Friday, September 26, 2014


My first conscious sports memory was George Brett hitting a homer off Goose Gossage in the 1980 ALCS. For 4 of the previous 5 years, the ALCS had been the Kansas City Royals against the New York Yankees. Those damn Yankees won every time. Until George Brett, the greatest 3rd baseman of all time (and, no, don't bother arguing with me on that one), stepped up to the plate that fateful October night. I was 7. I knew it was a big moment. I knew the Royals winning was big. But it was my dad's reaction that really stuck with me, because he understood. He told me, "That was a man deciding his team was going to win and making it happen. Not many players can do that."

The Royals finally broke through the Yankees' chokehold that year and got to the World Series in 1980, though they never threatened to win the series that year. 5 years later, my Royals made the World Series again and they won it, as dramatically as anyone had ever won it. Prior to 1985, no team had ever come back from a 3-1 deficit in a 7-game series, but the Royals did it twice. First against the Blue Jays in the ALCS and then against the Cardinals. And the Don Denkinger out call in game 6 of the WS wasn't that big a deal, folks. It would only have been the first out of the inning. We still only needed 1 run to tie that game. And the Cardinals didn't have to fall apart so spectacularly in game 7 anyway. I've always believed 1985 was destined to be the Royals' year and it would have happened no matter what.

But then the very next year, our beloved manager was diagnosed with a brain tumor. And all hell broke lose. The team started losing. George Brett and Frank White retired. The devoted and beloved owners died. For 29 long years, the Royals were mired in misery. Losing year after losing year. 100 loss year after 100 loss year. We became the laughing stock of MLB. A punchline in "Pitch Fever." The team other team's fans don't bother to show up for. We sort of contended in 1994 until a strike ended that season. We definitely contended in 2003 until August. Then last year, we finally ended with a winning record, but still we ended on game 162. Every year, for 29 damn years, we ended on game 162, the last game of the regular season. Every other team in every professional sports league in the US has had at least one playoff appearance in those 29 years. Except for the lovably hapless Kansas City Royals.

It's been a rough 29 years to be a Royals fan.

Until this year. Until tonight. Until we beat the Chicago White Sox 3-1, thus clinching a playoff spot, even if it's only in the WildCard game.

In 2014, the Kansas City Royals will play a game 163. And it feels amazing.

Let's go, Royals.

Wednesday, August 20, 2014

If a cop commits a crime on video and in front of dozens of witnesses, is it still a crime?

Imagine you were walking down a street with a weapon, say a scary-looking assault rifle of some type. Imagine you turned to a person walking down the street near you and said, "I will fucking kill you," while pointing said scary-looking assault rifle at said person. Now imagine it was all caught on video tape with lots and lots of cops around. Just imagine what would happen to you.

I'll tell you: you'd be arrested and charged with aggravated assault. That's one of those crimes cops won't wait to present to a DA for formal charging and an arrest warrant. Cops can actually just arrest you if they see you commit a crime.

Now let's change the hypothetical a tad: imagine the person you pointed your scary-looking assault rifle at while threatening murder was a cop. What do you think would happen to you then? Personally, I think you might be lucky to avoid seeing a few new holes in your body next time you looked in a mirror (not that you'd really be able to look in a mirror because the number of new holes in your body would be incompatible with life). At the least, you'd be surrounded, tackled to the ground, probably roughed up a bit.

But, if you're a cop, well you'd just keep going about your merry business of crowd dispersal and intimidation. Sure, one of your colleagues would pull you away from the guy you were threatening to kill. Probably that colleague would suggest you should cool your heels a bit.

It wouldn't be until the next day after the bystander who caught the incident on video uploaded it before people really noted your out-of-control, criminal conduct.

Of course, this really did happen last night in, where else, Ferguson, MO. That video went viral. Thanks to that, the cop was identified. None of the witnesses could have identified him last night because cops in Ferguson are still refusing to wear badges or anything else with identifying information. He was asked his name and responded colorfully.

Now that the video has gone viral and the cop has been identified, he has at least been suspended.

I could go off on a tangent now about why so many legislators are so infuriated by teacher tenure because it means experienced teachers who have proven their classroom abilities can't just be fired for any reason. Teachers are worried about being fired for things like political reasons or as punishment for speaking up for particular students. Teachers are not trying to keep jobs they're bad at; nor does tenure protect bad teachers. But still, we put an end to teacher tenure in my state.

Meanwhile, just try to fire a cop. A bad cop, a dirty cop, a rogue cop, a murdering cop. They're impossible to fire. Even when you have video of them brazenly threatening someone. They get suspended, usually with pay. They get thorough investigations, hearings with representation, the backing of the police union. Heaven forbid a cop caught on tape threatening a pedestrian should just be summarily dismissed. Can't have that!

But suspending this cop isn't enough. He should be charged with a crime. Aggravated assault is, with a deadly weapon, putting someone in fear of harm. What this cop did fits the bill in my book. I would accept a plea down to criminal threat because I'd be a very reasonable prosecutor. But I wouldn't accept letting it go without criminal prosecution. Any non-cop who pulled that crap would be under arrest already. This guy should be, too.

Think of what that might do to calm tensions in St. Louis County if this cop were immediately charged with a crime. How many images have we seen in the past week of cops acting like thugs? Pointing their weapon muzzles at citizens instead of holding them in a downward position. A cop calling protesters "fucking animals." Snipers atop armored vehicles. Tear gas being thrown, journalists being arrested. And throughout it all, I've seen so much evidence of cops who don't see the people on the streets of Ferguson as the community they volunteered to protect and serve, but as underlings who are to do exactly as they are told, regardless of the rightness or lawfulness of the order. I've seen contempt, not compassion. I've seen disgust, not desire to bridge gaps.

Forcefully letting the community know that cops in St. Louis County do not have a license to threaten, do not have authority to make citizens fear for their lives would be a strong first step to improving relations between the residents of this county and their police force. Charging this cop with a crime we have video of him committing would let the people of Ferguson (and the rest of the US) know cops are accountable in a very real way for their very bad behavior. Oh, and charging him with a crime when we have video of him committing that crime would also just flat be the right thing to do.

Saturday, August 9, 2014

No, John Hinckley Jr. must not be charged with murder

Is the coroner who declared James Brady's death a homicide trying to make a political point? Was s/he subjected to pressure from any prosecutors or police? Or is this coroner just a stickler who says that because the health issues that led to Brady's death can be directly traced back to a gun shot wound he suffered 33 years ago, the death was the result of another human's actions and was thus a homicide?

I really don't know what the medical examiner's office was thinking when it labeled this death a homicide. But what I do know is that trying now to prosecute John Hinckley Jr. for murder would be a stupid, pointless waste of time and resources. It shouldn't even be considered.

I've seen it happen too often that prosecutors file charges without doing research about whether there are bars to those charges only to realize weeks or months later that the charges aren't prosecutable. No one benefits from this kind of react first, research later prosecution. It's not fair to a rape victim whose attacker has finally been identified after decades to let her think the man will be prosecuted because you didn't bother to research the statute of limitations first. Or to tell a grieving parent her son's death will be treated as a murder when the murder laws of your state don't allow that.

In articles I've seen today about this homicide finding, I've seen some rumblings that the case is being "investigated," that prosecutors are "reviewing the ruling." I hope they will actually carefully review the law and think about the case before filing anything because there should not, cannot, be a new trial.

30 years ago, a jury found John Hinckley Jr. was not guilty of charges related to the shooting by reason of insanity. That legal finding ought to be binding on the state. You can't undo that jury finding, can't ignore it, can't say it doesn't matter now. It does. It's law of the case. Eugene Volokh agrees with me on this, and also explains some other legal bars to prosecuting Hinckley now.

So for legal reasons, no one should seriously think trying to prosecute Hinckley for murder now is a worthwhile idea. And prosecutors should think through all of these legal obstacles before they file any charges, not after.

But there's a non-legal reason for letting this go, too, even if he could be prosecuted. John Hinckley was insane when he decided shooting President Reagan was just the thing to impress a woman he didn't know. A jury had no trouble making that finding. As a result, Hinckley has lived in mental health facilities since. Yes, he's now allowed passes so he can spend time at his mother's house, around 2 weeks a month. But he's been supervised and treated for decades. For over 30 years, he has been prevented from hurting anyone again.

Preventing him from hurting anyone is precisely what the criminal justice system's goal for this case was. We have already achieved all we could hope to achieve with Hinckley. He is still within a court's jurisdiction. He is still required to accept supervision and treatment for his mental illness. If his mental health deteriorates, there are already procedures in place to restrict the freedoms he has earned. Nothing more would be gained by trying now to put him in prison (where, by the way, it's almost guaranteed his mental illness would not be nearly as well treated).

The Hinckley case was a watershed moment in the criminal justice system. The outrage that a man who was insane at the time of his crime was found to be insane at the time of his crime was enormous (even if utterly unjustified). There was a false but very strong sense that he "got away with it" by being housed all these years in a mental institution instead of a prison. As a direct result of this case, states across the country altered their laws on mental illness as a defense to crimes. These new laws made it much harder for defendants to rely on mental illness as a defense at trial. The intent of these changes was to make sure the Hinckleys of the world would go to prison, not some "cushy" mental hospital because there was somehow something unjust about treating a person with profound mental illness as a person with profound mental illness.

Trying to prosecute him now would demonstrate that we've learned nothing about how wrong those knee-jerk reactions to his original verdict were. Our prisons are overrun with mentally ill inmates because we've criminalized mental illness. People like John Hinckley Jr. should be in mental hospitals, not prisons. As a society, we're better off when we treat mental illness and show compassion to those who suffer from it instead of throwing them away in prison as people too damaged to bother with.

The justice system's treatment of John Hinckley Jr. has been exactly what it should have been. There is nothing to correct, no reason to pursue new responses to his 33 year-old crimes. There is no reason to reopen that case. Here's hoping the powers that be know that.

Thursday, July 31, 2014

Forensic sciences in the criminal justice system: still a complete mess

Remember 5 years ago, when the National Academy of Sciences published a comprehensive report about the state of forensic crime labs and their impact on the criminal justice system?

Among the systemic failures noted by the NAS (and others, notably defense attorneys):

  • that crime labs are too inextricably linked with the prosecution and investigators, thus infusing bias into the testing process
  • that no national standards existed for many testing disciplines
  • that results are overstated in court
  • that junk science is passed off as conclusive evidence

Well, this might surprise you, but nothing much has changed. Why? Well, I'd suggest it's because the institutions that are currently in charge of the crime labs and the types of testing done don't want things to change. Because admitting things need to change is tantamount to admitting past mistakes. And we know prosecutors, the FBI, and pretty much everyone else involved in prosecuting people don't much care to admit past mistakes.

Now we learn that

Nearly every criminal case reviewed by the FBI and the Justice Department as part of a massive investigation started in 2012 of problems at the FBI lab has included flawed forensic testimony from the agency, government officials said. Washington Post
And the FBI's initial response was to stop the review. A see no evil kind of response, perhaps? If we stop digging, we'll stop seeing all the bad things we've done in the name not of science but of convicting people.

Some of the stuff that was reviewed for that 2012 investigation, and that still needs to be reviewed, includes "hair matching" which I put in quotes because it's such bunk. Tip if you're ever on a jury: if a lab analyst gets on the stand at your trial and starts talking about "hair matching," know said lab analyst is full of it. Unless a hair left at a crime scene has a follicle from which DNA can be extracted, there's no way for a person to use any scientific method to claim to match that hair to the hair of a particular person.

At yet, the FBI did it all the time. The first questions about the conduct of some FBI examiners were raised in 1997. And yet, we still don't have a thorough review of all the cases those examiners touched. People are on death row. People have been executed. But still, to this day, the FBI is dragging its feet about honestly assessing the scope of the problem. With that, I will presume, they're not being as insistent and urgent about making changes as I would like to see. (As I would hope anyone interested in justice and good science would like to see.)

No one benefits when the FBI, or its state and local counterparts, play fast and loose with science in the name of nailing the perp. That kind of mentality leads to wrong results. The evidence, when properly and neutrally examined, should lead investigators to suspects. Too often, though, crime labs that have any connection to, and thus a vested interest in, the investigation look at the evidence with the hope of using it to convict the pre-determined suspect. When crime labs and investigators work for the same team, investigators can get a little too tempted to tell the lab analysts what result they need to see. All forensic sciences are capable of having the results cajoled, massaged, overstated, or just flat manipulated. Yes, even DNA isn't exempt from this because there is always a human element of interpretation to any test result. This is a large part of what the FBI uncovered when it was conducting this review, finding that analysts in court were grossly overstating results, indicating far more confidence in matches than science called for. Heck, in many situations, declaring a match at all isn't supported by the science. But when your colleague is really sure this suspect is the guy and there are no protocols telling you you can't declare a match...

This is why national standards matter and were recommended 5 years ago. So we can't have an overzealous fingerprint analyst in Oklahoma be willing to declare a match based on 3 points of similarity instead of 8 or 9. So we can do away with scientists with all their sciencey credentials coming into court and telling jurors they did "microscopic hair analysis" and the crime scene hair matched the defendant's hair.

This is why the NAS recommended crime labs be made independent of police and prosecutors offices 5 years ago. So that crime lab analysts wouldn't be part of the prosecution team, but would be free to analyze the evidence free of that bias. Scientists left to their own science devices and purposes would never have come up with that microscopic hair analysis nonsense. Instead, it was thought up by FBI employees who were part of the team trying to catch the bad guys.

It is disheartening to see the FBI is still dragging its feet about acknowledging problems with bad evidence, overstated testimony from its analysts, and the bias that comes from working for the agency that's charged with arresting the bad guys. It is horrifying to realize how many people have been executed or incarcerated for decades based on this type of evidence.

There has been far too much delay already. We desperately need to clean up our approach to forensic sciences in the criminal justice system. One more day of delay is inexcusable.

Tuesday, July 29, 2014

Sometimes defending can be fun

Oh my, I so would love to be the lawyer who gets to present this defense to a court:

Former Gov. Bob McDonnell of Virginia and his wife, Maureen, on trial for conspiring to use his office for personal enrichment, outlined an unexpected defense on Tuesday: Their marriage was so broken that they did not communicate enough to conspire about anything.
 It really doesn't get better than a fun, novel, delightfully devilish, slightly snarky argument.

Too often, we're stuck with nothing. We're stuck with the cigarette butts at the crime scene with my guy's DNA were planted there by the real culprit. Or the scratches all over the defendant's neck that just happen to match what the victim said she did to the perp really came from climbing through bushes to find that sad, stray kitten. Or I just happened to be in the bathroom when the real perp came in, killed the victim, and then left without a trace after which I then went and tried to revive the victim, thus explaining why my bloody footprints and fingerprints and DNA are all over the crime scene.

In short, we often don't have a whole lot to work with.

But this, yeah I could work with this.

Q: Now Mr. and Mrs. McDonnell couldn't stand each other, could they?
A: No.
Q: They never voluntarily stayed in the same room together?
A: Never.
Q: Mr. McDonnell called his wife "The noose around my neck?"
A: More than once.
Q: And Mrs. McDonnell joked about spiking his food with cyanide?
A: Daily.
Q: So the prospect of the two of them working jointly on a plan to use his office to enrich themselves?
A: Slim to none. And slim just left town.

It would be fun to ask these kinds of questions of all the witnesses. Just how much did these two hate each other? How acrimonious was the relationship? And how did it manifest? Affairs? Broken dishes? Cold, dead silence?

There could be a lot of shared smiles with the jurors, maybe a few titters. It's stressful as hell to have someone's life in your hands. Being able to bring a little levity to the courtroom helps. And having an argument you can really sink your teeth into is the dream.

So enjoy, McDonnell defense attorneys. I know I would.

Wednesday, July 23, 2014


Tonight, I am angry.

Legitimately, thoroughly, heart-breakingly angry.

I am angry for my colleagues in Arizona. For days, weeks, months, the intrepid defenders representing Joseph Wood, who was executed today, have been fighting to get information about the lethal injection process. They, like any good defenders, wanted to know what the procedure would look like, what drugs would be used, where the drugs came from, what kind of training the people administering the drugs had. They argued to court after court that we couldn't assess whether executing Joseph Wood would violate the Eighth Amendment prohibition on cruel and unusual punishment without that information. Not only were they shot down by every court, they were vilified by the public, criticized in online comments sections, accused of filing frivolous motions, grasping at straws, doing whatever they could to eek a little more money out of the taxpayers. And in the end, they had to watch someone they cared about (because it is possible to care about people even after they've done horrible, terrible, heinous things) suffer through a prolonged death. (In a way that proved they were right all along to want the information they had sought, but small comfort that is to them tonight.)

I am angry for the portion of the American populace that wants no part of the death penalty. We think it's ugly, dirty, beneath the dignity of this great nation. We think intentional killing is wrong no matter who does it or why. Tonight, we feel guilty, we feel sorrow, we even feel dirty because we haven't been able to stop things like what happened to Joseph Wood in Arizona tonight. Our failure to win the day on abolition of the death penalty makes us complicit in your murder and that makes me angry.

I am angry for the reporters who had to watch Joseph Wood's prolonged death, that included him gasping and struggling for breath for nearly two hours. I am angry for the prison guards and other staff who were charged with trying in vain to do this thing they had no business doing. These are people trying to do their work, trying to be honest and lawful and genuine. And yet, they will now be forced to remember forever the sounds of Joseph Wood gasping for breath, the sights of him struggling as his execution went against plan. Actual people are tasked with carrying out the acts that will end human lives and with documenting those acts for the public. Those people pay a price and I am angry on their behalf.

I am angry for all of the men and women on death row throughout the nation who have to live in purgatory on earth, wondering if that could be the fate that awaits them next week, next year, or 10 years from now. No matter what you've been or done, no one should have to live with that kind of mental torture. We none of us think what their victims endured was ok because human beings shouldn't treat each other with such carelessness, such disdain. True adherence to that ideal means we shouldn't be ok with treating any human beings that way, no matter how much some humans might "deserve" it on some cosmic score card of pain.

I am angry as hell at the people who insist on keeping the death penalty alive in this country. It should be a relic, something we discarded along with lynchings, Jim Crow laws, denial of women's suffrage, and any number of other things civilized, enlightened societies are better without. I am furious that they insist some people waive their rights to live, deserve whatever manner of torture we can think of, etc., without recognizing the cost the rest of us pay when harmless, defenseless people are intentionally killed. We will be a better society when those people are finally defeated. I am angry that they keep us from being our best selves.

I am angry for Joseph Wood. He suffered a terrible, painful death. He gasped for breath, snorted, struggled for almost 2 hours. He will never now be able to tell us what it felt like. And while, yes, his victims also undoubtedly suffered in ways we will never be able to imagine, that doesn't make it wrong for me to condemn his suffering on top. We are supposed to be better than common criminals. If I could speak to Joseph Wood, I would tell him how righteously angry I am on behalf of his victims. That anger towards his actions does not in any way limit my ability to look Joseph Wood's torturers in the eyes and express the same righteous anger about Wood's subsequent suffering. Any time a human being suffers at the hands of another human, anger is justified.

There is no good way to kill a human being. Death is ugly. When left to run its own natural course, death can also be beautiful, transcendent even. But the ugliness is always there. When it comes as the result of the intentional act of human hands, there's no hiding the ugly. The ugly will always reveal itself. There is no method human beings can devise of intentionally killing each other that won't eventually reveal the ugly underbelly. Firing squad, hanging, drawing and quartering, lethal injection, electrocution, even Madame La Guilllotine herself. Every single method has been botched. Every single method has resulted in human suffering. Every single method is beneath us.

There is no good way to kill a human being. So for the love of all that is good, stop freaking trying.

There will never be a good way to kill a human being.

Wednesday, July 16, 2014

Listen to the smart judge, California

I've long known that California, of all states, had by far the most dysfunctional death penalty system. At last count, they had 748 defendants on death row. In total, over 900 individuals have been sentenced to death since California reinstated the death penalty in the post Furman-era of the mid-70s. Yet since 1976, only 13 people have been executed. If you take the total amount the state has spent on death penalty cases since 1976 and divide it by those 13 executions, it's a staggering number (as in several hundred million dollars). Since 2006, there haven't been any executions and there's no reason to think there will be one any time soon because the state has no execution protocols in place. Meanwhile, new death sentences are being imposed every year, so the death row population is ever-increasing.

I knew that the average length of time defendants spent on California's death row dwarfed the national average, that death row inmates in Cali were more likely to die from natural causes than execution, etc. I knew that one of the main problems was a lack of resources. Not enough lawyers, to start, because there's not enough money to fully-staff public defender offices and way not enough money to entice private attorneys to take on these cases. Then, of course, there's no money for the additional resources a defense attorney needs to handle post-conviction procedures correctly, like to hire investigators and experts, track down witnesses, etc. I knew that the death penalty in California was a pointless exercise in futility.

But even with all that knowledge, I was still  not quite prepared for the depth and breadth of the dysfunction in California as it was laid bare today in a federal district court opinion finding the California death penalty system to be unconstitutional. The defendant, Ernest D. Jones, through his lawyers at the Habeas Corpus Resource Center (HCRC) argued that the systemic dysfunction and delay that permeates every level of post-conviction review in California rendered his death sentence arbitrary in violation of the Eighth Amendment. Arbitrariness is a key word in death penalty case law; it's the thing we've been striving to pretend doesn't exist in our death penalty schemes. In this context, the arbitrariness argued by the defense and agreed to by the federal court was in how few death sentences will actually be carried out and that there's just no telling which few inmates it will be carried out on. There's really no rhyme or reason to why those 13 guys were the ones who were executed. No will there be any sensible distinction between the say 5-10 guys now on death row who are executed and the other 740 who will avoid that fate.

Because of the ridiculous delays and the sheer randomness of which cases finally make it through the system, this federal district court judge found California's death penalty unconstitutional. It's what people in the know have been saying for years. It's beyond refreshing to see a judge own it.

The thing that most floored me as I read this decision was how long it really takes to get attorneys appointed on direct appeal. In a normal state where the process is working as it should, the appointment of appellate counsel* should happen at roughly the same time as the pronouncement of sentence. A defendant is formally sentenced, the trial attorney files the notice of appeal (often on that day, but definitely within about 10 business days), and appellate counsel is appointed. It's not at all uncommon for all of that to be done on the day of sentencing. It's pretty easy to write a name on a form and then send a copy of that form on to appellate counsel. Then appellate counsel gets the appeal rolling, filing the necessary documents at the appellate court, requesting transcripts, etc.

But in California, it's not that simple. In California, as I learned in today's decision, it takes 3-5 years for appellate counsel to be appointed. 3-5 years. That is 3-5 years that a person newly convicted of murder and sentenced to death must wait around in prison without an attorney, without anyone to ask about the process, without anyone on his side. Maybe to some of you, that doesn't inspire a whole lot of sympathy. But to me, being in prison and facing a death sentence without one single person to turn to for guidance is unimaginable. One thing I wonder about is whether the transcripts are being prepared in those intervening years or whether that process waits until there is an attorney appointed? It's bad enough that defendants have to wait 3-5 years before an attorney begins working on the case, but it would be even worse if "working" on the case involves all that preliminary, time-consuming stuff like compiling the record and ordering transcripts.

California's death penalty quagmire doesn't get better after the direct appeal, either. There are lengthy delays in the appointment of the attorneys who handle state and federal habeas review. This is the part of the process that frustrates the crap out of kill-happy politicians and a public who doesn't understand why there are so many appeals. But it's an essential part of the process. Generally, it's only in habeas proceedings that defendants can raise issues related to the performance of trial counsel. Since effective assistance of counsel is a constitutionally-guaranteed right, it's kind of a big deal to make sure that right wasn't denied. And yet, in California, again, we're talking an average of years before habeas counsel is appointed.

The delays inherent in California's death penalty system aren't because defendants are pulling tricks and being difficult. It isn't because attorneys are filing frivolous motions and meritless appeals. It's because for literally years, there is no one doing anything on these cases. There is, in fact, no one to do anything on these cases.

That the California system has been irretrievably broken for years is not news. Back in 2008, a commission offered numerous suggestions for clearing up the quagmire. But in 2014, nothing has changed. The courts are more backlogged than ever.

Really, this judge just had the courage to say what so many people have been thinking for years. California, your death penalty is a joke. No, worse. It's a disaster. You've hopelessly, irrevocably mucked it up. It cannot be fixed. You will never execute the defendants you have already sentenced to death; you will definitely not get to any new death sentences. You're throwing bad money after good into this thing and getting absolutely nothing out of it. So stop. Just stop. Take this decision as your opportunity to once and for all get out of the death penalty business while you still have some dignity.

The only way for California to fix its death penalty is to abandon it.

*It really needs to be different counsel for a couple of reasons. Trial work and appellate work are very different beasts, for starters. But you also want fresh eyes on the case and counsel who will be free to identify if prior counsel made mistakes.
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