news article: BC Judge questions latent prints

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Identify
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news article: BC Judge questions latent prints

Post by Identify » Thu Oct 24, 2013 11:43 pm

http://www.vancouversun.com/Mulgrew+Jud ... story.html

"Ian Mulgrew: B.C. Supreme Court judge breaks protocol by introducing his own research

What was he thinking? Judiciary frowns on using material not presented at trial


BY IAN MULGREW, VANCOUVER SUN COLUMNISTOCTOBER 24, 2013

The judiciary over the last decade has admonished juries and even declared mistrials because a juror accessed information on the Web not presented at trial.

A rookie B.C. Supreme Court justice presented his own material to a trial about the reliability of fingerprint analysis before he acquitted a longtime offender.

In dismissing a break, enter and theft charge against Timothy Dale Bornyk, Justice Gordon Funt surprisingly cited a Scottish report and other documents he discovered himself that cast a gimlet eye on a CSI cornerstone.

A 37-year-old crook, Bornyk was charged with ransacking and robbing a Surrey home in July 2010 while the owners vacationed in Washington state.

The only evidence against him was a single latent fingerprint on a box containing a Living Dead Doll, a ghoulish carnival figurine delivered by courier from the U.S.

Justice Funt said in a written decision Tuesday that during the trial he went away one day after argument and “became aware of” further relevant materials.

What he found was a two-year-old Scottish document — “The Fingerprint Inquiry Report,” by Sir Anthony Campbell, a former justice of the Court of Appeal of Northern Ireland — and three forensic science journal papers.

Justice Funt brought the material “to the attention of counsel and arranged time for further argument.”

Crown Pam Bhatti said the material should not be considered evidence in the trial, but also provided several other articles about the dependability of fingerprint analysis.

The court-recognized RCMP forensic identification expert, who testified he had “never made an error,” insisted the print on the Dead Doll box matched Bornyk’s right ring finger.

Even though the officer conceded that a portion of the latent print was distorted by wrapping, he was adamant and maintained that a second RCMP expert confirmed his opinion — though that officer was not called to testify.

That wasn’t good enough, Justice Funt said, given the information he had rooted out.

He noted “most of the well-known (fingerprint) errors have occurred in cases involving a single, distorted impression.”

Without the corroborating officer’s testimony, Justice Funt added, there was no proof of verification and the “alleged verification is inadmissible hearsay.”

He was also skeptical about the officer’s self-assurance given he used a photocopy of the latent fingerprint rather than an original image in his analysis.

“While the usable portion of the latent fingerprint and the known fingerprint are quite similar, I have more than a reasonable doubt that there is a match of the latent fingerprint to the known fingerprint,” Justice Funt concluded.

The problem is judges are not supposed to initiate their own investigation, unexpectedly visit crime scenes or go looking for evidence to present in a trial occurring in front of them.

They are supposed to make decisions based upon what counsel tell them and the evidence presented — not their own independent research or web browsing.

If the prosecution here was wanting, Justice Funt should have dismissed the charge based upon proper submissions from the defence.

There are plenty of good reasons for telling judges to deal only with what is placed in front of them and not to do legwork for the prosecution or, as in this case, the defence.

Parties cannot predict when a judge is going to independently gather supplemental information; they cannot predict what material a judge might stumble upon or how much deference or weight it will be given.

Lawyers can be caught off guard being confronted at trial by material the judge suddenly references without an opportunity to contest its accuracy or relevance.

In this case, the judge provided that opportunity — but what was he thinking?

The judiciary over the last decade has admonished juries and even declared mistrials because a juror accessed information on the Web not presented at trial.

The Criminal Justice branch says it’s reviewing the decision and its options.

No matter how well meaning or benign, Justice Funt deserves a rap on the knuckles for his extracurricular activity.

imulgrew@vancouversun.com

The decision is available on the court website at courts.gov.bc.ca/jdb-txt/SC/13/19/2013BCSC1927.htm

© Copyright (c) The Vancouver Sun"

Identify
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Re: news article: BC Judge questions latent prints

Post by Identify » Fri Oct 25, 2013 7:19 am

http://www.vancouversun.com/news/Troubl ... story.html

'Troubling' questions about fingerprint evidence lead to acquittal in Surrey break-in

By Bethany Lindsay, Vancouver SunOctober 23, 2013

Uncertainties about a match to the single fingerprint found at the scene of a Surrey break-in led a B.C. Supreme Court judge this week to acquit the only suspect in the case.

Timothy Dale Bornyk already had a long history of theft and break-in-related convictions before his arrest in connection with a July 2010 break-in at 16988 83A Ave. He avoided adding another to the list when Justice Gordon Funt ruled Tuesday that the fingerprint evidence simply wasn't convincing enough.

"While the usable portion of the latent fingerprint and the known fingerprint are quite similar, I have more than a reasonable doubt that there is a match of the latent fingerprint to the known fingerprint," Funt wrote in his decision.

Before he made his ruling, the judge said he read up on fingerprinting analysis and some of the shortcomings of the investigative tool. In his decision, he quoted an academic study that stated, "[m]ost of the well-known errors have occurred in cases involving a single, distorted impression.”

Funt said that after listening to an RCMP forensic identification specialist's testimony linking Bornyk to the break-in, he identified "a number of troubling aspects."

The first of these was the information that if a specialist makes a mistake identifying a fingerprint, they're automatically removed from the the force's forensic ID program. Funt suspected that could lead to institutional bias, as well as potentially unreliable testimony.

"While the Court may expect an expert to hold his or her opinion firmly, the Court expects an expert to testify with thought not shackled by the fear of losing his or her position if he or she changes his or her opinion," the judge wrote.

Funt also pointed out that the ID specialist used a photocopy of Bornyk's fingerprint to make the match and that the distorted portion of the print found at the crime scene was the part that often contains unique whorls and loops. He suggested that if a larger database of prints were used, it might have turned up other potential matches.

The judge even suggested that he could see unexplained differences between the two fingerprints.

Online court records suggest that Bornyk has recently served jail sentences for a range of offences including possession of stolen goods, drug possession, dangerous driving, possession of break-in instruments and breach of probation.

blindsay@vancouversun.com

© Copyright (c) The Vancouver Sun

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Re: news article: BC Judge questions latent prints

Post by Steve Everist » Fri Oct 25, 2013 8:14 am

It appears that, prior to being appointed as a Supreme Court Justice, his main area of practice had been tax law:

http://www.justice.gc.ca/eng/news-nouv/ ... 32790.html
The Honourable Gordon S. Funt, a lawyer with Fraser Milner Casgrain LLP in Vancouver, is appointed a Judge of the Supreme Court of British Columbia, to replace Mr. Justice D.C. Harris (Vancouver), who was appointed to the Court of Appeal on April 5, 2012.

Mr. Justice Funt received a Bachelor of Commerce in 1976 and a Bachelor of Laws from the University of British Columbia in 1977. He was admitted to the Bar of British Columbia in 1978.

Mr. Justice Funt had been with Fraser Milner Casgrain LLP (and its predecessor firms) since 1984. He was a member of the tax group at Thorne Riddell, Chartered Accountants (now KPMG) from 1981 to 1984 and an associate with Braidwood, Nuttall, MacKenzie, Brewer, Stevenson and Greyell from 1977 to 1981. His main area of practice was tax law.

Mr. Justice Funt was a member of the International Fiscal Association, the Canadian Tax Foundation and the Society of Tax and Estate Practitioners. He has been Editor-in-Chief for Business Vehicles, Federated Press, since 2001. He is the author of numerous published articles and papers, and a lecturer at various conferences.
Steve E.

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Re: news article: BC Judge questions latent prints

Post by clpexco » Fri Oct 25, 2013 10:33 am

Here is a document containing the judge's full reasons for judgement:

http://courts.gov.bc.ca/jdb-txt/SC/13/1 ... SC1927.htm

L.J.Steele
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Re: news article: BC Judge questions latent prints

Post by L.J.Steele » Mon Oct 28, 2013 8:41 am

Don't dis tax lawyers, Steve E., one of the smartest attorneys I know was a tax lawyer -- the job rewards attention to detail, copious research, and the ability to learn technical areas quickly.

I don't know anything about Canadian procedure. In the U.S., this might be acceptable if handled a bit differently. The Federal Rules of Evidence. R. 706, allows a judge to appoint an expert on its own motion. If Canada has a counterpart to 706 that might be a way to approach it.

Judges aren't like juries; different rules apply. Neither of them can do factual research -- they can't drive by a crime scene to gain outside knowledge of the lighting or distances or spacial relationships. But judges are different on technical information. If, for example, a judge did his/her own research on an evidence issue or legislative history of a statute that's important to the case, I don't think anyone would complain, so long as the judge told both sides what was found and gave them a chance to comment on it.

Let's assume we have a judge who's familiar with a technical area from another trial. He/she knows from that trial that there is a technical issue which the parties are not exploring to the judge's satisfaction. Does the judge have to sit on his/her hands and ignore that prior knowledge? Does he/she raise it with counsel in chambers and let them decide how to proceed? Does he/she appoint a court expert to advise the judge on the issue? Judges can do some technical/scientific research -- I see it fairly frequently in appellate cases and would assume trial courts can do it as well.

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Re: news article: BC Judge questions latent prints

Post by Steve Everist » Mon Oct 28, 2013 9:35 am

L.J.Steele wrote:Don't dis tax lawyers, Steve E.,...
I didn't.
Steve E.

timbo
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Re: news article: BC Judge questions latent prints

Post by timbo » Tue Oct 29, 2013 12:04 pm

[Let's assume we have a judge who's familiar with a technical area from another trial. He/she knows from that trial that there is a technical issue which the parties are not exploring to the judge's satisfaction. Does the judge have to sit on his/her hands and ignore that prior knowledge?
I see nowhere in this judge's experience any training in fingerprint comparison. Perhaps he could have examined the many studies that show that trained fingerprint experts are exponentially more accurate with fingerprint comparisons than lay people - which this judge is clearly a lay person.

Why then he chose to attempt a comparison himself is open for question. I'm not certain of case law in Canada, but I am certain they would have a case similar to R vs Lawless in Australia, or laws similar to the US FRE 702, which quite clearly describe that comparisons should only be undertaken by trained and experienced experts in the relevant field of forensics, with knowledge above that of a lay person.

Also, is it fair for a judge to present technical research that is only against that area of science, whilst completely ignoring the plethora of other research that is in support of that science?

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Re: news article: BC Judge questions latent prints

Post by Pat » Wed Oct 30, 2013 2:12 am

I would expect that the factor most influencing the judge was the fact that the common thread among famous erroneous identifications is that there was only a single partial, distorted latent print identification and no other evidence to indicate guilt in all of those cases. Think Brandon Mayfield, Shirley McKie, or Lana Canen. If cases such as those were in the forefront of his thought process, then I can understand why he felt that a single distorted fragmentary latent failed to rise above the standard of "beyond a reasonable doubt."
The views presented in this post are those of the author only. They do not necessarily represent the views of DoD or any of its components.

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Re: news article: BC Judge questions latent prints

Post by L.J.Steele » Wed Oct 30, 2013 10:50 am

I see nowhere in this judge's experience any training in fingerprint comparison. Perhaps he could have examined the many studies that show that trained fingerprint experts are exponentially more accurate with fingerprint comparisons than lay people - which this judge is clearly a lay person.
Let me rephrase this -- assume that a judge recently presided in a case that had a full Daubert hearing (or in this case its Canadian counterpart) on fingerprint ID with both sides competently providing testimony, studies, etc. Can the judge apply that information in a different case with the same issue, but less or no information being presented on the complexity of the case? Can the judge take notice of the technical testimony in another case? As I read the newspaper articles, the judge alerted both sides to what he was looking at and gave them a chacne to respond -- the prosecutor could have provided supporting studies -- not clear if he/she did so.

On comparisons -- that's what fact-finders do, at least in the U.S. Note this language from the standard Connecticut jury instruction:
Allowing someone to give expert testimony is in no way an endorsement by the court of the testimony or the credentials of the witness.

Such testimony is presented to you to assist you in your deliberations. No such testimony is binding upon you, and you may disregard the testimony either in whole or in part. It is for you to consider the testimony with the other circumstances in the case, and, using your best judgment, determine whether you will give any weight to it, and, if so, what weight you will give to it. The testimony is entitled to such weight as you find the expert's qualifications in his or her field entitle it to receive, and it must be considered by you, but it is not controlling upon your judgment. You are also to consider his or her general credibility in accordance with the instruction on credibility applicable to all witnesses.
http://www.jud.ct.gov/ji/criminal/part2/2.5-1.htm

That's why experts are asked to provide supporting materials like enlargements -- so the jury can look at the evidence and accept or reject the expert testimony. The jury can look at the materials, reject your explanation for any differences, and say, "we don't see the match".

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Re: news article: BC Judge questions latent prints

Post by Terry A. Smith » Wed Oct 30, 2013 11:46 am

In Canada, Regina v. Mohan is the case law which sets parameters for the use of experts in trial testimony.
Expert evidence, … should be admitted based on four criteria. It must be relevant, necessary to assist the trier of fact, should not trigger any exclusionary rules, and must be given by a properly qualified expert.
Relevance is a question of law and so is determined by the judge. Where it approaches the "ultimate issue" of the trial the standard for inclusion must be stricter. To be considered necessary the expert evidence must likely be outside the experience of a judge and jury. In total, the expert evidence should be included where the probative value of the evidence outweighs any prejudicial effect it may cause.

This case appears to be one where the Forensic Identification Specialist did his best to properly bring the evidence to the Court, but was simply undermined. From the “Reasons for Judgment” document, the following can be reasonably determined;
He attended the scene, properly documented the location of the found print, the development technique utilized, and the other steps taken to advance this investigation. Once presented with information (via AFIS) he conducted subsequent work within the methodology and protocols of ACE-V. Absent any conflict of opinion from the peer reviewer on the case, he presumably went forward with his reporting which ultimately lead to the charges against the accused. A Fingerprint Analysis Report along with Bench Notes was furnished to the Crown (D.A. equivalent) for disclosure in the case (although the Crown slipped up in not disclosing the Bench Notes until the final hour) . This officer clearly attempted to be as transparent and forthcoming with information as he could.
The specialist’s testimony was also a good example of trying to explain the process in simpler terms. The lack of a central pattern area in the latent was described and the fact that clarity was quite high in and around a delta formation was discussed. The officer further attempted to describe reasons why a particular feature may not look exactly the same between the found print and the known exemplar. This is all good stuff and what we strive for through our training here in Canada.

As an examiner always seeking to improve our collective approach to testimony, and with no disrespect to the RCMP investigator, there are a few factors which I will comment upon;
1) testimony regarding the AFIS portion of the investigation ; the fact that the offender’s print(s) were in an AFIS ought to have been brought forward in a voir-dire as this evidence may be considered prejudicial against the accused . Even though this information is disclosed, testifying to it requires an extra level of caution. Seeking help from the Court on this issue illustrates that you really are on nobody’s “side”.
2) the use, at trial, of fingerprint exemplars pre-dating the arrest of the accused; even though the offence date was 2010-July-07 and the fingerprints used in initial comparison were dated 2010-July-21 , it wasn’t until May 2011 that the officer initiated the ACE-V process. Meaning, there would have been a subsequent arrest and set of prints obtained at some time in 2011. Again the use of the pre-arrest fingerprints carries possible prejudice at trial, as evidence of the poor character of the accused. The post-arrest set of prints should have been introduced into evidence and used for charting and reporting to the Court.
3) in the Analysis Report…he writes “areas on the left side of the impression possess a lower level of tolerance and discrepancies in this area should be minimal” - what I think he is trying to communicate is that the left side presents with higher CLARITY in their reproduction of the depositing friction ridge structure…..therefore the analyst’s own tolerance for any apparent discrepancy in that area should be lower. Ridges don’t have tolerance!
4) testifying as to verifications ; another tricky area - and I would agree with the Judge on this point that the inclusion of evidence of another is inadmissible hearsay. We should not attempt to bolster our own evidence by testifying that it is correct because it is verified. We should testify that we follow a process….we can even describe the process as ACE-V and explain our internal policies on not reporting conclusions without receiving a non-conflicting reveiwer’s conclusion (and let the Court draw their own inferences from that) - I would recommend simply testifying to your own conclusion and seek the court’s assistance if prodded about the results achieved by another. Again, the verification phase details should/would be disclosed in your notes for the case, so should not be a surprise to either the prosecutor nor to the defense.
5) “never made an error” ; there has been much written about the appropriate “concept response” to questions regarding examiner error and error rates. The Specialist undoubtedly did not intend for this response to seem overly confident. Instead I suggest that he wanted to relay that when he has applied the ACE-V process in any identification scenario, thus far, his conclusions have been the same as the conclusions made by other examiners who were faced with the same evidence. When these types of questions arise, the attention should be cast back toward the process itself, the fact that checks and balances are in place through peer reviews and technical case reviews. Once that ground-work is clearly established, the witness is then free to relay details as to his/her own experience – noting again that any time a conflicting conclusion result is discovered, that a resolution procedure or supervisory review is in place to mitigate the possibility of errors making it through to the next stage(s).

I think it’s fair to say that forensic specialists in Canada work diligently to achieve and maintain a level of qualification and expertise which would enable them to “assist the triers of fact” with relevant and properly introduced expert opinion evidence. We can surely improve our skills, but not in a bubble. We still require Crown Counsel to support us by ensuring that they too are prepared; through a thorough pre-trial consultation process, by calling the necessary witnesses, by disclosure of all relevant material to the defense, and by rigorously challenging any concerns about the credibility or reliability of the expert’s opinion or the science in general.

Again, I don’t know the details of this case, except for what has been written or linked to here. My tendency is to trust, contrary to the “troubling aspects” noted by The Honourable Mr. Justice Funt, that no Mayfield or McKie scenario has played itself out here. I’d still love to see the evidence though.

TAS

timbo
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Re: news article: BC Judge questions latent prints

Post by timbo » Wed Oct 30, 2013 12:30 pm

L.J.Steele wrote:
That's why experts are asked to provide supporting materials like enlargements -- so the jury can look at the evidence and accept or reject the expert testimony. The jury can look at the materials, reject your explanation for any differences, and say, "we don't see the match".
I'm afraid I am going to have to completely disagree with you on this point. The jury (and judge) most certainly DO NOT have the responsibility or right to do a comparison and say "we don't see the match" - they are lay people who are not trained to do this (see my previous post).

The jury (and judge) DO have the responsibility and right to look at the testimony given and evidence presented and to determine the weight of the evidence presented and the credentials of the witness - they most certainly should not be making any comparisons themselves. See the quote that was provided from the standard Connecticut jury instruction - thank you for providing this very clear reference material.

To paraphrase someone (I'm not going to 'out' them here), it would be akin to the fact-finder reading a Google search article on medicine, and then telling their doctor what to do because they 'know' what treatment they should be getting.

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Re: news article: BC Judge questions latent prints

Post by Steve Everist » Wed Oct 30, 2013 1:35 pm

timbo wrote:
L.J.Steele wrote:
That's why experts are asked to provide supporting materials like enlargements -- so the jury can look at the evidence and accept or reject the expert testimony. The jury can look at the materials, reject your explanation for any differences, and say, "we don't see the match".
I'm afraid I am going to have to completely disagree with you on this point. The jury (and judge) most certainly DO NOT have the responsibility or right to do a comparison and say "we don't see the match" - they are lay people who are not trained to do this (see my previous post).

The jury (and judge) DO have the responsibility and right to look at the testimony given and evidence presented and to determine the weight of the evidence presented and the credentials of the witness - they most certainly should not be making any comparisons themselves. See the quote that was provided from the standard Connecticut jury instruction - thank you for providing this very clear reference material.

To paraphrase someone (I'm not going to 'out' them here), it would be akin to the fact-finder reading a Google search article on medicine, and then telling their doctor what to do because they 'know' what treatment they should be getting.
Here are a couple of previous threads; one started by L.J.Steele and one I started:
http://clpex.com/phpBB/viewtopic.php?f=2&t=1711
http://clpex.com/phpBB/viewtopic.php?f=2&t=1083

It does seem a little difficult to digest the idea that LPE's may spend an hour or more going over their qualifications and method/process that allow them to be considered an expert, and then hand over a latent and known print to the jury, essentially saying "have at it." However there are certain responsibilities that the prosecution has regarding how their witnesses (in this case, LPE's) present their evidence so that it does help educate the jury. If done well, I don't think access to the original materials is quite as detrimental. I think Glenn explains it well in his response in the second post I linked above. All except the "Go Steelers" part...
Steve E.

ER
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Re: news article: BC Judge questions latent prints

Post by ER » Wed Oct 30, 2013 2:34 pm

.....especially with the research that demonstrates how often the untrained eye gets it wrong.

Tangen, J. M., Thompson, M. B., & McCarthy D. J. (2011). Identifying fingerprint expertise. Psychological Science, 22(8), 995–997.
http://mbthompson.com/wp-content/upload ... ce2011.pdf


(PS. Isn't it fun actually having more research to back us up now?)

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Re: news article: BC Judge questions latent prints

Post by Big Wullie » Thu Oct 31, 2013 6:53 pm

Personally I think every judge in the world should be well versed in the McKie Enquiry conclusions:

http://www.thefingerprintinquiryscotlan ... gh_res.pdf

Page 610 the judge quoted from: http://www.thefingerprintinquiryscotlan ... gh_res.pdf

I would say that Brandon Mayfield is mentioned at 611

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Re: news article: BC Judge questions latent prints

Post by Iain McKie » Mon Nov 04, 2013 3:35 am

After the ‘Fingerprint Inquiry Scotland’ was published I hoped that in some small way its recommendations would be of help to the majority of experts across the world who believed that science and integrity were paramount to their profession. I will never forget how the collective support of Pat Wertheim, David Grieve, Ed German, Les Bush, Arie Zeelenberg, Allan Bayle and other experts across the world saved my daughter from the failures of what was arguably an arrogant UK system.

This latest Canadian case however warns us that much still needs to be done. I penned this letter to the ‘Vancouver Sun’ after their latest article.
‘Living as I do in Scotland I have just come across your article. ‘Ian Mulgrew: B.C. Supreme Court judge breaks protocol by introducing his own research’. (The Vancouver Sun: 24th October)

As the father of Shirley McKie whose experiences at the hands of the Scottish Justice System prompted the 'Scottish Fingerprint Inquiry', to which Judge Funt referred in his judgement, I was appalled by your correspondent’s assessment of the judge’s behaviour.

My daughter’s 12 year fight for justice came about because of the very arrogant and institutionalised culture exhibited by the fingerprint expert and the legal teams in this case.

Thank God that Judge Funt had the courage and the wisdom to do some research of his own given that both prosecution and defence had failed the victim, accused and court by their unprofessional research and presentation to the court.

Having visited Canada on a number of occasions to present the lessons to be learned from my daughter’s case at forensic conferences I am fortunately aware that many of your experts have learned the lessons of the past and have updated practice and procedures to take account of the findings of the Scottish Fingerprint Inquiry.

Congratulations to Judge Funt on performing his ‘gatekeeper’ role effectively and ensuring that a potentially innocent person did not go to jail.

To hell with ‘protocol’ when someone’s very life could be at stake.

As Scotland’s national poet Robert Burns has written, ‘There’s nane ever fear’d that the truth should be heard but they whom the truth would indite.’’
The spectres of Shirley McKie, Brandon Mayfield and the many others failed by expertise still continue to haunt our justice systems. Only the foolish or dishonest will ignore this. Thankfully it appears as if most of those contributing to this forum are only too aware of the responsibility they carry.
As always my thanks to all experts who have supported Shirley over the years.

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