Judicial Blacklash

Warren Granville is about the last judge anybody expected to become the target of attack dogs from the Maricopa County Attorney's Office.

Granville was a prosecutor for two decades before he became a judge in 2000. He takes the city bus to the downtown Phoenix courthouse every day, walks to his chambers, puts in a day, goes home, then does it all over again.

The judge is famously soft-spoken and doesn't stand much on ceremony. Last year, for example, he mastered Gerry Spence during a hearing in a little-publicized murder case, chuckling at the famed Wyoming attorney's jokes but kindly letting him know who was boss.


Warren Granville

The judge likes to keep things as light as possible, and his staff feels comfortable enough to poke fun at him when the need arises.

Though Granville may seem something of a milquetoast at first blush, he's not. Unlike a surprising number of jurists, this one isn't afraid to take a stand.

And last summer, a few months after the conclusion of the State of Arizona vs. Patrick Nolan Ivey criminal trial, Warren Granville felt that need.

On May 26, a jury had convicted the 20-year-old Phoenix man of breaking into a Paradise Valley home armed with a handgun. The jurors also acquitted Ivey of armed robbery and of kidnapping a young man who was the victim of the late-night break-in.

Because of Arizona's mandatory sentencing laws, Granville was compelled to sentence Ivey to a minimum of seven years in prison, which he did.

But after sitting through pretrial hearings and a trial that lasted several days, the judge was troubled by a number of things he'd observed. So, as Ivey's sentencing date neared, he did what judges in criminal cases tend to do on a day-to-day basis:

Granville first told the case prosecutor that he was leaning toward invoking a law that allows newly convicted inmates to petition the Board of Executive Clemency and then the governor for a reduction of their sentences within 90 days after going to prison.

Called 603-L, that law was enacted in the mid-1990s to deal with mandatory prison sentences that a judge believes are "clearly excessive."

Then, on August 15, the judge issued his written findings of fact in the Ivey case, and he didn't mince words.

Granville said race and economics had been a factor in the way that the County Attorney's Office had honed in on Patrick Ivey, an indigent black man.

The judge didn't like that one bit.

And, not surprisingly, those in charge at the county prosecutor's office didn't take kindly to being called racists.

Game on.

Judge Granville's explanation of why he was invoking the 603-L provision in the Ivey case was a showstopper.

Based on the trial testimony of home-invasion victim Michael Lawson, the judge wrote that "a number of Brophy [Prep] graduates bought, used and exchanged drugs with one another. [But] in this instance, the State chose to not prosecute the affluent individuals, and prosecute or threaten to prosecute the black, indigent individuals."

Granville suggested that Lawson, who had won immunity from the prosecutor in exchange for his testimony against Ivey, was one of those alleged druggies.

The judge said prosecutor Jennifer Linn "had reason to believe that four Brophy graduates had engaged in possession and exchanging marijuana. No charges were filed against any of them."

He noted that scheduled defense witness Tyriq Manley had declined to testify on Ivey's behalf only after prosecutors threatened to charge him if he did: "In the exercise of its discretion, the State refused to grant Mr. Manley use immunity so he could testify on [Ivey's] behalf."

Granville then pointed out that victim Lawson and another man who testified for the prosecution without fear of being charged for crimes related to this case were "white and wealthy . . . Mr. Ivey and Mr. Manley are black and indigent."

The judge said Ivey's seven-year sentence was excessive and unfair because of "the defendant's age, family circumstances and lack of criminal history as an adult."

He concluded that "the State was able to secure Mr. Ivey's conviction through the craven exercise of its discretion by granting immunity, limiting its prosecutorial focus and denying immunity. Under these circumstances [Ivey's] mandatory minimum sentence is clearly excessive and unfair. He is being the only one held to answer for criminal conduct that the State had reason to believe involved several others."

A week later, Granville sentenced Patrick Ivey to seven years in prison. But the judge also issued a special order under the 603-L law that allowed Ivey to petition the clemency board within 90 days.

On September 13, deputy county attorney Linn filed a testy 10-page objection to the judge's allegations. She offered that one of the "Brophy graduates" the judge had referred to in his memorandum actually was African-American, and that another still-uncharged suspect in the Paradise Valley heist also was black.

Linn wrote that when Granville first had indicated he was going to be discussing race in his 603-L findings of fact, "this was very shocking, as . . . race had never been an issue in the trial."

Linn contended that the reason Ivey had been the only person charged in the case was because of evidentiary problems, not her or her office's alleged bias against poor black people.

Yet it wasn't as if the judge thought that Patrick Ivey had been wrongfully convicted. He wrote in his memorandum that "there was ample evidence supporting the jury's verdict."

But Granville says he was appalled by what he perceived as the kid-gloves manner in which the prosecutor had treated certain people in the case who happened to be white, as compared with the hardball tactics she allegedly had employed with Patrick Ivey and Tyriq Manley.

"You've got to realize that the county attorney['s office] holds all the cards in these instances," Granville tells New Times. "It does the charging, decides what to offer, if anything, in terms of a plea bargain, and determines what witnesses to give deals to. I respect that. Heck, I did it myself for years and years. But in this case, I felt obliged to write my findings of fact [for the clemency board], though I knew Ivey was swimming upstream even if I issued a 603-L ruling."

That's because the governor always has the final say about whether prisoners deserve to have their sentences commuted. Statistics provided by the clemency board show that, since the board's creation in 1994, Governor Janet Napolitano and her predecessors have rarely granted commutations, even with the panel's unanimous recommendation.

News of Granville's strongly worded 603-L ruling became the talk of the courthouse, and the East Valley Tribune published a pair of brief stories about the case.

The daily newspaper's editorial board took a stand against the judge, writing that "Granville believes the poor crook got such a bad rap that he's invoked a loophole in Arizona's tough sentencing law that could spring the creep early."

State clemency board chairman Duane Belcher says that the 603-L law "isn't a loophole by any means. It's a statute that our Legislature devised after we abolished parole in 1993 to allow for the possibility that mandatory sentencing might not result in a just result in every case. The law at least can be looked at as a tool, a safety valve for prisoners who may not have any other recourse."

The Tribune's editorial went on: "County Attorney's Office spokesman Barnett Lotstein called Granville's actions in this case 'judicial activism at its worst.' We would go further and question Granville's fitness as a judge."

Granville half-jokingly defines "judicial activism" as occurring "when a judge rules against you. In this case, I guess that makes me, God forbid, a 'judicial activist.'"

Lotstein, a special assistant to County Attorney Andrew Thomas, tells New Times that Granville "had no right to accuse our young prosecutor or our officer of racism when there was absolutely no evidence of racism. It was an absolutely inappropriate commentary by Warren and without basis of fact, and I can tell you that Andy [Thomas] was shocked and outraged by it."

Perhaps emboldened by the anti-Granville reaction by the media (or at least the reaction of the editorial-desk jockeys at the Mesa daily), the upper echelon at the County Attorney's Office decided to do more than mouth off.

Top county prosecutors tried to bring the judge down.

Official judicial complaints usually concern alleged personal improprieties and slacking off on the job. This time, it was a dispute between a judge and a prosecutor concerning the judge's potent impressions of a case that the prosecutor actually had won.

On August 30, Sally Wells, chief assistant to County Attorney Thomas, filed a complaint against Granville with the Arizona Commission on Judicial Conduct.

It called for sanctions against the judge for what Wells called "unethical" behavior. She alleged that Granville had badly misstated the facts of the case, and then had leaked his 603-L ruling to the media, either directly or through the court's public relations staff.

Wells also accused Granville of injecting race into the case because he hadn't wanted to sentence just one of the co-conspirators (the only one charged to this day) to an extended prison term.

"We believed and still believe that the judge injected his accusations of racism simply to try to get us to change the way we were approaching the case," the County Attorney's Office's Lotstein explains. "But we felt that the defendant [Ivey] was a bad person who deserved to go to prison for what he'd done."

On August 9, 2004, Paradise Valley police responded to reports of a "home invasion" inside a gated residence on East Claremont Drive.

The alleged victim was Michael Lawson, a young man in his late teens living there in his parents' guesthouse.

An officer noted that the guesthouse's interior was in a state of disarray. Lawson claimed two captors had stuck duct tape over his mouth for much of their hourlong invasion.

At first, he said, he had no idea why or how two men he didn't know had picked him and his remote residence for their armed robbery.

The officer wrote that Lawson "seemed to be very calm about the incident," even though he was describing a frightening event in which one of his captors allegedly threatened him with a gun.

Another Paradise Valley officer wrote that Lawson told him at the scene that he'd been getting calls on his cell phone from an old high school friend named "Rob" who'd wanted to hook up before leaving for college. The two had graduated from Brophy Prep in 2003, but apparently hadn't spoken in some time.

Lawson said he'd gotten a cell phone call from someone who identified himself as Rob at the gate at about 1:30 a.m. He'd walked up the driveway to open it up.

There, Lawson said, the two men, both of whom were black, asked him to let them in for some water. One of the men told him that Rob was waiting out in one of the cars.

Actually, Rob wasn't even in the state of Arizona.

As the trio walked toward the guesthouse, one of the men, whom Lawson later identified as Patrick Ivey, pulled out a gun and told him it was a robbery.

Inside the guesthouse, the men duct-taped Lawson's hands behind his back, and collected two duffle bags' worth of goods, including a laptop computer and a separate computer monitor, a stereo amp, a DVD player and other valuables.

Lawson described a fairly benign interaction under the circumstances. For example, he admitted that the robbers had agreed not to steal certain items, including his electric guitar. More important, the men had left without injuring Lawson.

At first, Lawson told police that he probably wouldn't be able to identify either of the two men.

He also let detectives check into the calls on his cell phone, which provided the case's first big surprise.

Yes, someone had phoned Lawson from the same number four times before the invasion, including just moments before the intruders asked for the water.

But it hadn't been Rob.

The phone number led to another ex-Brophy classmate of Lawson's, Gerad Punch.

Punch had been a high school basketball star who was about to start his second year at Furman University in South Carolina on an athletic scholarship.

How Lawson could have mistaken Rob's voice for Punch's is a mystery.

But either he really did get conned by Punch, or he lied to police and later to the jury at Patrick Ivey's trial.

Rob, by the way, is white. Punch is black.

Punch told the police he didn't know anything about a home invasion.

But fingerprints inside the guesthouse and other evidence led police to a friend of Punch's, Patrick Ivey, who also was pals with another Phoenix man, Dion Williams, who soon became directly linked to the case.

Apparently, neither Ivey nor Williams knew Michael Lawson, and neither had attended Brophy Prep.

On October 4, 2004, Paradise Valley police arrested Patrick Ivey outside his west Phoenix apartment complex. A search of his apartment uncovered several possibly stolen items, including a flat-screen computer monitor that Lawson later identified as his.

That evening, Detective John Corcoran and a colleague interviewed Ivey at the Paradise Valley police station.

The chatty suspect confessed to the crimes at the guesthouse, admitting that he and Dion Williams had been hurting for money and that Gerad Punch had devised a plot to get them some.

Ivey said Punch had suggested the rip-off of a rich-kid "pot dealer" he knew from high school, Michael Lawson.

Sounded like a plan.

Punch soon made the first of a series of calls to Lawson on his cell phone. Punch pretended he was Rob, another former Brophy classmate.

The plot was falling into place. Ivey said Lawson readily had agreed to find some marijuana for the alleged Rob. (Much later, Lawson admitted as much to police and then to the jury, though he denied being a dealer himself.)

Ivey said Punch had found Lawson's address in a Brophy Prep yearbook. The three men -- Ivey, Williams and Punch -- had driven into Paradise Valley from Phoenix in two cars.

Ivey admitted that he'd been carrying a semi-automatic handgun, which he claimed had been unloaded (though Lawson couldn't have known that).

He said Punch had waited behind as Lawson let Ivey and Williams into the family compound.

Ivey said he and Williams had confronted Lawson about the marijuana supposedly promised to Rob in the earlier cell calls. Lawson said he'd have to call around to get the weed, because he didn't have any on-site.

According to Ivey's trial attorney, Dan DeRienzo, Lawson made two calls to another Brophy classmate during the home invasion to try to score the drugs.

But Ivey said he and Williams didn't dally too long at the Paradise Valley home. They filled their two duffle bags with Lawson's property, and split.

After Ivey's confession, police booked him for armed robbery, kidnapping and residential burglary.

Based on his statement, they arrested Dion Williams a few hours later. Williams told detectives that he didn't know anything before he clammed up and invoked his right to an attorney.

Gerad Punch also remained free.

Michael Lawson identified Ivey in a photographic lineup, but he couldn't finger Williams in a separate lineup and claimed not to have seen Punch on the night of the robbery.

Williams soon was released from custody, the charges against him dropped.

Instead of getting a multi-defendant indictment, the County Attorney's Office nailed Patrick Ivey alone as the perpetrator of the home invasion.

Then, as Ivey's trial approached earlier this year, Linn decided not to offer him a deal in exchange for his testimony against supposed co-conspirators Williams and Punch.

Dan DeRienzo says he knew he was in for it soon after he was appointed to represent Patrick Ivey.

Then with the county public defender's office, DeRienzo has been a lawyer since 1986, and considers himself skilled at the art of pretrial plea negotiation, a must in criminal defense.

"As things unfolded, it became clear that this was a case that should have been pled," says DeRienzo, now in private practice in Prescott. "But Ms. Linn was being unreasonable in everything. I mean, my guy was the one who pretty much solved the case for the police. The basketball player was, 'I didn't do it,' and he's still free for being dishonest. Same goes for Williams. My guy said, 'This is what happened,' even though that confession was suppressed. I'd ask her, 'Jennifer, why aren't you offering this guy anything, so maybe he'll turn on the other two?' She wouldn't budge."

Last January 4, Linn sent DeRienzo an e-mail about a settlement conference that the defense attorney had been trying to arrange with another judge, which is standard procedure:

"My thoughts are as follows. There is no offer. Settlement conferences are not supposed to be set without first asking the prosecutor, especially where there is no offer, as it is a waste of valuable judicial resources."

DeRienzo snapped back that "the rule does not require the defendant's attorney to obtain the prosecutor's permission in order to enter into good-faith settlement negotiations. . . . In fact, a long and costly trial, followed by long and costly appeals is a waste of judicial resources."

Tensions escalated even more after Judge Granville granted the defense motion to keep Ivey's police confession from the jury.

Months later, Linn wrote in her objection to Granville's 603-L ruling in Ivey's favor that the judge had chosen "to believe the admitted liar [Ivey] over the detective [Corcoran] with 30 years of law enforcement experience and suppressed the confession."

But the court record and interviews with both Granville and defense attorney DeRienzo suggest a much different scenario.

"It was not Ivey's word against the detective's," DeRienzo says. "That's an absolute falsehood."

Detective Corcoran testified at a pretrial hearing that he twice had given Ivey his Miranda warnings, first on the way to the police station and then on videotape before he began his interrogation of the suspect.

However, the videotape shows that Corcoran did instruct Ivey that he had the right to remain silent and that anything he said might be used against him in court. But the detective neglected to tell Ivey of his right to an attorney, instead reminding the young man to consider "all that other stuff" before agreeing to waive his legal rights.

Corcoran claimed at the hearing that he had given the correct Miranda warning the first time, outside the station. But he stumbled badly on the stand when the prosecutor asked him to restate the Miranda warning for the judge.

Before the trial began, Linn agreed to grant immunity from prosecution to Michael Lawson in exchange for his testimony. But in light of what Linn later wrote in her objection to Granville's 603-L findings, the reason for the deal remains unclear.

Linn wrote that "the Paradise Valley police did not find any drugs, drug paraphernalia or anything else related to the drug trade at Michael Lawson's house. . . . Lawson testified that he does not sell drugs, that he did not know what two ounces of marijuana looked like and that he only agreed to do a very stupid thing to help out someone he thought was [Rob]."

So why the deal?

Then there was Rob -- who really does exist. He was the former Brophy student pulled into the case when Gerad Punch, according to the prosecution, masqueraded as him in the phone calls to Lawson.

Rob's only reason for testifying at trial was to say that he hadn't even been in Arizona at the time of the home invasion. To be on the safe side, Rob's parents hired Tom Henze and Mike Gallagher -- two of Arizona's most high-priced attorneys -- to represent him in court.

Linn later tried to make the point that she hadn't granted Rob immunity from possible prosecution, even though his attorneys repeatedly had asked for it.

But the highly remote possibility that Rob might be charged with something had ended after Judge Granville ruled that the lawyers couldn't question Rob at trial about his involvement, if any, in drug use or sales.

"It certainly didn't make any sense that the prosecutor seemed to be fixated on one guy -- my guy -- when you had so much garbage in the case to wade through," DeRienzo says. "But that's what I was facing."

In his opening statement last May, Dan DeRienzo promised jurors that they'd hear important defense testimony from Tyriq Manley, a friend of Patrick Ivey's.

Ivey had told police in his suppressed confession that he'd sold the stolen computer monitor to Manley. Manley had corroborated that in his own interview with detectives.

Then, according to prosecutor Linn, "Mr. Manley changed this story."

He sure did. He suddenly was fingering Gerad Punch as the one who had sold him the pilfered monitor.

Linn later claimed she had been duty-bound to ask Judge Granville to appoint a lawyer to represent Manley, rather than let him implicate himself on the stand for trafficking in stolen property and lying to the police.

DeRienzo says that his adversary "is so full of it! Here's what really happened: The monitor was found in Manley's bedroom. I asked him where he'd gotten it. He told me he'd gotten it from Punch, not from Ivey. Once the confession was suppressed, our defense was that our guy didn't do it, Punch was the guy. So we disclosed [Manley] as a witness, and the prosecutor got to ask him questions.

"One of Linn's questions was, 'When Punch gave this monitor to you, did you think that it might be stolen?' He said he didn't think so, though he'd bought it at a good rate. Then she says she's thinking about charging him with knowingly possessing stolen property. Tyriq freaked, and his lawyer told him he'd better not testify, so he didn't. Here they were giving immunity to their druggie victim and also making sure we couldn't ask Rob about drugs. But then when I came up with a witness, she made what I considered veiled threats about prosecuting him."

Granville took this all in from his vantage point on the bench:

"The prosecutor fought awfully hard to keep Manley from being a witness by not offering him immunity, at the same time as she was making sure that her key witness Lawson and [Rob] had clear sailing. At some point, and it was not a spur-of-the-moment thing, something just hit me about this case in terms of race as well as economics."

Dan DeRienzo says Michael Lawson's testimony during the trial raised new questions.

"We had Lawson's phone records, so we know he called another Brophy guy to try to set up a drug deal," DeRienzo says. "That was no problem for him because Brophy guys always buy and sell weed to each other. He'd told Rob, or the guy he supposedly thought was Rob, 'Come on over, I'll get you some weed.' He then called a pal of his who was in Scottsdale playing poker, as I recall, and started the process of hooking him up with some pot."

DeRienzo adds that the detectives had shown Lawson a photo of Gerad Punch shortly after the home invasion, after Punch's name came up in the cell phone records.

"Lawson told them at first that he didn't know who the guy was, though they'd graduated together," the attorney says. "We always suspected that he knew from the git-go that Punch was Punch, not Rob. After the trial, the jurors asked why Lawson hadn't been prosecuted for perjury for lying to the cops. I couldn't answer that one."

Patrick Ivey didn't testify, and neither did Tyriq Manley. The broken promise to jurors on the latter certainly cost the defense potential points in what had become quite a horse race.

"This whole incident was over drugs, and it wasn't a classic home invasion," DeRienzo says. "The jurors knew that. Patrick was pissed off that this rich Brophy kid who had had everything handed to him on a silver platter was making even more money dealing drugs -- and now he didn't even have any drugs at his house when the three guys showed up. Patrick obviously made a serious mistake."

The panel deliberated over a period of a day and a half before returning its verdicts: Guilty of residential burglary. Not guilty of armed robbery and kidnapping.

Says Ivey's attorney, DeRienzo: "First-degree burglary is entering or remaining unlawfully in someone's home intending to commit a felony. I think that the jury may have concluded that Patrick had been there to buy drugs, which is a felony, and that it had turned into an argument over money."

Judges in criminal cases routinely alert both parties informally about how they're leaning in a given case.

"Sure, I'll tell them what direction I'm leaning in," says Presiding Criminal Court Judge Jim Keppel, another former prosecutor turned jurist. "At least that will give them a heads-up so they can try to change my mind or present testimony at a [pre-sentencing] hearing."

That's what Warren Granville says he had in mind when he e-mailed Jennifer Linn (and copied Dan DeRienzo's successor in the case) last June 27.

"Would [the] state consider dropping [the] allegation of dangerousness to afford Mr. Ivey an opportunity on probation?" the judge asked the prosecutor. "If not, the court will consider invoking 603-L on grounds of the state's choices regarding immunity, the fact that others involved [weren't] prosecuted or punished, and [Ivey's] age and [lack of] criminal history. If invoked, I would be obliged to make my findings on the record. Just a heads up."

Linn responded the following day that "the State will not drop the allegations of dangerousness, as we do not feel probation is appropriate."

Granville replied that "non-dangerous offenses can go to prison, too. In any case, you do what you believe is right. I'll do what I believe is right."

In a letter to New Times from a state prison facility in Yuma, Patrick Ivey wrote recently that "the prosecutor had the decision to drop the dangerousness of the crime so I might have had a chance to be placed on probation, maybe after doing some more jail time. Judge Granville tried to reason with her to do so. She refused, citing her inhibitions due to her supervisor. I feel that is a lie, and she intended to give me as much time as she could."

On Ivey's original sentencing date of July 2, the judge said during a bench conference that his proposed 603-L findings in the case would involve race, and advised Linn she could try to convince him otherwise.

"I was just trying to give her an idea of what I was inclined to do, to give her a chance to take it up the chain or to play chicken and not back down. I'll often tell lawyers, 'These are what my facts are. Tell me why my facts are wrong.'"

But Linn didn't respond to Granville in writing until after the judge actually sentenced Ivey on August 22. At that hearing, the judge announced that he believed "the sentence required by law is clearly excessive and [Ivey] may petition the Board of Executive Clemency for a commutation of sentence within 90 days after [he] is committed to [prison]."

In her belated pleading to Granville, the prosecutor referred to Ivey's confession, to his alleged juvenile criminal history, and to other matters, including the defendant's supposed lack of remorse.

Granville says he considered Linn's memorandum much as he treats letters in support of a defendant.

"If you think a judge is wrong on the law or on the facts of a case, write a memo on the law or the facts and submit it as quickly as possible," he says. "She put things in her pleading that I couldn't consider at sentencing, such as the confession, because I had precluded it. Her presentation was too little and too late."

Judge Granville informed his two supervisors, Jim Keppel and Barbara Mundell, presiding judge over all of the county courts, when he learned that the County Attorney's Office had filed its judicial complaint against him.

He says he asked the pair if they wanted to transfer him to another assignment, perhaps civil or juvenile or family law. They told him to stay put.

"I know Warren well and have the ultimate respect for him as a fair, impartial and professional judge," says Keppel, the county's chief criminal judge. "I just don't know of anything that Warren did in this particular case that merited anything close to how the County Attorney's Office reacted."

Though the judicial complaint by Thomas' chief assistant, Wells, was tantamount to a declaration of war against the judge, it didn't turn out to mean anything on a day-to-day level.

In September, the month after Wells filed her complaint against Warren Granville, prosecutors exercised their right to have county judges in 32 criminal cases removed for various reasons. That month, defense attorneys removed judges in 22 cases.

But no one on either side of the legal fence asked for Judge Granville's removal in any of the 406 cases he had pending in his court.

The 19 death-penalty cases currently before Granville are nine more than the next-closest judge.

"If they think I'm so unfair and biased over there at the County Attorney's Office, then why have they continued to appear in my courtroom?" the judge asks. "I must be doing something right, because lawyers on both sides keep on showing up in my court."

Special Assistant County Attorney Lotstein, who used to be Granville's supervisor when the two men worked at the Arizona Attorney General's Office, explains that away by saying that "we never have suggested that Warren is a bad judge or a bad guy, just that he made a terribly offensive ruling in this case by calling us racists. Maybe he woke up on the wrong side of the bed that day. All I know is that he deeply upset a young prosecutor who doesn't have a racist bone in her body."

That prosecutor, Linn, returned to Granville's court just a few weeks after Ivey's sentencing to try another armed robbery and kidnapping case.

A jury acquitted each of the defendants she was prosecuting.

Last week, Granville received a letter from the judicial commission about the results of the County Attorney Office's complaint against him.

The commission cleared him of any judicial misconduct.

But the panel also chided Granville for his "sweeping statements" about the County Attorney's Office and said it was "concerned about the quantum of evidence" to support his accusations of racism.

In the future, the commission said, the judge should avoid making such "inflammatory" statements.

"I love being a judge, and I think I'm a fair guy," Granville says. "But when you sign up as a judge, you have to act like a judge. I call it like I see it, and I plan to continue to do just that."

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