloads to an uneven playing field in resource allocation and funding, and a lack of independence from political will, said Turberville of The Constitution Project.

That role also goes beyond securing shorter sentences and begins the moment the client-attorney relationship starts, whether ensuring the client understands the charges, bail proceedings, conducting investigations, filing motions, securing experts and preparing for cases, she added.

“A lot of public defenders are operating in an environment that does not make zealous advocacy possible,” Turberville said.

The problem begins with inadequate funding, financial support that is “substantially less” compared to what prosecutions and law enforcement receive at a time when more and more wrongful convictions are being realized, Norman Lefstein, a professor of law and dean emeritus at the Indiana University School of Law, told The Southern Illinoisan.

Lefstein, the former director of the Public Defender Service for the District of Columbia, co-authored: “Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel.” The 2009 report was written for The Constitution Project’s National Right to Counsel Committee. Lefstein also wrote “Securing Reasonable Caseloads: Ethics and Law in Public Defense,” the ABA-backed book referred to earlier.

Excessive Caseloads

“Undoubtedly, the most visible sign of inadequate funding is attorneys attempting to provide defense services while carrying astonishingly large caseloads,” the Justice Denied authors wrote.

“As a consequence, defense lawyers are constantly forced to violate their oaths as attorneys because their caseloads make it impossible for them to practice law as they are required to do … .”

As a consequence, they go on to say, attorneys are unable to interview their clients properly, unable to effectively argue for pretrial release or file appropriate motions, investigate their cases, negotiate with prosecutors or adequately prepare for hearings.

There are guidelines for caseloads. The American Bar Association suggests that each individual public defender take on no more than 150 felonies, 400 misdemeanors, 200 juvenile cases, 200 mental health cases and 25 appeals each year.

Those guidelines are often ignored, with most attorneys taking on twice as many felonies as recommended, according to a variety of organizations dedicated to right to counsel reforms.

Looking at the 27 states with county-based and local public defender offices, the Bureau of Justice Statistics reported in 2007 that 27 percent of offices had a sufficient number of full-time equivalent attorneys to meet caseload guidelines.

That year, Illinois led the way with the most county-based offices with 70, according to the BJS.

The larger the office and caseload, the more likely guidelines would be exceeded. Among those offices with fewer than 1,000 cases a year, 60 percent reported having enough attorneys to meet the guidelines. However, 12 percent of offices with more than 5,000 cases a year said they had enough attorneys.

Combined, the 530 county-based offices across the country received more than 4 million cases in 2007, a median of 2,500 cases with a median of seven litigators, the BJS reported. The number of offices with more than 5,000 annual cases was 154 with a median of 28 attorneys that received a median of 10,100 cases office wide with median population of 430,000.

Those counties with a median population of nearly 70,000 – roughly the population of Williamson County – received a median of 1,553 cases in 2007 and employed a median of five litigators in 123 offices. Williamson County has four public defenders.

Of those offices receiving between 1,000 and 2,000 cases a year, 77 percent reported having insufficient attorneys to meet the national guidelines on caseloads.

Most offices, 52 percent, reported using court assigned attorneys when conflicts arose, such as in those cases involving multiple defendants. Another 23 percent used contract attorneys.

“It’s a problem everywhere,” said Mount Vernon-based attorney Paige Strawn, a member of the Board of Directors for the Illinois Public Defender Association who is contracted by Jefferson County to take on indigent cases. The county has three public defenders.

“It’s a lack of funding. It’s a lack of resources for experts. We’re on shoestring budgets all the time,” Strawn added.

Local Funding

In Illinois, indigent defense systems are paid primarily through local funding, covering 80 percent of the cost. The state pays the balance. Nearly all of the 102 counties use a full-time public defender system or contract attorneys. Three, including Johnson County, use assigned counsel.

Most chief public defenders in the state are appointed by the presiding circuit judge in each county. The exceptions are counties with more than 1 million in population in which the president of the county board makes the selection.

The state covers about 66 percent of the salary for chief public defenders, the result of legislation to establish equity in salaries between chiefs and state’s attorneys.

It was not that long ago when it was common for public defenders to earn roughly $45,000 compared to six-figure incomes for prosecutors, Strawn said. She added she knows of a public defender who pays her own cell phone used for work because she does not have an office phone.

To Strawn, the issue between prosecutors and public defenders is not one of skill or talent as litigators. They have the “best” public defenders in Jefferson County, she said, maintaining that large caseloads do not necessarily drain that skill level.

But, she said, “it should be concerning. It would concern me if I were a defendant. You have to wait your turn. You get to speak to your attorney just before your hearing. They probably don’t recognize you because there are so many."

While some argue that budget comparisons between prosecutors and public defenders is misleading – state’s attorneys also handle civil cases and represent their counties – the reality is there are far more assistant state’s attorneys than there are public defenders.

The disparity in funding is made poignant when looking at how states spend their Byrne Justice Assistant Grant funds from the Department of Justice. The funds are made available to courts, law enforcement, non-profit organizations and others.

In a review of Fiscal Year 2009 allocations by the National Criminal Justice Association, the group found that $20.8 million went toward prosecution. Public defense programs received $3.1 million. A total of $1.2 billion was allocated for all programs, bringing the public defense allocation down to roughly one-quarter of 1 percent.

Uneven Playing Field

First Assistant Public Defender Pat Reardon of the Cook County Public Defender’s Office, scoffs at the suggestion that budget comparisons are misleading. There is disparity when it comes to case resources and expenditures between the two offices, he said.

One example of that difference is law enforcement. Prosecutors have ready-made investigators in police. Throw in crime labs, mental health evaluators and other taxpayer-funded assets, and an uneven playing field emerges, he said.

“They have more horses in court than we do,” said Reardon, whose office has 500 attorneys compared to about 1,200 in the state’s attorney’s office. Many of those attorneys handle civil cases as well as all criminal matters compared to public defenders who handle about 90 percent of criminal cases, but Reardon said that difference is insignificant compared to the lack of resource parity in a courtroom.

“If the prosecution is spending $10,000 on a case, the defense ought to be able to spend $10,000 on a case,” Reardon said. “When prosecutors go into court, they have all of their work done for them by investigators … . That’s free service for them.

“If the defense wants to challenge any of that, they have to hire independent experts. So, their budget needs to be greater. For them to say that they need more money than the public defender is nonsense,” he continued.

Wrongfully Convicted

As of earlier this month, 1,578 wrongfully convicted men and women have been freed from incarceration since 1989, reports the National Registry of Exonerations, a University of Michigan Law School project founded in 2012 in conjunction with the Center on Wrongful Convictions at the Northwestern University School of Law.

Last year set a record for exonerations with 125, a 37 percent increase over the two previous years when 91 wrongfully convicted cases were recorded for each 2012 and 2013.

Most of the wrongfully convicted were indigent defendants, observed Registry co-founder and editor Samuel Gross.

“Indigent defense is what the system is about,” he said. “The well-to-do or middle class people who can afford their own attorneys are a comparatively small minority among defendants.”

The 2014 exonerations were recorded in 27 states and the District of Columbia, led by Texas, New York and Illinois – where seven cases were reported.

Once again, the issue of plea bargaining emerges. There is a reason defendants take a guilty plea. They don’t want to go to trial and risk a harsher sentence, the Bureau of Justice Assistance under the Justice Department reported in 2011.

Yet, with pleas, there is growing evidence of the innocent accepting guilt in exchange for lesser sentences, the risk of going to trial too great, said Larry Golden, founder of the Illinois Innocence Project at the University of Illinois in Springfield.

“It wouldn’t surprise me because I think many, many plea agreements by virtue of the process tend to be coercive,” Golden said. “They can be coercive just in terms of if you don’t take a plea, we’re going to throw the death penalty at you.”

Of the 2014 exonerations, 47, or 38 percent, originated from wrongful convictions stemming from guilty pleas.

In 2013, 17 percent of exonerations stemmed from guilty pleas resulting in conviction. The long-term rate has doubled since 2008 while the actual number continues to climb, the Registry reported.

Given the high volume of indigent defense coupled with the innocent accepting pleas raises growing evidence that justice is being denied, said Lefstein of Indiana University.

“When you have overwhelming numbers of persons who take pleas in cases that never go to trial it is highly suggestive of the fact that cases have not been adequately investigated or prepared,” Lefstein said.

Why should you care?

James Kluppelberg walked out of the Menard Correctional Center in Chester a free man in 2012, after serving 25 years of a life sentence for a crime he did not commit.

More than a year later, a judge granted the Chicago man a certificate of innocence of an arson that killed six people in 1984 in the city. He was convicted in 1989.

A false confession and accusation, bad evidence and official misconduct were contributing factors in the wrongful conviction, according to the National Registry of Exonerations.

He said he was grateful for a team of lawyers, including public defenders for working to clear his name. But reforms are needed, he said, particularly when it comes to indigent defense.

“Unfortunately, the saddest commentary on all of this in our justice system is the public just don’t know … . We can’t begin to fix the problem until we begin to recognize it,” he said. “People should care because one day it might be their brother or sister.”

Dozens of advocacy groups across the country have been calling for funding reforms, increased training for attorneys and caseload restrictions for years.

The Illinois Legislature this past year took a step toward helping those who plead guilty despite their claimed innocence.

Former-Gov. Pat Quinn signed a bill into law in August allowing defendants who plead guilty to try to convince a judge to reopen their case if new DNA evidence emerges.

According to the National Legal Aid and Defender Association, 88 percent of Americans believe the quality of justice should not be determined by how much money a person has, and 64 percent support using tax dollars to provide lawyers to those who cannot afford one.

The group also says that 88 percent of people believe prosecutors and public defenders should have the same level of resources per case, while 94 percent believe caseloads should be managed to give attorneys time to prepare.

One issue is there are no universal mandates on indigent defense, leaving it to each state to determine how to fund and oversee programs, according to the Association.

For instance, 22 states administer and fund all indigent defense services at the state level, while 18, including Illinois, rely primarily on county funding. Illinois funds 20 percent of services and reimburses 66 percent of the salary for a chief public defender in those counties with populations of 35,000 or more, required to have the office.

Illinois is also one of four states with a commission overseeing state appellate defenders, but the trial-level defender system is left up to counties. Other states have created independent boards for oversight across the system to foster independence from executive, legislative or executive control.

In 2012, an 18-month indigent defense improvement project was completed and produced five core principals and called on the U.S. Department of Justice to take action.

The project was conducted by the American Bar Association’s Standing Committee on Legal Aid and Indigent Defendants and the National Association of Criminal Defense Lawyers. It was funded by the Bureau of Justice Assistance, a branch of the Justice Department.

The principals were produced keeping “scarce” funding in mind, according to the groups’ report. They include:

• Reclassifying petty and non-violent offenses to reduce “overcriminalization” that leads to unmanageable caseloads;

• Ensuring counsel is provided to defendants at all initial court appearances, particularly when it comes to decisions about bail, to cut down on cost of detaining, especially those charged with minor offenses;

• Ensuring access to effective counsel;

• Consulting with defense bars before new law enforcement initiative are launched that can impact the work of indigent defense providers, and

• Fostering greater private-public involvement in indigent defense under a structured system.

Putting the pieces back together

Though Kristine Bunch now has her freedom, the toll of prison weighs on her still. Assuming, as she said, she can be free -- free from the stares and whispers when shopping or at the bank to set up a checking account; free from the preference for solitude in an unfamiliar world of technology; free from a past she knows she will never escape.

What helps her get through is her determination to share her story with others, to do what she can to protect people’s rights to fair trials She is often invited to speak at Innocent Project forums hosted by law schools, churches and civic groups.

The talks are as much for her as they are for others, she said, part of rebuilding her life.

“I use my free time to talk and educate the public about what it is like to walk out after a wrongful conviction, what’s needed to stop wrongful convictions, what’s needed to correct them and, basically, raise awareness about what it is like after somebody walks out after being away for 17 years and what a hard transition period it is,” Bunch said.

Part of that challenge includes reconciling with her son, Trent, who continues to live in Indiana with his grandmother. But there is at least one thing that Bunch can look forward to -- being with him on any given day, including his next birthday.


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