By Matthew Hendley
By Monica Alonzo
By Monica Alonzo
By Monica Alonzo
By Stephen Lemons
By Jason P. Woodbury
By Dulce Paloma Baltazar Pedraza
By Ray Stern
The teenager doesn't understand why the prosecution of her best friend's alleged rapist failed so miserably.
"It drove me crazy," says Sharon Singer. "I wanted to jump up in court and tell the jury, 'That guy forced her to have sex. She's just a kid. You've got to believe her!' But the prosecutor said he didn't need me. That was stupid. Why can't they start all over and do it better this time?"
Someone explains that you can't try someone twice for the same crime.
"But what if the man in charge [the prosecutor] doesn't get things right?" the 17-year-old counters. "Then what?"
It's a question many have asked since a jury acquitted Xavier Lance Skillman last November 23 of sexually assaulting and kidnaping a 16-year-old deaf girl, Kim Bradley. (Kim and Sharon, who is also deaf, have been given pseudonyms for this story.)
Skillman's acquittal has left Kim wondering why she ever came forward.
"I spoke up because I felt bad inside, and I didn't want to feel that way," Kim says through a sign-language interpreter. "It's like I didn't tell the truth or something."
But Skillman's acquittal alone isn't what infuriates so many people--jurors, a detective, the victim, her family and her friends.
It's why he was acquitted. It's how prosecutor John Beatty handled the case.
Public records and numerous interviews conducted by New Times reveal a disturbing theme: Beatty--an experienced prosecutor whose file contains many letters of commendation--was woefully unprepared to make the case against Skillman. Among Beatty's failings:
ù He didn't meet Kim Bradley until the day before Skillman's trial started. "That's absolutely against how we work in this office," Cindi Nannetti, Beatty's supervisor, says of his tardy attempt to build rapport.
ù He didn't know about Kim Bradley's friend Sharon until the day before the trial started, and then didn't even bother to speak with her. Sharon could have provided vital testimony about Kim's demeanor after the alleged rape.
ù He didn't seek an expert witness who could have shed light on Kim's behavior as a deaf person before, during and after the alleged assault.
ù He neglected to consult with an investigator from his office who instructs police on deaf culture and how it affects the criminal-justice system.
ù He told the jury that Kim had consented to sexual intercourse after Skillman kept insisting. But Kim never admitted the sex was consensual.
"Our burden was not to try the prosecutor's case for him," says Jim Brumfield, foreman of the 12-member jury that deliberated for two days before acquitting Skillman. (He faces another trial on January 31 on charges of sexually abusing five other young women and of kidnaping one of them. Skillman's attorney did not respond to requests for interviews.)
"This whole experience was painful and frustrating and tinged with sadness for me," says Brumfield. "I think Xavier is a very troubled young man. But with what was presented and the way it was presented, you start to ponder those two terrible words: reasonable doubt."
John Beatty describes himself as an overworked prosecutor who was misled by Skillman's attorney into believing the trial would be delayed. Because he got snookered, Beatty says, he was unable to complete his normal pretrial preparation. That's not how his supervisors at the Maricopa County Attorney's Office see it. On December 22, they placed a letter of reprimand in his file, citing many of the failures listed above. After signing the letter of reprimand, Beatty scribbled two lines: "By signing this letter, I merely acknowledge its existence. I do not agree with it, in substance nor essence."
However, in an interview last week, Beatty admitted that he bears the blame.
"There's too much Monday-morning quarterbacking going on," he says, "but, bottom line, I did not do as much as I could have done. I screwed up, and I feel terrible for the girl.
"Yes, I should have met with the victim sooner. Yes, I should have gotten an expert witness. Yes, I should have gotten together with the detective beforehand. Yes, I should have known about [Sharon]. But it wasn't supposed to go to trial when it did."
After the acquittal, two jurors were so frustrated by Beatty's effort that they arranged to meet with Bill Culbertson, division chief of the county attorney's special crimes unit. Culbertson already knew about the case. Even before the trial, Kim Bradley's father had complained to him about Beatty's lack of attentiveness.
"It's all confusing to me," says Bradley's father. "John has too many cases, but that's not my business. My business was making sure my daughter's case was given the attention it deserved. John's a nice guy, but he didn't do that. The result is that this lowlife Skillman gets to pull down his pants and moon the legal system."
"The prosecutor had no idea how to deal with [Kim], because he never did his homework on deaf issues. He should be held accountable. We all should be. Now she's been victimized twice--first by Mr. Skillman and then in a courtroom . . . I cried after this case ended."
Kim Bradley faced the sex-crimes detective at the Glendale Police Department last July 15. Haltingly, the shy teenager described being sexually assaulted two days earlier:
She first met Xavier at Metrocenter a few days earlier. She gave him her phone number--Kim communicates through a telephonic device for the deaf--and he called her. The two made plans to meet at the mall a few days later.
Skillman was cute and seemed nice, Kim said. They met again at the mall on July 13, communicating by note and with hand gestures. Skillman invited her to his house, saying his parents were there. She agreed to go.
But his parents weren't home. Skillman soon started to force himself on her. Kim told him repeatedly to stop, but Skillman wouldn't quit. She became frightened and at a loss about what to do.
"Sex was not what I wanted," she told detective Jan Whitson through an interpreter. "Again and again, I said no . . . I used my voice. I was really nervous and scared and trying to get away from him, but I was stuck. I told him, 'I'm not ready for that.' He just thought it was funny. He's saying yes and I'm saying no. And after that, you know what happened."
Kim said Skillman had sexual intercourse with her twice at the house. She'd been a virgin, Kim told Whitson, and having sex had caused her great physical pain.
She didn't run from Skillman's house. Instead, in a state of shock, she left with Skillman, stopping with him briefly at a supermarket and a fast-food restaurant before taking a bus back to Metrocenter.
Kim mentioned that she ran into her best friend upon returning to the mall. (Whitson didn't ask her to elaborate, an oversight that would have repercussions at Skillman's trial four months later.) Feeling dirty, Kim slathered herself with lotion after scrubbing at a ladies' room. (Trying to "wash away" a sexual assault is commonplace, experts say. However, no one would testify about the phenomenon at Skillman's trial.)
Whitson ended the interview by showing Kim a photographic lineup of six young black men. Kim focused on a photo of the man she said had sexually assaulted her. It was Xavier Skillman.
The Glendale Police Department knew Xavier Skillman well. In fact, when police arrested him in the Kim Bradley case in July, he already was awaiting trial on sex-related crimes against five other young women.
But the jurors who acquitted Skillman of assaulting Kim Bradley would never know until after the trial about the many other young women who had leveled charges of sexual misconduct against him. A more diligent prosecutor might have convinced a judge to allow those complaints into evidence.
Detective Jan Whitson's first contact with Skillman had been in 1992. That May, she'd investigated assault and sexual-abuse allegations made against him by a 15-year-old student at Glendale's Ironwood High School, where Skillman was enrolled. Records show that Skillman was convicted in Maricopa County Juvenile Court of simple assault in that incident, one of many documented by Ironwood authorities during the 1991-92 school year.
For example, Skillman's school file, which was obtained by police investigators, shows that in November 1991, a student accused him of grabbing her by the arm and throwing her against a wall.
"He kept trying to undo my shorts and untuck my shirt," she told a principal. "Every time I would try to get away, he would pick me up and I couldn't get away. Finally, he let me go."
Xavier Skillman's version: "Everything I did she consented to."
Another girl told a principal in late 1991: "[Skillman] is known as Molester Man, presses himself up against me and touching my breasts. . . . He won't take no for an answer."
School officials met with Skillman's parents, according to his file: "Told them about rumors, reputation and he can't keep hands to himself. Mother agreed. Offered solutions--`Another school.'"
But he stayed at Ironwood for another year, despite continued suspensions for "inappropriate physical contact" with female students.
In early 1992, Skillman agreed to seek counseling.
But that April, the father of another female Ironwood student had filed sexual-misconduct charges against Skillman--that complaint led to the Juvenile Court conviction. "He did not seem to understand the meaning of 'no,'" Ironwood principal Davita Sulter-Linquist told a Glendale detective in May 1992.
School officials asked Skillman at the start of his senior year in August 1992 if he'd sought counseling as promised. He said he'd seen a psychologist.
But the doctor's secretary told an assistant principal that Skillman had been in once, only for an evaluation.
Confronted with that fact, Skillman changed his tune, insisting that the psychologist had said he didn't need counseling. It turns out he was telling the truth this time.
"The doctor worked with parents and [Xavier] and services were provided, but no counseling," an Ironwood official noted in Skillman's file. "He thinks this might be enough to get it in [Xavier's] head to stop the behavior."
In October 1992, more female Ironwood High students complained about Skillman. One girl told an assistant principal: "At the Cactus game, he wouldn't leave me alone. [Another girl] saw it and said he had done the same thing to her--in the cafeteria, trapped her in the corner and kept trying to kiss her. I'm really afraid of him. If we were alone, he would have raped me."
Ironwood officials finally expelled Skillman during the 1992-93 school year. He enrolled at Moon Valley High School. In his year there, two girls complained that he'd pawed and rubbed up against them.
A new set of school officials urged Skillman to seek counseling. It's not known if he did. He graduated from Moon Valley High in May 1993.
Xavier Skillman enrolled in the fall of 1993 at Glendale Community College, where he joined the track team.
He also quickly reestablished his reputation as "Molester Man."
In October 1993, a co-ed told Glendale police that Skillman, an acquaintance, approached her in the GCC parking lot. He put his arms around her, pinned her against a truck and started to grind against her. He stopped only after she yelled and elbowed him in the ribs.
That month, another GCC student told Glendale police something that resembled the story Kim Bradley would tell months later.
The student--we'll call her Cathy--said Skillman, a classmate, asked her for a ride home, supposedly to pick up a backpack. Cathy asked a friend to tag along. At the house, Skillman told Cathy he wanted to show her something alone upstairs. Once there, she claimed, he pushed her against a wall and performed his pelvic-thrust routine. Cathy said he released her after a struggle.
On October 13, Glendale police arrested Skillman on the GCC campus. A judge released him from jail as the investigation continued.
GCC suspended Skillman pending an evaluation by school psychologist Bruce Thomas. The conclusions were prescient. Thomas told school officials that Skillman's "anger and rage would continue to manifest itself until Xavier received ongoing intensive treatment. I said his behavior of sexually abusing women would continue and progress . . ."
Skillman withdrew from GCC on October 19, 1993.
He would have one more documented brush with Glendale police before he met Kim Bradley.
In January 1994, a young woman complained to police that a tall black man had accosted her at a Glendale fitness center. She said the man had hounded her, even after she'd repeatedly rebuffed his advances.
The man went away for a time, then reappeared at the Jacuzzi and yanked her onto his lap. She escaped his grasp and ran toward the women's locker room. The man ran after her and shoved her against a wall. She said he'd held her arms above her shoulders while grinding his pelvis against hers.
Luckily, she told detectives, a male passerby had prevented further harm--her attacker retreated.
She later identified her assailant as Skillman. On February 3, 1994, Glendale police again arrested him, on charges of kidnaping and sexual abuse. A grand jury indicted him.
Skillman spent nine days in jail before a judge released him to the custody of his attorney, Reginald Cooke.
The X A V I E R
Gone completely crazy
The muthafuckin' me
Trying to find out why
It's always me
Who can't do shit
Always fuckin' up
Starting to be frustrated and fuckin' stressed
Wonder why I regress in pursuit of being the best
Everytime something good happens
Some bad is right behind
Why is my happiness so hard to find
Shit, I don't know what to do
All the girls are taken
I'm all alone too
No one to talk to because parents just don't understand
Now it's time to become a man
And take command
--excerpt from Xavier Skillman's undated notebook,
seized after his arrest in July 1994
Xavier Skillman denied everything after Glendale police arrested him on suspicion of raping Kim Bradley.
He told detective Whitson he hadn't had sex that day, hadn't even left his house, and didn't know his alleged victim.
Skillman was booked into the county jail--without bond.
That night, police executed a warrant and searched the Skillman residence. It appeared much the same as Kim Bradley had described it. Investigators also found a note in Kim's handwriting, which refuted his claim that he didn't know her.
On July 27, 1994, a grand jury indicted Skillman on three new felony charges--two for sexual assault and one for kidnaping. Like the earlier case involving the young women, it was assigned to deputy county attorney John Beatty.
Prosecuting sex crimes is not for the weak of heart. To a person, the ten deputy county attorneys who work such crimes put in endless hours, on rugged, gut-wrenching cases.
John Beatty was a very busy man in 1994. He went to trial more than any of his peers in the sex-crimes unit, finishing with eight guilty verdicts, three not guilty and one hung jury.
He also earned letters of commendation for his rapport with victims and their families.
"I hope that this case will inspire you to go forward with renewed energy," the mother of a rape victim wrote Beatty last May.
Such recognition makes Beatty's failures in the Xavier Skillman case even more puzzling.
"I have to take some of the responsibility for what happened," says sex-crimes bureau chief Cindi Nannetti. "He's a very good worker, absolutely dedicated. And though his case load is very heavy, I've detected no sign of burnout in him. But in hindsight, I should have discussed his case load with him more carefully."
Beatty realized that Skillman's defense would be that she had consented to sex. But one-on-one "acquaintance rape" cases often are uphill struggles for prosecutors: Kim had gone to Skillman's house willingly. And a medical exam had revealed few signs of trauma.
To obtain a conviction, Beatty had to prove that just because Kim had gone with Skillman willingly, it didn't mean she'd gone there for sex.
The prosecutor also had to give jurors a crash course in deaf issues, explaining factors beyond the disability itself that make deaf people different from their hearing counterparts.
For example, young deaf people often are more naive and trusting than others in their age group. Also, they are more blind to racial differences than the rest of the world: To the deaf, it's more apt to be the hearing and the nonhearing, not black and white.
But Beatty could never educate jurors about deaf culture, because he never educated himself.
He could have called the state Council for the Hearing Impaired, which routinely provides valuable information on such matters.
If that was too much, a veteran investigator who works on the same floor as Beatty gladly would have briefed him. The investigator is known as an expert in how to deal with the deaf in the criminal-justice system.
Perhaps most important, the prosecutor made no effort to connect with Kim Bradley and her family, even as the trial date approached. Prosecutors don't like to question victims extensively before trial, because they don't want opposing counsel to accuse them of "sandpapering" a witness.
But Kim Bradley's parents wanted to meet the man who would prosecute Skillman. Building rapport, especially with a handicapped teen who was frightened about her pending courtroom ordeal, should have been a priority.
The parents say they first made their feelings known to a victim-witness advocate from the County Attorney's Office who visited Kim at home. But the request went unfulfilled.
"I know prosecutors are busy," Kim's father says, "but one little call back to reassure us that he was thinking about my kid's case would have been fine. [Kim] basically wanted to know: Is he gonna be nice to me?"
That's one way of putting it. Another way is how Beatty's supervisors put it after Skillman's acquittal.
"This victim is a special-needs child who has difficulty communicating," Beatty's letter of reprimand states. "It is essential that more time be spent with victims like her to assist in our collective quest for justice. The failure to meet with this victim in a timely manner and to interview and prepare her is unacceptable and impermissible."
Beatty says he was swamped with more pressing cases. He had several other trials tentatively scheduled to start in the same week as the Skillman case.
"I was concentrating on what I had to concentrate on," he says. "I just don't have time to be meeting with victims months before, even if I'd like to. And in this case, I expected Skillman to accept a plea offer that was on the table."
After Skillman rejected the plea bargain, Beatty says, Skillman's defense attorney, Reginald Cooke, assured him that a postponement of the November 14 trial would be fine.
"You have to be able to trust the other side on these things," Beatty says, "or there's going to be big, big problems."
Big, big problems were right around the bend. Beatty had done little preparation on the rape case. Neither, apparently, had Cooke.
On November 14, Maricopa County Superior Court Judge Robert Hertzberg asked the opposing lawyers if they were ready for trial as scheduled. Cooke at first said he was ready to go.
The judge recalls that Beatty expressed surprise, remarking that he'd expected a postponement. But that's as far as the prosecutor went.
"He never said anything about needing more time," Hertzberg says of Beatty. "The dialogue was mostly between me and the defense attorney."
Cooke then tried to backtrack, saying he needed more time to prepare and to interview witnesses. But Hertzberg would hear none of it.
"When there's a firm trial date and the lawyers announce readiness, that's supposed to mean that both sides are ready," the judge says.
Hertzberg had another case starting that day, so the Skillman trial was transferred to Judge I. Sylvan Brown.
It was too late for Beatty to find experts to testify about deaf culture and about how victims of rape may react immediately after the crime.
It also was too late for Beatty to file more than a perfunctory motion asking Judge Brown to allow testimony about Skillman's "prior bad acts"--in this instance, the sexual-abuse allegations that preceded the Kim Bradley incident.
There were other problems: Beatty hadn't even watched the videotape of the Glendale police interview with Kim Bradley, made two days after the alleged rape.
When Kim Bradley's mother learned that the trial of her daughter's alleged rapist would start immediately, she notified Kim, who attends a school in Tucson. Kim and her friend Sharon Singer took a bus to Phoenix.
Glendale detective Jan Whitson says she received a phone call the next morning, November 15, from Beatty's secretary.
"I get a 911 call that the Skillman case is starting at 9:30," Whitson recalls. "I ask, 'What Skillman case, number one or number two?' She doesn't know. I finally learn that it's [Kim's] case. 'Oh, boy.'"
Beatty met with Kim and her family for the first time on November 15, for about 30 minutes. During the meeting, he learned about Sharon Singer--the friend in whom Kim had tearfully confided an hour or so after the alleged assault.
Although Sharon was waiting for her friend in a lobby a few feet away, Beatty, remarkably, never said a word to her. Beatty avows he wouldn't have called Sharon even if Judge Brown would have let him.
"The jury either was going to believe [Kim] or not believe her," Beatty says. "The case was about consent, not what she was telling a friend later. It was a tactical decision. If a jury wanted to convict, they would have, with or without the friend's testimony."
As it was, it was far too late for the prosecution to add her to its list of witnesses. The judge, however, says he might have granted a postponement if Beatty had pushed the right buttons.
"The prosecutor had to offer the girl [Sharon] as a witness," Brown says. "She's admissible as hell, and probably important, but he never asked to get her in. You certainly can't spring witnesses on the defense, and I would have had to give them time to interview her. I can't say how I would have ruled, but there could have been grounds for a [postponement]."
Beatty was unprepared on two other fronts:
He didn't have an expert ready to testify about Kim's behavior, both as a deaf person and as an alleged victim of rape. And it was too late to present a compelling argument that the judge should allow testimony about Skillman's alleged "prior bad acts."
"If an expert will truly assist the jury in understanding what happened," Judge Brown says, "then they testify. In this case, it could have been important for a jury to know how a deaf person may react in certain social situations, how they may be younger than their age group even if their intelligence level is high."
Brown has a reputation for not allowing prosecutors to present testimony of "prior bad acts" unless the evidence is most compelling. But the judge says he would have been interested in hearing Beatty's arguments on the subject, had they been filed in a timely manner.
"You can't bring something like that up on the day of trial like he did," the judge says. "He submits something that came off a machine hours before his opening statement, with no supporting facts. I'll tell you something. If the priors had been down the same path and tended to prove motive or intent, and the prosecutor had submitted a timely motion, he probably would have had a shot."
But not in this case.
Reginald Cooke's game plan became clear as soon as he began his opening statement.
"[Kim] does what other teenagers do," he told the jury. "She has a job, she goes to a mall. [Kim] also has sex. . . . Xavier could tell that [Kim] thought he was cute. The evidence is going to show that she thought he looked a little bit like Kevin Johnson. The evidence will also show that [Kim] happens to like black men. . . . They are doing what a lot of teenagers do. Things can get a little hot. They were cuddling. They were kissing. One thing led to another. And, ladies and gentlemen, they had sex."
In other words, Kim Bradley had been a willing partner.
Kim was the first witness. She says she was very nervous, and didn't know if she could go through with her testimony. Instead, Kim dealt with her anguish by retreating into herself and appearing distant, almost lifeless, to the jury.
She described the first, painful act of sexual intercourse.
"I started screaming no, and I tried to push him off. And then, when it seemed like he was telling me to be quiet, I started getting really scared. I thought that if I resisted him, he might assault me or hit me. So I thought, 'Well, maybe I better be quiet until he's finished.' I did continue to say no."
After being raped a second time, Kim said: "I remember telling myself, 'Be quiet,' and I looked at him to see if maybe he'd let me go or not. And I felt like I was so stupid for going there and letting that happen. And then I felt like a doll. You know, just an empty-headed doll. I was really hurting and so uncomfortable."
Later, at Metrocenter, Kim continued, she met her friend Sharon, and told her what had happened.
Sitting at the prosecutor's table, detective Jan Whitson immediately realized that she and the prosecutor had missed the boat on Sharon Singer. Whitson knew she'd erred in July by not asking Kim whom she'd told and what she'd said.
Kim summed up her feelings in a poignant moment:
"I was real disappointed that Xavier didn't show any respect for me when I said I didn't want to have sex, wasn't ready," she said. "I thought he was a different kind of person. He stole my virginity from me. And I felt so disappointed, because that was a goal of my life. I wanted to be a virgin when I got married."
But there were problems with Kim's testimony. If Beatty had done his homework, he might have known to keep his questions to the girl as simple as possible. But many of his complex queries--filtered through an interpreter--seemed to confuse Kim. She seemed unsure of many of her answers.
Reginald Cooke had a daunting task in his cross-examination of Kim. He couldn't come down too hard on a young deaf girl, but he had to show the jury that this case was about consent, not coercion.
Cooke focused on contradictions between Kim's police interviews and her trial testimony. Kim testified there had been blood in her vagina after Skillman finished with her. But she hadn't told the police that, Cooke pointed out.
"I think I did," the rattled teen said. But she hadn't.
"You wrote a note to [Xavier] saying, 'You took my virginity, but that's okay,'" Cooke continued.
"I can't remember," Kim replied. Actually, the police had found no such note during their search of Skillman's home, and Cooke didn't produce one. But without Kim's direct disavowal, Cooke had planted a seed of doubt with the jury.
Cooke also made points when he asked Kim what she'd told police the day after the incident. During an initial, untaped interview, she apparently told detectives she "ran out" of Skillman's house.
Kim testified that she didn't recall saying that, and that it wasn't true.
To some jurors, this was a moment in the trial when the words "reasonable doubt" first popped into their heads.
But if John Beatty had spoken with any experts on deaf issues, he would have learned a possibly pivotal fact. The sign for "run" is very similar to the sign for "walk." It's quite possible, a certified interpreter tells New Times, that the police interpreter misread the girl's gesture.
Instead, the jury was left with the impression that Kim's story was inconsistent in key areas.
Kim finally left the stand after testifying for hours. Beatty then presented testimony by police detectives and a doctor.
Jan Whitson told the jurors how Skillman had lied to her about not knowing Kim. But she admitted she'd never heard about Sharon Singer until Kim mentioned her on the stand.
"We all wanted to know what the story with [Sharon] was," says juror Marc Slonim. "I mean, if [Kim] told her something right afterward, what was it? What was her mood like? Was she happy or sad? And why didn't the detective know about her? Was anyone hiding anything? That kind of stuff."
It's unusual for a defendant arguing "consent" in a sexual-assault case not to take the stand. But Reginald Cooke decided not to present any defense, hoping that the lack of evidence, other than Kim's inconsistent testimony, would sway the jury.
John Beatty's first of two closing arguments started out well.
"No means no," he told the jury. "She said no. You heard her say it with her voice. A deaf person said no. . . . She got herself into a situation that she could not control. And that's bad. But are you going to blame her for what he did, for taking advantage? He was a predator."
Then the prosecutor made a dreadful mistake.
"He didn't take no as an answer," Beatty continued. "He kept pushing and pushing. She just said, 'Fine. Okay.' This is after all this time."
That left a door wide open for Cooke to argue "consent" even more vigorously. In his closing argument, the defense attorney wisely dropped the white-girl-likes-black-guy theme he'd previewed in his opening statement.
"[It] is not an offense for a young man--a 19-year-old boy--to beg," Cooke said, "and for a woman, a young girl, to feel pressured. That is not a crime."
The jury began its deliberations. It quickly decided that Skillman was not guilty of kidnaping Kim Bradley. But it remained deadlocked for two days on the sexual assaults.
"It was down the middle," foreman Jim Brumfield says. "I was one of the ones for guilty. Then, slowly, we started edging toward reasonable doubt."
Juror Inez Vainauskas had similar misgivings. "You know in your heart that he did something wrong," says the Phoenix resident, "but in the eyes of the law, I started not to be so sure. We just needed a little more--something on being deaf, something from [Sharon]. It's sad."
Immediately after the acquittal, Jan Whitson recalls, John Beatty told her something she'll never forget.
"He told me, 'Jan, I let you down. I wasn't prepared,'" the detective says. "I said, 'You didn't let me down, John.'