Accused of Stealing a Backpack, High School Student Jailed for Nearly Three Years Without Trial
Author: Juan Gonzalez and Amy Goodman on Democracy Now (October 1, 2014)
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We look at the incredible story of how a 16-year-old high school sophomore from the Bronx ended up spending nearly three years locked up at the Rikers jail in New York City after he says he was falsely accused of stealing a backpack. Kalief Browder never pleaded guilty and was never convicted. Browder maintained his innocence and requested a trial, but was only offered plea deals while the trial was repeatedly delayed. Near the end of his time in jail, the judge offered to sentence him to time served if he entered a guilty plea, and warned him he could face 15 years in prison if he was convicted. But Browder still refused to accept the deal, and was only released when the case was dismissed. During this time, Browder spent nearly 800 days in solitary confinement, a juvenile imprisonment practice that the New York Department of Corrections has now banned. We are joined by reporter and author Jennifer Gonnerman, who recounts Browder’s story in the current issue of The New Yorker. We also speak with Browder’s current attorney, Paul Prestia, who has filed a lawsuit against the City of New York, the New York City Police Department, the Bronx District Attorney, and the Department of Corrections, on Browder’s behalf.
TRANSCRIPT
This is a rush transcript. Copy may not be in its final form.
JUAN GONZÁLEZ: Last week, the New York City Department of Corrections announced it will stop using solitary confinement to punish adolescents held in its troubled Rikers Island jail complex, the second-largest jail system in the country. But a federal prosecutor said the city’s reforms were moving too slowly to address a, quote, "culture of violence," and warned he may file a civil lawsuit over conditions for teenagers held in Rikers. New York is one of only two states nationwide that automatically charge 16- and 17-year-olds as adults.
AMY GOODMAN: Well, today we look at the incredible story of a 16-year-old high school sophomore who was jailed at Rikers Island for nearly three years after he refused to plead guilty to a crime he said he did not commit. It was May 15, 2010, when Kalief Browder was walking home from a party with his friends in the Bronx and was stopped by police based on a tip that he had robbed someone weeks earlier. He told HuffPost Live what happened next.
KALIEF BROWDER: They had searched me, and the guy actually said—at first he said I robbed him. I didn’t have anything on me. And that’s when—
MARC LAMONT HILL: When you say "nothing," you mean no weapon and none of his property.
KALIEF BROWDER: No weapon, no money, anything he said that I allegedly robbed him for. So the guy actually changed up his story and said that I actually tried to rob him. But then another police officer came, and they said that I robbed him two weeks prior. And then they said, "We’re going to take you to the precinct, and most likely we’re going to let you go home." But then, I never went home.
JUAN GONZÁLEZ: Kalief Browder did not go home for 33 months, even though he was never convicted. For nearly 800 days of that time, he was held in solitary confinement. He maintained his innocence and requested a trial, but was only offered plea deals while the trial was repeatedly delayed. Near the end of his time in jail, the judge offered to sentence him to time served if he entered a guilty plea, and told him he could face 15 years in prison if he was convicted. He refused to accept the deal and was only released when the case was dismissed.
AMY GOODMAN: Well, for more, we’re joined by Jennifer Gonnerman, reporter, author, contributing editor at New York magazine, and contributing writer to The New Yorker magazine. She recounts Kalief Browder’s story in the current issue of The New Yorker in a piece headlined, "Before the Law: A boy was accused of taking a backpack. The courts took the next three years of his life." Jennifer Gonnerman has long chronicled problems with the criminal justice system. Her book, Life on the Outside: The Prison Odyssey of Elaine Bartlett, tells the story of a woman who spent 16 years in prison for a first-time offense under New York’s Rockefeller drug laws.
And we’re joined by Kalief Browder’s current attorney, Paul Prestia, who has filed a lawsuit against the city, the NYPD—the New York Police Department—Bronx district attorney and the Department of Corrections on Browder’s behalf. Prestia is also a former assistant prosecutor in Brooklyn.
Jennifer Gonnerman, Paul Prestia, welcome to Democracy Now! Jennifer, tell us Kalief’s story.
JENNIFER GONNERMAN: Well, you did a pretty good job of setting it up, and it was terrific that we got to hear Kalief’s voice describing what happened. But just to recap a bit, May 2010, he’s coming home from a party late one night in the Bronx, walking with his friend down the street, and a police car pulls up. There’s somebody in the back seat who points him out, saying, you know—accusing him of a robbery that had happened one or two weeks earlier. He says, "I didn’t do it." They take—
AMY GOODMAN: Well, first, he actually says, "I didn’t steal anything tonight. Look at my pockets."
JENNIFER GONNERMAN: Right, right.
AMY GOODMAN: And they went back and checked with the guy, and they said, "Oh, oh, this happened a couple weeks ago."
JENNIFER GONNERMAN: Right, so there was, from the beginning, it sounded like, at least the way Kalief tells it, some confusion about the dates, which is significant. And he goes into the precinct thinking, "I’m just"—and he’s in the holding cell, thinking, "I’m just going to be here for a couple hours. We’ll clear up this misunderstanding." And, as you said, he ended up doing almost three years on Rikers Island, for many reasons, but the system sort of completely failed him in every possible way. There was no speedy trial. And during that time, he was locked up in the adolescent jail on Rikers Island.
AMY GOODMAN: Explain Rikers.
JENNIFER GONNERMAN: Sure, sure. You know, when we talk about Rikers Island, it’s a jail complex. There’s 10 different jails there. And I think a lot of people get confused between prison and jail. A prison is where you go after you’ve been convicted and sentenced. A jail is where you go while you’re waiting for your case to go through the court. On Rikers Island, 85 percent of the people locked up there are legally innocent. They have not been convicted of a crime yet, and they may never be convicted of a crime. They’re there waiting to find out whether they’re guilty or innocent and what their fate is going to be. And so, Kalief was one of those people. So, despite the fact that he was not convicted of a crime, he endured the punishment anyway.
JUAN GONZÁLEZ: But he ended up basically in Rikers because he couldn’t make bail, right? Because it was a relatively minor charge, the judge ended up giving him bail time but releasing his co-defendant, as well. Could you explain why that happened?
JENNIFER GONNERMAN: Yeah, sure. So, from the beginning of the case, there were two co-defendants. And Kalief’s co-defendant, the other friend, was released from day one, and so he got to wait at home while the case went through the system. And Kalief’s bail was set at $3,000 because he was already on probation in a prior case. So, he had a mark against him, and that mark sort of chased him for the next three years. Ultimately, they filed a violation of probation against him, which meant that he was remanded. So even though the bail was $3,000, it was out of the reach of his family. Even if they had spent time fundraising from everybody they knew, ultimately it didn’t matter because he was remanded. There was no bail set for three years. So he was held without bail while this case sort of crawled through the court system.
PAUL PRESTIA: Well, and just to clarify—
JUAN GONZÁLEZ: Yes, Paul Prestia, yes?
PAUL PRESTIA: Just to clarify on that prior conviction, that was a youthful offender adjudication, so that, theoretically, was sealed from his record. So, while he was convicted, he was 16 at the time, and that conviction was sealed from his record—not something that should have been used against him, but perhaps an anomaly because he was on probation at the same time.
In any event, as Jen pointed out—I would have titled her piece—and it was an excellent piece, obviously—I spoke with her in depth while she was writing the article. I would have titled it "The Criminal Justice System Deconstructed." And I can go through all of those aspects with you, but I know that—
JUAN GONZÁLEZ: Well, I wanted to ask you particularly about this whole issue of people being held in jail, in essence, to pressure them to plead out, because we often see the criminal justice system on television as these trials, these dramatic trials, but I’ve always felt that the essence of the criminal justice system in America, 95 percent of the cases, are the plea bargains.
PAUL PRESTIA: Absolutely.
JUAN GONZÁLEZ: People being pressured not to go to trial, but to plead guilty. And if you could talk about how that’s used time and—over and over again to get defendants to plead out?
PAUL PRESTIA: Well, I don’t know if it’s a tactic per se. I don’t know if it’s something intentional per se, that the District Attorney’s Office—a technique that the District Attorney’s Office uses to—
AMY GOODMAN: And you were a prosecutor—
PAUL PRESTIA: I was.
AMY GOODMAN: —so you probably did it all the time.
PAUL PRESTIA: I’m familiar with all of these things, Amy. I know how it goes, for sure. But I think it’s understood that if someone’s—it’s just common sense. If someone’s in jail and they’re desperate to get out, they’re more inclined to take a plea. It’s just human nature to do anything, to find any way to get out of that jail, especially if you’ve spent some time in solitary.
AMY GOODMAN: That’s what is so amazing about Kalief, when the Bronx judge is replaced by a Brooklyn judge, and she begins to see what he’s been through and says, "You will be out today. After two-and-a-half years, just plea. You face 15 years in jail if you go to trial," and he said, "No." I mean, all the other prisoners said, "Are you crazy?" to him. This is a kid. He said, "I’m innocent. I’m not going to say I was guilty."
JENNIFER GONNERMAN: I mean, it’s incredible. Obviously, the longer you’re incarcerated in jail, the greater the pressure to plead, right? And for somebody like Kalief, who was in one of the worst jails—he was in the adolescent jail in Rikers Island, which the U.S. Attorney’s Office recently put out a blistering report about the horrific conditions there. On top of that, he spent most of his time in solitary confinement. So it just ratchets up the pressure more and more and more. You know, he could not have been under greater pressure to plead. And yet, despite all that, he just said, that day, to the judge—the judge, you know, made that offer, and he said, "I’m all right. I didn’t do it. I’m all right." And the judge says, "You’re all right?" I mean, clearly, he was not all right. But he said, "I’m all right," like, "I got this. I could do it." And she said, "You’re all right?" And he said, "I want to go to trial," the same thing he had been saying for three years. But trials rarely happen in the Bronx. And that’s sort of one of the sort of dirty secrets of the whole system.
JUAN GONZÁLEZ: To me, one of the most stunning parts of your article is when you list from the court files all of the continuances that occurred in this trial, while he’s waiting, demanding to go to trial. You have from the court file: "June 23, 2011: People not ready, request 1 week." But that one week turns into—looks like three months: "August 24, 2011: People not ready, request 1 day." Then, "November 4, 2011: People not ready, prosecutor on trial, request 2 weeks." Then, "December 2, 2011: Prosecutor on trial, request January 3rd." So each time it was the prosecutors who were delaying the start of a trial.
JENNIFER GONNERMAN: That’s true. And then it would—once they asked for a week or two weeks, it would turn into a matter of scheduling. Everybody looks at their calendars, and maybe the prosecutor can’t do it, or maybe the judge can’t do it, or maybe the defense attorney can’t. And it became a sort of logistics game at every court date. But, you know, one or two weeks turning into six weeks, you know, for somebody like Kalief, that’s six more weeks that he’s got to wait.
JUAN GONZÁLEZ: And what about the role of the prior attorney? Because you weren’t there from the beginning, Paul Prestia.
PAUL PRESTIA: No, I wasn’t. I’ll make that clear.
JUAN GONZÁLEZ: His initial—right, right, his initial attorney. And you also tried to find out what that initial attorney, who was appointed by the court, did or did not do.
JENNIFER GONNERMAN: Right, right, right. He was a court-appointed lawyer—it’s called 18-B lawyer in New York City, but a court-appointed lawyer, paid $75 an hour to represent Kalief. And, you know, it’s a system that has been criticized over the years, because in order to make a living, you’ve got to have a lot of cases. And you’re sort of—those lawyers are sort of running around the city all the time. And, you know, so he never visited his client on Rikers Island, which is—
AMY GOODMAN: Never visited his—that means he never visited his client, because he was on Rikers Island the whole time.
JENNIFER GONNERMAN: That’s correct. And, you know, as sad as it is, it’s not that uncommon for 18-B lawyers never to make the trip to Rikers Island, because it’s like a half a day, you know, nightmare. You know, they have video conferences in the Bronx, where you can talk to your client face to face. And, you know, I asked him had he ever done that; he said, "I’m pretty sure I did." And then I asked Kalief, did he remember having a videoconference with his lawyer, and he said, "No." So, you know, I don’t know. Paul could probably speak better to this, but—
AMY GOODMAN: What about a speedy trial? I mean, there might be a lot of people watching this around the country and around the world now saying, "Wasn’t a law broken here, that this kid, from when he was 16 years old, was in prison, two of those years in solitary?"
JENNIFER GONNERMAN: I know. You can’t even wrap your brain around it, it’s so crazy, the whole story. So, in New York, you know—so, the Sixth Amendment guarantees the right to a speedy trial. And in New York, we have something called the "ready rule." So, when these prosecutors, as Juan was reading off the list, say, you know, "We’re not ready, but we can be ready in a week"—so that’s one week charged against them. Yet the court—the next court date is set one month, two months, three months away. So that only counts as one week against the six-month deadline that we have in New York. So, even though he was held for three years, it’s not like there’s three—the three years count against him. It’s every week or two weeks or one day that the prosecutors ask for. So time is moving in two separate ways. There’s sort of the world of the courthouse, where time is moving at a glacial pace, and then there’s Kalief’s life, where every day feels like 10 because he’s trapped in a box in Rikers Island solitary.
PAUL PRESTIA: It’s a figurative clock that stops and starts throughout the case. But, agreed, with Jennifer’s legal analysis, the adjournments were appalling and should have been challenged at some point, in my opinion, by the attorney—
AMY GOODMAN: For a speedy trial.
PAUL PRESTIA: —and should not have been allowed to persist by the judges who oversaw the case.
AMY GOODMAN: Let’s bring Kalief’s voice back into this conversation. Kalief Browder told HuffPost Live’s Marc Lamont Hill that while he was in solitary confinement at Rikers, the guards often refused to give him his meals.
KALIEF BROWDER: If you say anything that could tick them off any type of way, some of them, which is a lot of them, what they do is they starve you. They won’t feed you. And it’s already hard in there, because if you get the three trays that you get every day, you’re still hungry, because I guess that’s part of the punishment. So, if they starve you one tray, that could really make an impact on you. And—
MARC LAMONT HILL: How much were you starved?
KALIEF BROWDER: I was starved a lot. I can’t even—I can’t even count.
AMY GOODMAN: Kalief Browder went on to say he was once starved four times in a row—no breakfast, lunch, dinner or breakfast again. Talk about the conditions of solitary confinement and how a kid, a teenager, would end up in solitary confinement for two years.
JENNIFER GONNERMAN: Sure. I mean, Kalief’s talking about being hungry in jail. And even though he’s talking about one instance, in fact, it was a much sort of broader problem. So, when you’re in solitary confinement, you get three meals a day coming through a slot in the door, because you’re not leaving your cell. And for teenagers locked in solitary—and this is not just Kalief, this is other teenagers have talked about this—there’s not enough food. And once you’re in solitary—you know, when you’re in general population, the regular jail, if you’re not getting enough food, you can maybe get some money in your commissary account and get some snacks and fill up your stomach.
AMY GOODMAN: And his mom did put money in commissary.
JENNIFER GONNERMAN: Yeah, his mother did look out for him and visited him every week. But here he is, stuck in solitary. He can’t supplement his meal. He’s reduced to begging officers through the cell door: "Can I get an extra piece of bread?" Sometimes they give it, sometimes they laugh at him. And, you know, basically, there’s a 12-hour stretch from dinner to breakfast where all these teenagers are drinking water out of the sink to fill their stomachs. And, you know, when he told me this, at first I thought, well, maybe it’s just him, or maybe it’s a one-off thing. You know, he was talking about meals being skipped. But I’m saying it’s a broader sort of problem. But there was a recent report that came out from Bronx Defenders organization, where they talked about many of their clients with similar complaints. And, you know, for a moment, I thought, "Did we just pick up this kid off the street in the Bronx and drop him in Guantánamo?" I mean, this is the kind of thing that, you know, that you guys cover all the time. It just—it seemed, frankly, almost unbelievable.
JUAN GONZÁLEZ: What about the whole issue of his education? I mean, here was a 16-year-old sophomore.
JENNIFER GONNERMAN: Right.
JUAN GONZÁLEZ: What kind of educational support does Rikers give to 16- and 17-year-olds that it jails?
JENNIFER GONNERMAN: You know, the adolescents in the regular jail were supposed to be taken every day to class, to a school that they have there. And they’re taught by Department of Education—you know, it’s a Department of Education-run school. But once a kid was put into solitary, they weren’t being taken out for school anymore. And what they would do is slip a worksheet under the door in the morning, an officer would, or a few, and, "Finish this by Wednesday. Finish this by Thursday." So, Kalief’s sitting there. He’s got nothing to do. He thinks, "Well, I might as well do something. I might as well try to do this." You know, so he’s kind of trying to teach himself how to be a better writer, math, etc. And then Thursday comes—you know, time moving at this incredibly slow pace—and nobody comes to pick up the work. I mean, that didn’t always happen, but it happened often enough. And, I mean, it’s just—you know, it’s a small detail, but it just shows the utter apathy, you know, and lack of concern for everybody in there. So he’s banging on the door. "Where is the correction officer to pick up the work?" You know, he’s trying to improve himself in this absolutely nightmare of a place.
PAUL PRESTIA: I don’t even think "apathy" is the word. It’s just a reckless disregard for any of those kids who sat in solitary. It’s sad, really.
JUAN GONZÁLEZ: And, Paul Prestia, the reaction of the prosecutors in the case, and especially when you got involved? What was—didn’t anybody say, "Hey, this is a kid who’s been in jail for close to three years and still has not been brought to trial"?
PAUL PRESTIA: I’m sorry about—I missed your question. What was—
JUAN GONZÁLEZ: The reaction of the prosecutors that you were dealing with?
PAUL PRESTIA: Well, I didn’t actually deal with the prosecutors, because I took over the case after it got just missed.
JUAN GONZÁLEZ: Oh, after it got dismissed.
PAUL PRESTIA: So, after it got dismissed, Kalief came to see me, and he retained me to represent him in the civil case against the state of New York—against the City of New York, I’m sorry.
AMY GOODMAN: In August, the U.S. attorney for the Southern District of New York issued a report that sharply criticized Rikers jail officials for routinely using extreme violence against adolescent prisoners, often in areas without video surveillance cameras. It also condemned the excessive use of solitary confinement for teenagers held there. This is the U.S. attorney, Preet Bharara.
PREET BHARARA: Rikers Island is a broken institution for adolescents. And a broken institution will produce broken people, especially when they are young and fragile with mental illness, as so many of them are. The adolescents in Rikers are walled off from the public. But they are not walled off from the Constitution. Indeed, most of these young men are pretrial detainees, presumed innocent until proven guilty. But whether they are pretrial or convicted, they are entitled to be detained safely and in accordance with their constitutional rights, not consigned to a corrections crucible that seems more inspired by Lord of the Flies than any legitimate philosophy of humane detention.
AMY GOODMAN: U.S. Attorney Preet Bharara, speaking in August. Last week, he said New York City Mayor Bill de Blasio had failed to move quickly on reforms called for in the report, and warned his office was ready to file a civil rights lawsuit against the city to force changes. Preet Bharara could conceivably be a possibility for attorney general. Jen Gonnerman?
JENNIFER GONNERMAN: You know, this report came out in the course of me reporting this story. It came out in August. And back in April, when I was first interviewing Kalief—I think maybe the very first time I met him—he told me this incredible story that had happened early in his time at Rikers, a few days in, of, late at night, there had been some sort of fight in the dorm. The officers weren’t sure who—
AMY GOODMAN: There were 50 kids in the dorm.
JENNIFER GONNERMAN: Right, 50 kids in the dorm.
AMY GOODMAN: In one room.
JENNIFER GONNERMAN: Officers weren’t sure who was responsible, so they grabbed whoever they could find, threw them in the hall and, you know, their faces to the wall, and just started kind of trying to figure out who did it and yelling at them and smacking them in the face each time, and really beating some of the kids up. And so, Kalief tells me this incredible story of, you know, leaky noses and sort of swollen eyes. And at the end, the officers say, "OK, you know, we can either take you to the clinic, which means—and if you tell the folks who work at the clinic, the civilian medical staff, what happened, you’re going to end up in solitary. Or you can just go back to bed and pretend nothing happened." So, Kalief and the other guys say, "OK, we’ll go back to bed."
He tells me this incredible story in April. I think, that is—I didn’t doubt him, but I just thought, "Is that like a one-time thing? What is going on on Rikers Island?" I mean, I knew the conditions were very bad in the adolescent jail, but that was a level of brutality that was pretty, you know, hard to wrap your mind around. Then, come August, this report comes out, and I would encourage anybody who’s interested to read this report, because even though government reports are sometimes a little dry, this one is incredible in the level of graphic detail and the way it’s written. It just—
PAUL PRESTIA: And it’s specific to the years 2011 and 2013—
JENNIFER GONNERMAN: Right.
PAUL PRESTIA: —coincidentally, when Kalief was incarcerated and was in solitary confinement.
JENNIFER GONNERMAN: And this story I just described, you know, is told again and again in this report. It certainly wasn’t a one-time occurrence.
PAUL PRESTIA: And it’s clear that—listen, I know that the corrections officers, their jobs can be difficult. That goes without saying. But to create your own code of justice, which is what happens in these jails, and to just mete out punishments to these kids, these young men, who are—as Jennifer pointed out, they’re innocent. They’re awaiting a trial. They’re waiting for their case to be heard. But yet, in those jails—and, I would argue, in my opinion, in those prosecutors’ minds—presumed guilty, a lot of the time.
AMY GOODMAN: Kalief attempted suicide.
JENNIFER GONNERMAN: Mm-hmm. Yeah, that happened several times in Rikers Island. And, you know, it’s totally understandable, considering the conditions. You know, Rikers had—this is hopefully going to change, but there was a lot of teenagers put into solitary. It’s sort of the ultimate management tool, the way they were dealing with unruly population. There was like almost an addiction to solitary confinement. And once in solitary, you know, as study after study shows sort of the incredible impact on one’s mental health, so you can have inmates going in, who didn’t have any mental health problems, coming out a broken person—you know, the paranoia, the lack of trust, the sort of being overwhelmed by stimulation. I mean, Kalief, since he’s been out, you can still see the impact of solitary, even though he’s been home for 16 months. I mean, he, at times—you know, like his brother was telling me, "You know, I’ll invite Kalief to the movies. 'Do you want to go out, do something fun?' And Kalief says, 'Ah, no, I don't want to do that,’" and he’d rather sort of retreat and be in his room at home, door closed, almost recreating the conditions of solitary, and feels more comfortable like that sometimes than out in the world.
PAUL PRESTIA: I’ve spent a lot of time with Kalief. And quite honestly, I don’t see how he could ever be the same after that experience. And the—
JUAN GONZÁLEZ: What are you hoping, with the lawsuit, to be able to accomplish in terms of the responsibility for what happened?
PAUL PRESTIA: Well, obviously, you know, we’re asking the—we need the city to be accountable, to take accountability, to admit that what happened here was unjust, it was unlawful, it was unconstitutional, and it was wrong. And it was. Nothing they can say can justify Kalief Browder’s ordeal. The police can’t justify it. Corrections can’t justify it. The District Attorney’s Office can’t justify it—in my opinion. There is no way. I’ve gone through everything, everything in this case, from the arrest, where you have a victim whose credibility is highly at issue—
AMY GOODMAN: Well, he had gone back to Mexico, you learned, at the very end.
PAUL PRESTIA: Right.
JENNIFER GONNERMAN: Right. Ultimately, that’s why they agreed—
PAUL PRESTIA: No, no, no. It wasn’t at the very end. I don’t believe it was at the very end.
AMY GOODMAN: Do you believe he disappeared at the beginning?
PAUL PRESTIA: I suspect it was long before the date of the dismissal. And for—
AMY GOODMAN: That’s why they kept asking for delays.
PAUL PRESTIA: Right, of course, of course. Because if he was available, Amy, he could have been brought in—well, let’s see, the case was first on for trial, in a trial posture, in December of 2010. Giving them the benefit of the doubt, he could have been brought in much—you know, sometime in 2011, at the very least. All they had to do in this trial was bring this victim in and testify as to what happened. And the problem here is, Kalief was innocent. He was always innocent. And they arrested him based on this—a victim, whose credibility was clearly at issue, without any other evidence to go forward on this case, a case that should have never been prosecuted. And then, to add insult to injury, he has to spend those three years in Rikers. And the ironic thing, Amy—and I know you have to continue—is that they accused him of stealing a backpack, right? As you said in your opening. Yet, at the end of the day, they stole Kalief Browder’s innocence.
AMY GOODMAN: We’re going to leave it there, and I thank you so much for being with us, Paul Prestia, attorney for Kalief Browder; Jennifer Gonnerman, reporter, author. Her latest story is in The New Yorker. You’ve got to read it. It’s headlined "Before the Law: A boy was accused of taking a backpack. The courts took the next three years of his life." We’ll link to it at democracynow.org. We’ll be back in a minute.
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