EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

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Friday, February 6, 2015

Fixed Lividity/Livor Mortis: The Experts Weigh in on a Side Burial in the 7:00 Hour

This is my fifth in a series of posts about livor mortis/fixed lividity (first postsecond postthird postfourth post). I've made two claims: (1) it is unlikely that a body could be on its side for about five hours after death and exhibit solely anterior (frontal) lividity with no lateral (side) lividity; and (2) it is unlikely that a body could be buried on its side about five hours after death and exhibit solely anterior (frontal) lividity with no lateral (side) lividity.

These claims have particular relevance for the case discussed in the Serial Podcast: the death of Hae Min Lee. The State's contention was that the 5'8" Lee was strangled by Adnan Syed, placed in the trunk of her 1998 Nissan Sentra for about five hours, and then buried in Leakin Park. The State's key witness said on at least one occasion that Lee was "pretzeled up" in the trunk (ostensibly on her side), which would seem to have to be the case because the trunk of the Sentra was probably about 52 inches wide. When Lee's body was discovered in Leakin Park weeks later, it was on its right side and had fixed frontal lividity, which was also consistent with the key witness's testimony on at least one occasion that Lee was buried on her right side.

Yesterday, I posted information about the Assistant Medical Examiner who performed the autopsy on Lee, which I thought tended to show that she would have supported both of my claims. Today, I have information from (1) pathology residents who have completed extensive rotations in forensics; and (2) a former forensic medical investigator. I think that both sources of information tend to corroborate my claims.

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February 6, 2015 | Permalink | Comments (1) | TrackBack (0)

Thursday, February 5, 2015

Livor Mortis/Fixed Lividity: Why the ME Would Have Said a Side Burial of Hae in the 7:00 Hour Was Impossible

This is my fourth in a series of posts about livor mortis/fixed lividity (first postsecond postthird post). I've made two claims: (1) it is unlikely that a body could be on its side for about five hours after death and exhibit solely anterior (frontal) lividity with no lateral (side) lividity; and (2) it is unlikely that a body could be buried on its side about five hours after death and exhibit solely anterior (frontal) lividity with no lateral (side) lividity.

These claims have particular relevance for the case discussed in the Serial Podcast: the death of Hae Min Lee. The State's contention was that the 5'8" Lee was strangled by Adnan Syed, placed in the trunk of her 1998 Nissan Sentra for about five hours, and then buried in Leakin Park. The State's key witness said on at least one occasion that Lee was "pretzeled up" in the trunk (ostensibly on her side), which would seem to have to be the case because the rear passenger compartment of a 1998 Sentra was 48 inches wide. When Lee's body was discovered in Leakin Park weeks later, it was on its right side and had fixed frontal lividity, which was also consistent with the key witness's testimony on at least one occasion that Lee was buried on her right side.

Based on prior information I'd read and received, I already felt strongly about both of my claims. I also felt strongly that if Adnan's trial attorney had pressed the doctor who prepared the autopsy report for Lee on these two issues, she would have given responses that would have hugely helped the defense. But you never know. Well, now I do. Part of this is based upon a particular case from that doctor's past, which I will discuss today. Part of this is the responses I've gotten from people who know their forensic pathology, which I will discuss tomorrow.

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February 5, 2015 | Permalink | Comments (18) | TrackBack (0)

Wednesday, February 4, 2015

The Autopsy Posts, Take 2: Focal Hemorrhaging of the Strap Muscles & Strangulation

This is my second post about autopsies following my first post yesterday. As with my first post, this post will deal with how a medical examiner determines that a victim died as the result of strangulation. Once again I will be looking at the autopsy report for Hae Min Lee. In relevant part, it states:

Dissection of the neck revealed multiple focal hemorrhages on the superior (proximal) segments of the strap muscles involving the sternohyoid and the sternothyroid muscles....

I. Strangulation

A. Hemorrhage at the superior segment of the neck strap muscles. 

So, how do these findings support a conclusion that the victim died as the result of strangulation?

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February 4, 2015 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 3, 2015

The Autopsy Posts: Manual Strangulation & Petechial Hemorrhaging in the Face/Eyes

Today, Rabia Chaudry released the autopsy report for Hae Min Lee, whose death was the subject of the Serial Podcast. Obviously, this is pretty gruesome/disturbing material, so read it at your own risk.

So, what does the autopsy tell us about Lee's death? What does any autopsy tell us about anyone's death? What is the history of the autopsy? This will be a first in a series of posts about autopsies in general and this specific autopsy. Let's start with one particular entry on Lee's autopsy report:

I. Strangulation....

E. Petechial hemorrhage of the lower left palpebral conjunctiva

So, what is a "[p]etechial hemorrhage of the lower left palpebral conjunctiva," and how did it tend to support a finding that Lee was strangled?

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February 3, 2015 | Permalink | Comments (1) | TrackBack (0)

Monday, February 2, 2015

Second Lividity/Dual Lividity & Moving a Body During Partially Fixed Lividity

This is the third in a series of posts about livor mortis/fixed lividity (first postsecond post). Livor mortis is the settling of blood in the lower (dependent) portion of the body, and fixed lividity is the point at which the blood becomes permanently settled. In my second post, I made two claims: (1) it is unlikely that a body could be buried on its side about five hours after death and exhibit solely anterior (frontal) lividity with no lateral (side) lividity; and (2) it is unlikely that a body could be on its side for about five hours after death and exhibit solely anterior (frontal) lividity with no lateral (side) lividity.

After receiving some correspondence from experts, I now feel even better about my first claim. I noted in my prior posts that it usually takes a minimum of six to eight hours for lividity to become fixed and that it sometimes takes up to twelve hours or more. Factors that could lead to lividity becoming fixed earlier would be hotter temperatures and/or victims with certain pre-existing medical conditions. Absent either of those conditions, it would be extremely rare for lividity to become completely fixed in under six hours. In colder temperatures, fixed lividity in under six hours would be even less likely.

I haven't, however, been able to get anything in the way of corroboration (or contradiction) with regard to my second claim. I'm clear on one thing: If a body were on its side for about five hours after death before being put face down, there absolutely could be some lateral (side) lividity in addition to anterior (frontal) lividity. This is known as a few things: a "mixed" pattern of lividity, second lividity, or dual lividity. 

This post will serve two purposes. First, it's a call for information from any readers with expertise in forensic pathology or related fields. If you have such expertise, I would love to know how likely it is that there would be a "mixed" pattern of lividity in such a case, assuming that this can be quantified to some extent (e.g., very likely, likely, possible, not very likely, etc.). Second, it contains various pieces of information that I've found about moving a body when lividity has become partially fixed.

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February 2, 2015 | Permalink | Comments (0) | TrackBack (0)

Friday, January 30, 2015

Fixed Lividity vs. a Mixed Pattern of Lividity & the Positioning of a Body After Death

Livor mortis, according to the Assistant State Medical Examiner, "is where there is a gravitational settling of the blood in the dependent portions of the body. In other words, if the body when it dies is lying on its back you will see the liver which is a sort of purple/reddish discoloration of the skin on the posterior portion." Hughes v. State, 437 A.2d 559, 565 n.4 (Del. 1981).

In this post, I will follow up on my post from yesterday on fixed lividity/livor mortis by discussing some additional cases and distinguishing "fixed lividity" from a "mixed" pattern of lividity.

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January 30, 2015 | Permalink | Comments (2) | TrackBack (0)

Thursday, January 29, 2015

Fixed Lividity/Livor Mortis & What It Means About a Body's Burial

I've been getting some questions about the concept of fixed lividity/livor mortis so I thought that I'd do a quick introductory post on the matter.

When blood settles to the bottom, it stays there. After it's there for a long time, the pattern becomes "fixed," i.e., when you press your finger into the skin, the skin doesn't blanch much. Try this on your hand right now...push your finger deep into the skin. The skin will blanch (turn white) as the blood moves away from the pressure. If the lividity pattern is fixed or close to fixed, the blood won't want to move, so the skin won't blanch much. Whether or not the pattern is fixed helps us to determine how long you've been dead.

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January 29, 2015 | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 27, 2015

Liar, Liar: Will Kansas Now Allow For Polygraph Evidence to be Admitted?

According to State v. Shively, 999 P.2d 952, 957 (Kan. 2000).

In most states polygraph evidence is either per se inadmissible in trials or is only admissible by stipulation, see United States v. Scheffer, 523 U.S. 303, 311, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998), and State v. Porter, 241 Conn. 57, 124-25, 698 A.2d 739 (1997), cert. denied 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998). Polygraph evidence has long been inadmissible in criminal trials in Kansas absent a stipulation by the parties. See State v. Lassley, 218 Kan. 758, 760, 545 P.2d 383 (1976).

But is that all about to change in the Sunflower State?

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January 27, 2015 | Permalink | Comments (0) | TrackBack (0)

Monday, January 26, 2015

Police Body Camera Videos as Evidence

The Washington Post published this interesting piece yesterday about the use of police body camera video as evidence in court, a phenomenon that will become increasingly common as more and more police agencies adopt body cameras.

Overall this appears to be a positive development, but there will be growing pains as departments develop protocols to preserve and produce camera footage during discovery.  For an earlier post noting the growing pains with respect to open records request, see here.

Indeed, the Post article quotes the DC US Attorney, stating:

“Our biggest concern with respect to this issue is that in order for body cameras to work effectively in the courtroom, it will be imperative for the city to devote significant resources to effectively preserve, process and produce the extraordinary volume of recordings generated by the cameras so that the government can uphold its obligations to provide these materials to criminal defendants.”

Lots of evidentiary implications as well. 

For example, doesn't the conspicuous  presence of a police body camera make a citizen's otherwise spontaneous utterance more likely to be deemed "testimonial" and therefore inadmissible under the Confrontation Clause?

 

January 26, 2015 | Permalink | Comments (0) | TrackBack (0)

Ineffective Assistance of Counsel & the Suspended/Disbarred Attorney

Pursuant to the Supreme Court's opinion in Strickland v. Washington, a defendant proves an ineffective assistance of counsel claim by establishing (1) that counsel’s performance "fell below an objective standard of reasonableness" as measured by "prevailing professional norms;" and (2) prejudice, i.e., "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Under Strickland's first prong,

a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

It is well established that the disbarment or suspension of an attorney after he represents a client does not per se lead to a finding of unreasonableness under Strickland's first prong unless the disbarment or suspension was causally related to his representation of the client. See, e.g., Padgett v. United States, 302 F.Supp.2d 593, 603 (D.S.C. 2004). But, is the presumption of reasonableness  removed or maybe even flipped if a client's attorney is subsequently suspended or disbarred based upon relatively contemporaneous misconduct? Let's take a look at the opinion of the Ninth Circuit in United States v. Soto-Lopez, 475 Fed.Appx. 144 (9th Cir. 2012).

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January 26, 2015 | Permalink | Comments (2) | TrackBack (0)

Friday, January 23, 2015

Should Judges Participate in Plea Negotiations?: Comparing Judge Rakoff's Proposal to My Own

Today, the New York Times published an op-ed by JaneAnne Murray, a Practitioner in Residence at the University of Minnesota School of Law, entitled, "Why Adnan Syed of ‘Serial’ Should Have Pleaded Guilty." I can't say that I agree that Adnan should have pleaded guilty, but I do agree with the plea bargaining proposal mentioned in the op-ed. In fact, it's the same argument I made in back in 2013 in my article, Anchors Away: Why the Anchoring Effect Suggests that Judges should be able to Participate in Plea Discussions, 54 B.C. L. Rev. 1667 (2013).

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January 23, 2015 | Permalink | Comments (0) | TrackBack (0)

Thursday, January 22, 2015

On Your Side?: Delaware Court Deems Report by Nationwide Expert Inadmissible in Car Accident Case

Delaware Rule of Evidence 702 provides that

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Sometimes, a court precludes an expert from testifying because he's not qualified to offer opinions on a matter. For instance, a court would not allow an attorney or even a dermatologist to offer opinion testimony about the cause of a victim's death. 

Other times, a court precludes an expert from testifying because anyone would be qualified to offer opinions about a matter. This is what happened in the recent case of Knott v. Covert, 2015 WL 196730 (Del.Supr. 2015).

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January 22, 2015 | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 21, 2015

Time Sensitive: Court of Appeals of Ohio Affirms Admission of Excited Utterance in Domestic Violence Case

Similar to its federal counterpart, Ohio Rule of Evidence 803(2) provides an exception to the rule against hearsay for

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

Typically, this "excited utterance" exception is satisfied through evidence that a specific period of time passed between the startling event/condition and the declarant's statement (e.g., the declarant called or sent a text message 5 minutes after seeing a shooting). But, as the recent opinion of the Court of Appeals of Ohio, Eighth District, noted in its recent opinion in Cleveland v. Amoroso, 2015 WL 178418 (Ohio App. 8th 2015), circumstantial evidence of the passage of time often suffices.

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January 21, 2015 | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 20, 2015

The Serial Podcast, One Last Thing: Reassessing Adnan's Shot at a New Trial Based on Asia McClain

[See Updates Below]

I've posted 31 entries Sarah Koenig's Serial Podcast, which deals with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee, on January 13, 1999. These posts are collected in my Legal Companion to the Serial Podcast. I said my last post would be my final post on the case until the court opinion granting Adnan a new trial. But then, I learned that Asia McClain signed an affidavit, in which she claimed that Kevin Urick (one of the prosecutors at Adnan's trials in 1999 and 2000) misled her into not testifying at Adnan's postconviction proceeding (and, by implication, mischaracterized what she said to him when he testified at the proceeding). This affidavit is mentioned in an article/interview today in The Blaze. It is also the basis for Adnan's Supplement to Application for Leave to Appeal the Denial of Post-Conviction Relief and Request for Remand (Download Supplement to Application for Leave to Appeal). This affidavit could potentially have a significant impact on Adnan's chances for relief at both the state and federal levels, so I thought I'd do one final post to update my prior post.

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January 20, 2015 | Permalink | Comments (10) | TrackBack (0)

Pass Interference: AZ Court Grants New Trial Based on Prosecutorial Interference w/Defense Witness Testimony Through No Testimony Clauses

The Compulsory Process Clause of the Sixth Amendment provides that

In all criminal prosecutions, the accused shall enjoy the right....to have compulsory process for obtaining witnesses in his favor....

So, let's say that the prosecution enters into plea agreements with two potential defense witnesses. Furthermore,

Both plea agreements included the following "special term": "Defendant agrees that he/she has no exculpatory information as to any codefendant(s)." Each agreement also provided that the defendant waived all double jeopardy and statute of limitations claims, so that "[i]f the defendant fail[ed] to comply with any of the provisions or conditions of th[e] plea agreement at any time before or after sentencing," the agreement would "become void," and the state would be "free to prosecute the defendant for all charges."

Would such provisions violate the defendant's right to compulsory process? In an opinion of first impression, the Court of Appeals of Arizona, Division 2, answered this question in the affirmative in State v. Sanchez-Equihua, 326 P.3d 321 (Ariz.App. Div. 2 2014).

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January 20, 2015 | Permalink | Comments (0) | TrackBack (0)

Monday, January 19, 2015

Battle Creek Battle: Court of Appeals of Michigan Reverses Murder Conviction Based on Prejudicial Gang Testimony by Expert

According to an article in the Battle Creek Enquirer,

A Battle Creek murder conviction, overturned last month, will be appealed.

Calhoun County Prosecutor David Gilbert said Friday his office is preparing an application to appeal the case of Kaleb Hampton to the Michigan Supreme Court.

Why was the conviction reversed? According to the article.

in a 16-page opinion in December a three-judge panel of the Michigan Court of Appeals agreed that testimony about gang membership and Hampton’s alleged membership tainted the jury and exceeded what was permissible.

After reading the opinion of the Court of Appeals, I think that the reversal of Hampton's conviction will stand.

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January 19, 2015 | Permalink | Comments (0) | TrackBack (0)

Friday, January 16, 2015

The Serial Podcast, Final Post: Why I'm Now Convinced That Adnan Will Get a New Trial

I've posted 30 entries Sarah Koenig's Serial Podcast, which deals with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee, on January 13, 1999. These posts are collected in my Legal Companion to the Serial Podcast. This will be my final post about the case until the court opinion granting him a new trial. Yes, that's right. I'm now convinced that Adnan will be released from prison. Maybe not today, maybe not tomorrow, maybe not soon, but (possibly) for the rest of his life.

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January 16, 2015 | Permalink | Comments (29) | TrackBack (0)

Wednesday, January 14, 2015

The Serial Podcast: What I Think Adnan's Attorney Told Him About Asia & How it Could Lead to a New Trial

I've posted 29 entries Sarah Koenig's Serial Podcast, which deals with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee, on January 13, 1999. These posts are collected in my Legal Companion to the Serial Podcast. One of the issues that Adnan raised in his Petition for Post-Conviction Relief was that his trial counsel, Cristina Gutierrez, was ineffective in failing to contact/call Asia McClain as an alibi witness. Asia wrote Adnan two letters indicating that she saw Adnan at the Woodlawn Library of January 13, 1999. According to Adnan, he gave these letters to Gutierrez but was later told by her that "they didn’t check out (Asia had the wrong date or something)." In this post, I will explain why I think that this is exactly what Adnan was told and how it could lead to him getting a new trial.

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January 14, 2015 | Permalink | Comments (12) | TrackBack (0)

Tuesday, January 13, 2015

Engaging the Entire Class: Strategies for Enhancing Participation and Inclusion in Law School Classroom Learning

From the Institute for Law teaching:

Engaging the Entire Class:
Strategies for Enhancing Participation and Inclusion in Law School Classroom Learning

Register and pay online
(through UCLA website)

"Engaging the Entire Class: Strategies for Enhancing Participation and Inclusion in Law School Classroom Learning" is a one-day conference being presented by the UCLA School of Law and the Institute for Law Teaching and Learning (ILTL) in Los Angeles, California on February 28, 2015.

Conference Structure

The conference will include an opening and closing led by ILTL Co-Directors and Consultants, and five workshop sessions. Each workshop session will be presented by a teacher featured in What the Best Law Teachers Do.

  
 

Workshop presenters include:

By the end of the conference, participants will have concrete ideas for enhancing participation and inclusion in law school classrooms to take back to their students, colleagues, and institutions.

Who Should Attend

This conference is for all law faculty (full-time and adjunct) who want to learn about enhancing participation and inclusion in law school.

Conference Schedule

All Sessions will take place at the UCLA School of Law on Saturday, February 28, 2015.

  • 8:00-8:40 a.m.: Registration and Continental Breakfast
  • 8:40-9:00 a.m.: Welcome and Opening
  • 9:00-10:00 a.m.: Workshop 1
  • 10:00-10:20 a.m.: Break
  • 10:20-11:20 a.m.: Workshop 2
  • 11:20-11:40 a.m.: Break
  • 11:40 a.m.-12:40 p.m.: Workshop 3
  • 12:40-1:30 p.m.: Lunch
  • 1:30-2:30 p.m.: Workshop 4
  • 2:30-2:50 p.m.: Break
  • 2:50-3:50 p.m.: Workshop 5
  • 3:50-4:10 p.m.: Break
  • 4:10-4:30 p.m.: Closing
  • 4:30 p.m.: Adjourn

Registration Fee

Through February 12, 2015

  • $250 - General Attendance
  • $100 - Gonzaga University, University of Arkansas Little Rock, or Washburn University full/part-time faculty
  • $0 - UCLA Law full/part-time faculty (registration required)

After February 12, 2015

  • Registration is on-site only
  • $300 - General Attendance
  • $300 - Gonzaga University, University of Arkansas Little Rock, or Washburn University full/part-time faculty
  • $0 - UCLA Law full/part-time faculty (registration required)

Registration fee includes:

  • all materials, and
  • breakfast, lunch, and snacks.

Location

Conference activities will be held at UCLA School of Law, 385 Charles E. Young Drive East, 1242 Law Building, Los Angeles, California 90095 (Directions and Maps).

Transportation

Participants are responsible for their own travel arrangements to the conference.

Lodging

A block of rooms has been reserved until January 25, 2015 for the nights of February 27 and February 28 at:

  • UCLA Guest House
    330 Charles E. Young Dr. East
    Los Angeles, CA 90095
    $177.00: queen bed
    $182.00: queen bed with kitchenette
    $182.00: queen bed with twin bed

Make reservations by calling the hotel directly at (310) 825-2923 and mentioning that you are participating in the UCLA School of Law's "Institute for Law Teaching and Learning Conference at UCLA".

Please note: UCLA Guest House offers complimentary continental breakfast each morning but is not a full-food service hotel - meaning that they do not provide the service of ordering food via room service, and there is not a lobby restaurant. There are, however, many restaurants in Westwood Village, which is less than a 15 minute walk from the hotel. Also: On-site parking at the Guest House is free, but limited, on a first-come, first-served basis. If the hotel parking lot is full, the Guest House sells parking passes for the closest UCLA parking structure number 3.

Register and pay online
(through UCLA website)

January 13, 2015 | Permalink | Comments (1) | TrackBack (0)

Dropped Call: IL Court Finds Brady Violation Based on Failure to Disclose Key Evidence About Cell Phone

In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held the the government violates the Due Process Clause by failing to turn over material exculpatory evidence to the defendant in a timely fashion. The Court defined "material exculpatory evidence" as evidence that creates a reasonable probability of a different outcome at trial. Importantly, the Court held that there is a Brady violation even if the failure to timely disclose this evidence was not done in bad faith. It was this last point that allowed an Illinois court to reverse a man's convictions for possessing between 2,000 and 5,000 grams of marijuana.

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January 13, 2015 | Permalink | Comments (0) | TrackBack (0)