How A Grand Jury's Indictment Is Indistinguishable From Being Found Guilty

from the there's-a-reason-no-other-countries-use-this-system dept

A recent post of mine took on grand juries, specifically the astounding fact that a North Carolina grand jury managed to crank out 276 indictments in four hours — or roughly, one indictment every 52 seconds. Some commenters pointed out (correctly) that grand juries don’t actually declare anyone “guilty.” They just determine whether the prosecution has enough evidence to bring the case to trial.

But the system is still broken. Grand juries may not hand out guilty verdicts, but they do have the power to imprison people for an indefinite amount of time simply by indicting them. This is exactly what happened to Justin Carter, the teen charged with making terroristic threats after someone reported statements he made while trash-talking with some fellow League of Legends players. The Dallas Observer has been tracking this case (via Reason), and the phrases below are what have been termed “terroristic threats.”

One of the comments appears to be a response to an earlier comment in which someone called Carter crazy. Carter’s retort was: “I’m fucked in the head alright, I think I’ma SHOOT UP A KINDERGARTEN [sic].”


Carter was indicted by a grand jury based solely on these statements. (Police failed to uncover anything else damning after searching Carter’s residence.) According to Carter’s lawyer, the prosecutor presented the “threats” using a couple of screenshots wholly removed from context to the grand jury, which found these met the requirements of the “terroristic threat” charge.

But Flanary says that Bates presented a truncated version of the comments to grand jurors. They did not see “I’m fucked in the head alright, I think I’ma” before “shoot up a kindergarten.” If this sounds like the nitpicking of a defense attorney, that’s precisely the point.

“When you’re dealing with speech,” Flanary says, “… it is absolutely, 100 percent important that the words that you are charging people with are actually the words that they said and not some misrepresentation. And that’s what … this prosecutor did, is misrepresent to the grand jury what he said.”

So, the grand jury indicted Carter and the prosecutor asked for $500,000 bail. Carter was jailed in February of 2013 (the first month of which he spent unindicted while officials sorted out jurisdictional issues), where he was beaten, raped, put in solitary for his own protection and placed on suicide watch. He wasn’t released until July when an anonymous donor paid the bail.

How is that indistinguishable from being found guilty in court? A prosecutor presents only the evidence that will persuade the grand jury to indict and follows it up by asking a judge to set an exorbitant bail. For Carter, he may as well have been found guilty by a jury, for all the difference “it’s only an indictment” made. Since his family couldn’t afford the bail, Carter remained imprisoned, despite not having been found guilty of any crime.

Running 276 cases through in four hours is grossly irresponsible, and it put an unknown number of people into a position like Carter’s — jailed but still supposedly “innocent until proven guilty.” For a large majority of Americans, a bail amount even 1/10th of Carter’s $500,000 is unaffordable. Once indicted and with bail set above what they can afford, they are jailed until they can go to trial and finally start exercising their due process rights, which can often be months after the indictment.

I understand the bail process is in place to help prevent the accused from simply fleeing the country, state or whatever and avoid “justice,” but this combination of grand juries and aggressive prosecution seeking excessive bail amounts turns the system into “guilty until proven innocent.”

That’s not how the system is supposed to work. You’re not supposed to be indicted, jailed indefinitely and then finally allowed to face your accusers and a jury of your peers, if and when that date arrives. Grand juries subvert the criminal justice system, turning the merely accused into de facto criminals, indistinguishable from the other prisoners except for the fact that many of their new “peers” have likely had a chance to avail themselves of their constitutional rights.

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Comments on “How A Grand Jury's Indictment Is Indistinguishable From Being Found Guilty”

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kenichi tanaka (profile) says:

I have to agree that the prosecutor in carter’s case misrepresented the comments that Carter had made. While, technically, he did make the comments, what the prosecutor presented to the grand jury was misleading as it didn’t give the grand jury the full comment and the context in which it was said.

Where this prosecutor is concerned, while I don’t know the full context of law, he created what can be explained as reversible error and made the grand jury complicit in the mad dash to get an indictment.

This is how innocent people get convicted because over-zealous prosecutors play games with grand juries in order to get their indictments. If the grand jury had been given the full context of the comment, as the prosecutor in this case was well aware, the grand jury would never have indicted.

Dan Land says:

Re: Re: Re:

That is the key. IN particular … prosecutors need to have a civilian review committee with absolute power to bring charges against THEM. Other than their own “bar” there is no oversight. The BAR wants that power, and I think is (forgive me) a mistake in the English Legal structure, which our forefathers should have noticed and corrected.

Anonymous Coward says:

Harsh Judgement

Look what happened to this kid, over nothing but words.

Ask yourself again… did America Deserve a 9/11 from a philosophical point of view?

We sit in the lap of luxury that even kings 100 years ago could not afford and allow out of control law enforcement to SHIT straight down the neck of Liberty, while authorities no only allow, but approve these actions as America looks on in apathy.

Some say… In war there are no innocents… because if you do not protest the ‘evil’ actions of your government then you need to consider if that is enough to make it look as though you support the ‘evil’ it commits. Keep these things in mind as you vote/support your next/current congress critter.

Anonymous Coward says:

Re: Re: Harsh Judgement

Re: Harsh Judgement
Did you seriously just ask if we deserved 9-11 because someone was wrongfully imprisoned? Are you demented? 3k people were killed who had fuck all to do w/ anything in this article, and you’re asking if we deserved it???? I take it back: you’re fucking insane, not just demented.

The question is intended to make people think. But if you think I am insane why bother to response to the question?

Perhaps you can tell us at which point you feel that a nation would be guilty of its actions?

How much suffering do you think Germany’s innocent suffered during and after World War II? Go and read up on that and tell me who is insane?

How about the suffering of the People in North Korea?

What has the US been doing in the middle east for the past 50 years… meddling… meddling so damn much that they hate the shit out of us… which is why secret politics and secret diplomacy always ends in failure.

Now do I believe we deserved 9/11? No I don’t because our government keeps this shit relatively secret from us. But here is a kicker… if another happens, now that we are all well aware of how nasty the US has become, I can’t say that we can consider ourselves all that blameless.

After 9/11 happened we voted in a terrorist that is actually trying to justify drone strikes against Americans without due process. Based on the behavior of the left they may not say it, well some have, but they seem to really believe we deserved it. So as long as there are people how there who think we do, then the question must be asked? Why?

David says:

Re: Harsh Judgement

Look what happened to this kid, over nothing but words.

He got indicted. There is not much I?see wrong with that.

He got his life and mental and physical integrity fucked over because of getting indicted.

And there is hell of a lot wrong with that. An indictment is not a verdict and is not supposed to be connected to punishment.

In countries with a functioning judicial system, an indictment means you have to appear before court eventually. In extreme circumstances, when you are a potential danger to the public, it may mean being locked up until trial, with recompensation getting paid if the trial determines that the respective charges were meritless.

Now in this case, there was the claimed danger of a killing spree. Bail was set at $500.000. That’s absurd. The main idea of bail is to keep a suspect from disappearing before trial.

Why would a 16-year old pupil disappear before trial? Makes no sense. If you are afraid that he’ll go on a killing spree, you don’t set bail. There is no way that an outstanding bail will keep somebody from running amok.

So the message of the prosecutor and/or judge is “for $500000, I am ok with the suspect shooting up a kindergarten”. Either that, or “we don’t believe this to be of merit, but we’ll fuck you over it anyway”.

In short, lynch justice, outside of a proper trial, and in full knowledge of not being related to an actual crime. Just behavior the prosecution and court don’t like.

G Thompson (profile) says:

Ah yes the USA Grand Juries…

Basically indistinguishable from Star Chambers and why their so called evidence is inadmissible in any court anywhere else on the planet.

Interestingly though the protections against self incrimination in the US’s Fifth Ammendment were implemented to nullify the inquisitorial ability of Star Chambers.

Oh but “grand juries’ are different. people say.. BULLSHIT! they are basically an absolutely inquisitorial process that removes due process, procedural fairness, transparency and the ability to be represented FULLY by counsel and not forget the fact that exculpatory evidence is NEVER shown because the prosecution is all powerful and the leader of proceedings .. ie: a Star Chambers or Kangaroo court.. take your pick

David says:

And now for something completely the same

Carter was jailed in February of 2013 (the first month of which he spent unindicted while officials sorted out jurisdictional issues), where he was beaten, raped, put in solitary for his own protection and placed on suicide watch.

Well, here is a point of the “justice” system that is even more broken than grand juries. The purpose of jail time is atonement and reintegration. Not being cast in a lawless zone governed by “survival of the fittest”.

How are inmates supposed to value the rules of society in an environment where they are shown that only the worst criminals will thrive?

Most of them will have a felony record afterwards and not be eligible for congress anyway, so why train them for it?

Trails (profile) says:

Re: And now for something completely the same

I’m with you on this.

There’s a LOT wrong with north american justice.

A half a MEEEEELLION dollars bail seems ridiculous unless the judge really thought the kid was a flight risk, but IMO that would need to be substantiated by more than “ZOMG 9/11 + he was mean on teh intarwebz”.

As you point out, the idiocy of the North American penal system, which tends to brutalize and criminalize people, is an MCF (Mongolian Cluster Fuck).

Even if one puts aside the rights of the incarcerated (not advocating such, but for sake of argument), society is benefited by rehabilitation rather than the Lord of the Flies stuff that happens now.

Being selfish for a minute, having this kid brutalized and making him more likely to arm himself and lash out since he (correctly) perceives that his world is a fucked up and dangerous place, is worse for ME, and doing countless times to people indicted for non-violent offenses is significantly worse for me. My point is that the “law & order” stumping for “tougher penalties”, when criminal “justice” is as it is actually begets crime.

Anonymous Coward says:

Re: Re: And now for something completely the same

People are not supposed to be jailed unless they are convicted of a crime. In cases where there is a high risk that the defendant will harm the public before the trial, a judge can deny bail. Obviously, there wasn’t enough evidence to justify denying bail on these grounds or the judge would have done that. What there was a high likelihood of was the defendant lambasting the prosecution and possibly the court on web where the story would bounce around stirring up the ire of the public. Bail is supposed to ensure that a defendant returns to court to face the charges by requiring a substantial amount that would be forfeited if the defendant fails to return. It is not supposed to be a tool for censorship by the court. Yet by setting a bail that is almost impossibly high for the defendant to meet, that is exactly how it is being used. It’s a way of denying bail without actually denying bail. This is why we need the ability for a defendant to challenge the amount set for bail based on an indigency claim.

David says:

Re: Re: Re: And now for something completely the same

which tends to brutalize and criminalize poor people

They should have thought of that before doing whatever made the prosecutor want to turn them into his plaything.

If you don’t recklessly want to invite your own rape, you better make sure to be born with both a penis and a silver spoon.

art guerrilla (profile) says:

Re: ...and ? ? ?

… and ? ? ?

and -sadly- the conclusion is: we DON’T have a functioning justice system…
(just to make sure: we have a SUPER-HIGH-functioning injustice system, IF YOU ARE THE STATE or 1%-er…)

the media is broken,
the gummint is broken,
the justice system is broken,
and us 99% are broken and broke…

are we going to fix a broken system made immune to fixing by fixing a broken system which is immune to fixing by a broken system immune to fixing… ? ? ?
( ad infinitum )

Anonymous Coward says:

Re: Not so simple solution

Can anyone think of a way where prosecutors do NOT advance their careers by getting convictions?

Currently, there is effectively no penalty for failing to secure a conviction. They do not even really suffer from the lost time, since other cases are just on hold if the prosecutor is too busy to respect the speedy trial right of all the accused. Start with applying weights, such as decreasing the career value of a conviction if the prosecutor sat on the case long after the defense was ready to proceed. This makes prosecuting minor crimes have zero or negative value quickly. Next, add a negative career penalty for cases where the evidence was very weak or relied on misleading presentation. Rewarding prosecutors for securing convictions is not inherently bad, but I think we want to place greater emphasis on the quality of the cases, rather than the quantity. Getting a conviction for a crime with a clear victim serves society better than getting multiple convictions on victimless crimes (e.g. threatening statements that the accused could not plausibly have acted on).

jebradley (profile) says:

Unfortunately, to the lawyers, it's a game

It is just a game to the attorneys. They are not interested in finding the truth. They will ask direct questions to try to lead a jury to the conclusion that they want. Evidence is sometimes suppressed to prevent the other side from “winning.”

I have a friend that was an elementary school teacher. He was jailed for inappropriately touching a student. When the prosecutor realized that they didn’t have any evidence, they delayed things, and told my friend that their trial would take place in a couple of years and offered a plea bargin of assault with probation.

When you actually hear the facts, the girl’s mother had told her that if anyone ‘touched her’ and she didn’t want them to, to tell one of her teachers. The other teacher immediately reported it. What it ultimately came down to was that my friend touched the girl’s shoulder when he was talking to her. The prosecutor didn’t want to come out and say that they’d screwed up after they’d had front page news about a teacher molesting a child, so they did their delay tactics. No prosecutor is going to plea bargin a child molestation case to an assault if they have evidence of the individual being a child molester.

Anonymous Coward says:

Re: Unfortunately, to the lawyers, it's a game

Defense attorney’s, for good reason, have the ability to withhold evidence and/or present it in the most favorable light. The 5th amendment is a testimony to this. I suspect many prosecutors feel that this grants them the justification for doing the same as it would be an unfair advantage for the defense especially since they are also saddled with the burden of proof.

Anonymous Coward says:

Re: Re: Unfortunately, to the lawyers, it's a game

” it would be an unfair advantage for the defense especially since they are also saddled with the burden of proof.”

I thought it was “The People Against so_in_so”, not the prosecutor against so_in_so. I would assume that “The People” would be more interested in the facts and the truth rather than suppressing evidence in order to put someone in jail regardless of their guilt.

kenichi tanaka (profile) says:

Federal Grand Juries only serve to determine if there is enough evidence to go to trial. They don’t determine guilt or innocence of the accused but only if there is enough evidence.

The thing is, prosecutors only get one bite at the apple with grand juries. If a grand jury doesn’t return with an indictment, I don’t know what the procedure is, but any judge can refuse to allow a prosecutor to resubmit to the grand jury if they feel there is nothing changed in the prosecutor’s desire to go back to the grand jury.

Anonymous Coward says:

Re: Re:

I still believe grand juries are a necessary part of the process, however the system definitely needs improvement to fix these sorts of problems. We need distinct limits on the the length of time a person can be held pending an indictment. Maybe we need an advocate that reviews the prosecution’s presentation of the evidence before the grand jury to make sure it isn’t misleading. As I said above, we need a means for a defendant to challenge impossibly high bail settings based on an indigency claim. I don’t think the answer is to get rid of grand juries altogether as to do so removes any possibility of a weak case being throw out before the defendant is subjugated to a costly and harmful trial process.

Anonymous Coward says:

Re: Re: Re:

Perhaps we also could use these two things as well. Perhaps, we make it such that evidence not presented to the grand jury can not be introduced by the prosecution unless it is discovered after the indictment. Also, maybe we should give the grand jury the ability to determine what evidence the prosecution is allowed to present. If a prosecution introduces evidence that the grand jury determines is misleading, they can the bar the prosecution from using that evidence at the trial.

Steve says:

Re: Re: Re:

You just need to ask yourself why no other country uses Grand Juries but still manage to convict people of crimes. Maybe then you’ll realize that there may be other, possibly more fair, ways of going about all this.

Also perhaps worth noting that the US has the highest incarceration rate of any country in the world (tied with The Seychelles) at over 700 per 100,000 of the population – and that does NOT include juvenile detention numbers!

Is the US so much more criminal than the rest of the world or are we just addicted to locking people up. []

V says:

While grand juries in theory are a great idea, i.e. a check on the prosecutors’ ability to bring charges, in practice they are horrifying.

A list of problems with the grand jury system (in the US at least):

1. Grand jurors are not screened for bias or other improper factors
2. There is no requirement to provide any instruction on the law (and thus rarely occurs).
3. The prosecutor is not obliged to present evidence in favor of those being investigated (and thus rarely, if ever, occurs).
4. There is no right to counsel
5. There is no obligation to inform the accused that they are being accused, even if they are being called to testify before the grand jury. (This is supposedly to prevent people from fleeing if they know they are being investigated.)
6. There is no Fifth Amendment right regarding self incrimination, and witnesses and/or the accused can be held in contempt if they fail to appear or refuse to answer questions.
7. Testimony provided in the grand jury room can be used at trial. Therefore even if you can’t be forced to incriminate yourself at trial, they can use your testimony before the grand jury as evidence.
8. Everything that proceeds in the grand jury room is sealed and secret unless the PROSECUTION wants to use it at trial. The defense does not get access to it otherwise. Note: This is to supposedly protect people who are accused but not indicted. However, there is no reason keep this secret once an indictment has been secured, except that is advantageous to the prosecutor to keep it secret.
9. Illegally obtained evidence is admissible in grand jury proceedings, e.g. items found during an illegal search.

These issues need to be addressed or the grand jury needs to be abolished. Some have argued that abolishing the grand jury would eliminate the little bit of protection that they provide on the few cases that they choose not to indict. Possibly. However, I believe that if every case had to go to trial, the prosecutors would dump many of these ridiculous cases, just due to case load.

Pragmatic says:

Re: Re: Re:2 Re:

Anarchy => power vacuum => authoritarian control. You weren’t very good at history, were you? Anarchists lead the charge, then are pushed aside or eliminated so the new leaders of the revolution can take over and consolidate their power.

See every revolution for details. So… what are your plans to prevent that from happening this time around?

james cook (user link) says:

Grand Juries are very similar to regular juries

Often times, Grand Juries are the people who just don’t have anything else to do. I do agree, they have become rubber stamps and now fail to do the intended role. But our entire system more or less falls apart at this point. We should reevaluate the structures of this system and see if we can’t find a better solution for these problems.

Tom D Perkins (profile) says:

Fixing Grand Juries

Among the chief things required to fix the grand jury system is to take the away from prosecutors. Return to Grand Juries being regularly and openly empaneled, with perjury charges attaching to any testimony/evidence given them. Privacy is to be at the behest of the accused, not the state, with no indictment proceeding unless conviction seems plausible and in the public interest.

Mike Mahoney says:

Grand jury

The grand jury was supposed to be OUR check against prosecutorial misconduct and official misconduct. We let it get away from us. Take the G/D thing back.
We are the judge of the law and the facts. The law includes all those arcane and funny rules of court procedure. Monkey wrench their game. Do not follow the law when the law does violence to justice.

Jag Gomez says:

Broken Judicial System

Grand Juror’s Indictments or Jurors who participate in a trial only get a snap shot of the incident being handled in the court. The DA, Judge and even the Public Defender manipulate laws in ways that will help get a conviction, which is usually the case. 85% of all the cases that go to trial the appellant is found guilty. Many people in particular the under privilege are forced to take a plea deal and have their record smear for a crime they did not commit because they have been in jail anywhere from three months to a couple of years. Another very important factor is cops tend to over charge just about everyone who they arrest in hopes that at least a couple of the charges stick. Police officers are humans and just like in every professions there are bad apples. I’m been a target by the Los Angeles County Sheriff’s Department for nearly two years now. My ex who I have two daughters with dated Jorge Robles, a California State Parole Agent who’s also a politician. Mr. Robles ran for the California 38th District as Republican Candidate for the congressional seat back in November 2012. On November 8, 2012, I went to my house where I was letting my ex and of course my daughters live in rent free. My priority has always been to provide my daughters a stable housing even if their mother benefits from it by not paying me a single cent. I arrived at my house like I have done in the past a zillion times and I opened my door with my own key which I have always had and not having a restraining order against me to stay away from my ex wife I didn’t break the law or did anything illegal. I greeted my daughters with a kiss and a hug. I was there for approximately 10 minutes and left. I obtained confirmation that my ex had stepped out with Jorge Robles as they went to get drinks as they were going to have dinner. On November 9, 2012, two LA County Sheriff’s Departments (East LA & Commerce) invaded my house as I cared for my mother who was in hospice care and in her last living month. I noticed about 10 deputies all pointing their guns to a separate room in the back of my house that I thought someone was chased all the way to the back room. As I’m watching all the commotion my front door is opened and behold a deputy points a gun in my face and orders me to lean on my own living room floor. I noticed another deputy standing in the middle of the front door with his gun drown out as I’m being hand cuff and literally being hurt. I’m dragged out of my own home and I have never seen so many patrol vehicles like I did this morning. There were at least 15 marked cruisers and at least five unmarked cars. The deputy who handcuff me is cursing at me with full rage and is dragging me and tripping me so I would take a fall or make it appear as if I’m resisting arrest. This deputy asked me where I worked and I told him I work for LA County. He looked at my eyes with a hatred look and told me he was going to ensure I get fired. So after this brutal encounter another deputy takes me to his vehicle only to be dropped off five miles away from my house in an isolated area surrounded by only big warehouses. I thought I was going to get killed. This day the East and Commerce Sheriff’s Departments attacked my lively hood and my way of life. They turned my friends, family and most importantly my daughters against me and needless to say my employer as well. My daughters minds’ were severely poisoned so bad that they ran out of the funeral home when they saw me standing in front of my mother’s coffin crying. Watching them run out during one of the saddest day of my life literally sank my heart to the floor and it was devastating. I tried filing a complaint for having had my civil, federal and constitutional rights and no deputy would want to take it. I escalated my complaint to the entire LA County Board of Supervisors in particular Gloria Molina. It took me six months to find out that the only two deputies that went into my front house was Captain James/Jason Wolak of the East LASD and Commander Henry Romero of the LASD. Jorge Robles being friends of Lee Baca asked him for a personal favor and the above content describes the favor Lee Baca did for Jorge Robles. Since November 9, 2012, I have been arrested four times and is all based on lies. In order to prove my innocence I have to bail out each time I’m arrested and hire an attorney. I have spent over $60,000 so far in trying to prove my innocence. When a police department like the LASD don’t like you or have personal bandura against you, they will do exactly what they done to me because they know it will put a financial strain in your budget. Their objective is to bankrupt you and cut you from any type of support. This is the reason they turned everyone against me and it was based on a bogus investigation. When does an average citizen questions and authority figure if the investigation is legitimate or not. And if you truly want to verify if the investigation is legitimate who do you go to when a Commander and Captain and the main sheriff’s are the ones responsible for smearing me up? In addition, the LASD utilizes illegal tactics known as gang stalking. This tactics consist of isolating, bankrupting, incarcerating or institutioning their target/s. These tactics is what Hitler utilized on the Jewish people. I reported to many news media and other entities such as the FBI and I have yet to hear back from them. MY NAME IS JOSE ALBERTO GOMEZ AND I LIVE IN MONTEBELLO CALIFORNIA. I FEAR FOR MY SAFETY AND LIFE FROM THE LA COUNTY SHERIFF’S DEPARTMENT, MONTEBELLO POLICE STATION AND EVEN THE MEXICAN MAFIA. The LASD sent a Mexican Mafia Member to break into my house and steal many items and to threaten my life! PLEASE SOMEONE OUT THERE I’M NEED OF JUSTICE AND MOST IMPORTANTLY FOR SAFETY AND A PIECE OF MIND.

Belinda Hudson (profile) says:

Re: Broken Judicial System

This is sad. Awful. I have seen this type of INJUSTICE and I don’t know how it can be that this even happens. There is a law, a much higher law and judicial that these people will have to face one day and its our All MIGHTY GOD. I am praying for you and hope your case is seen and handled accordingly as it should be. Somewhere there has to be justice, consequences for the actions of these individuals whom are part of this. Your ex should not sleep well at night knowing she has created Hell on earth for you, but mostly for her exposing the children to this type of behavior, knowing that they (as well as her) once were good enough to be husband father provider. Why can’t you take back your home and take her to court for custody rights? You haven’t mentioned this, your rights as their father. My heart hurts for you and your children most of all. You have to go about this from another angle. Keep faith that what’s done in darkness always comes to light. I hope fair justice is fine for all and the Truth told.

LEE ANN says:

people that commit perjury

if a person got up on the witness stand and testimony was i don’t recall getting one of my wife’s royalty checks for250.000.00 and deposited into my account. and your sitting in the court room and you have the deposit ticket and your old check for the same amount. if your lawyer does nothing to discredit this.and you take it to a district attorney “DON’T HAVE ENOUGH EVIDENCE” I WANT TO KNOW WHAT DOES IT TAKE TO ARREST A PERSON FOR A KNOW CRIME OR JUST TAKE IT COMPLETELY OUT OF THE LAW AND SAY “GO AHEAD LIE CHEAT AND STEAL ALL YOU WANT TO NO BODY WILL DO A DAM THING ABOUT IT ANYWAY BECAUSE NOBODY REALLY GIVES A RIP UNTIL IT HAPPENS TO YOU AND IT PROBABLY WILL THE ONE THAT SAID “NOT ENOUGH EVIDENCE”

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