Failing to call an expert witness in criminal child maltreatment cases may be ‘ineffective assistance of counsel’

By Daniel Pollack

The United States Constitutiodpollackn’s Sixth Amendment  states “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” The phrase that most of us probably cite most often is the last one, “the assistance of counsel.” There are many aspects to demonstrating that an attorney has lived up to a reasonable standard of competence.  The Supreme Court, in Strickland v. Washington, 466 U.S. 668 (1984), has held that the Sixth Amendment does not just guarantee a right to counsel – it guarantees a right to effective counsel. And, the Supreme Court has interpreted this right as extending to all “critical” stages of a criminal proceeding.

For a number of different reasons, ineffective assistance of counsel can be a factor in an alleged wrongful conviction. Examples may be include an attorney’s failure to call a witness, properly investigate the facts of the case, cross-examine a witness, request DNA testing, make objections to a prosecutor’s arguments, acknowledge a conflict of interest, or present an expert witness on behalf of the defendant. This article briefly investigates the last circumstance.

In the child welfare legal arena this issue may come up in child maltreatment cases. For instance, in People of the State of Michigan v. Ackley (2015), Leo Ackley was convicted by a jury of first-degree felony murder and first-degree child abuse following the death of his live-in girlfriend’s three-year-old daughter while in his care. At his trial, the prosecution called five medical experts. They testified that the child had died as the result of a head injury that was caused intentionally. Ackley’s attorney called no experts even though court funding for expert assistance was available and a forensic pathologist might have corroborated the possibility that the girl’s injuries resulted from an accidental fall. The Michigan Supreme Court concluded that that “defense counsel’s failure to engage a single expert witness to rebut the prosecution’s expert testimony, or to attempt to consult an expert with the scientific training to support the defendant’s theory of the case, fell below an objective standard of reasonableness, and created a reasonable probability that this error affected the outcome of the defendant’s trial.”

Indeed, “[c]riminal cases will arise where the only reasonable and available defense strategy requires consultation with experts or introduction of expert evidence.” Hinton v. Alabama, 134 S.Ct. at 1088 (quoting Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 788 (2011)). When is an attorney’s decision not to retain an expert witness a matter of reasonable trial strategy and tactics, and when is it evidence of ineffective assistance of counsel, resulting in a substantial likelihood of a miscarriage of justice? In reviewing a claim of ineffective assistance of counsel for failure to retain an expert witness, an appellate court must evaluate and determine whether the attorney’s decision was within the range of competence demanded of attorneys in similar criminal cases. The reviewing court should avoid the “distorting effects of hindsight” and “judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct” (Strickland, 466 U.S. at 689-90). As the United States Supreme Court has said, sometimes “a single, serious error may support a claim of ineffective assistance of counsel.” Kimmelman v Morrison, 477 US 365, 383 (1986).

dpollackDaniel Pollack is a professor at Yeshiva University’s School of Social Work in New York City and a frequent expert witness in child welfare cases, including child abuse, neglect and dependency cases. Dan is a frequent guest contributor to the Ohio Family Law Blog since 2009. He can be reached at dpollack@yu.edu  or at 212 960-0836.

This article, “Failing to call an expert witness in criminal child maltreatment cases may be ‘ineffective assistance of counsel’” originally appeared in Policy & Practice, June 2017, 25 & 34.

When A Longer Sentence Does Not Equate To A Presumption Of Vindictiveness

Back in June 2016, I wrote a blog entitled, Courtroom Taxes For Utilizing The Jury Box:  A Look At Courts Taxing Defendants With Prison For Exercising Their Constitutional Rights.  Well, almost a year later, the issue of trial tax came up again in State v. Rahab, 2017-Ohio-1401.  This time around though, the Ohio Supremes had their chance to weigh in on the subject of Vindictiveness as it relates to trial tax.

In Rahab, Rahab was charged and indicted for burglary.  Prior to his jury trial, the state offered Rahab a plea deal.  The plea deal required Rahab to plead guilty as charged in exchange for a three year agreed sentence.  Rahab rejected this offer in open court and on the record.  After a jury trial, the jury found Rahab guilty of burglary.  The trial court sentenced Rahab to six years in prison.  Rahab appealed his sentence arguing that his sentence was contrary to law because the trial court had punished him for exercising his right to a jury trial rather than accepting the plea offer.

The First District Court of Appeals rejected Rahab’s argument and found that the trial court had based its sentence on the facts of the case and the defendant’s prior history rather than on his decision to go to trial.  Rahab appealed to the Ohio State Supreme Court which granted Rahab’s discretionary appeal.

To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort.  Bordenkircher v. Hayes, 434 U.S. 357.  A sentence vindictively imposed on a defendant for exercising his constitutional right to a jury trial is contrary to law.  State v. O’Dell, 45 Ohio St.3d 140.

Well that is all good, but how the hell does Rahab prove vindictiveness?

Rahab argued that the court’s statements during sentencing gave rise to an inference that it sentenced him vindictively and that the inference could be rebutted only by an unequivocal statement as to whether the decision to go to trial was or was not considered in fashioning the sentence.  State v. Scalf, 126 Ohio App.3d 614.

In other words, Rahab argued that the court should presume vindictiveness based on the trial court’s statements.

This presumption of vindictiveness comes from North Carolina v. Pearce, 395 U.S. 711.  In Pearce, Pearce successfully appealed his original trial and was granted a retrial.  After the retrial, Pearce was again found guilty.  This time around though, Pearce received a harsher sentence.  The court held that a presumption of vindictiveness arose when the judge imposed a more sever sentence after the second trial.  Id.  The presumption could be rebutted by affirmative, non-vindictive reasons for the sentence on the record.  Id.  According to the Pearce court, due process requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.  Id.

In every effort to not bore you than already accomplished, the Ohio Supremes explained through a series of United States Supreme Court cases on why Rahab’s argument of the presumption of vindictiveness fails.  The Ohio Supremes stated that they shall reverse Rahab’s sentence only if they clearly and convincingly find the sentence is contrary to law because it was imposed as a result of actual vindictiveness on the part of the trial court.  With that logic, the Ohio Supremes held that Rahab had to prove actual vindictiveness.

Let’s see how that goes, shall we?!?

Rahab argued that from the get-go, the trial court was not too excited about him taking his case to trial:

Sir, you understand that the state is offering to do an agreed sentence of three years in prison.  The charge that you are facing now, sir, carries a potential sentence of 2 to 8.  There’s the presumption that you go to prison, okay?  And if you didn’t take the agreed sentence and you were found guilty, it would be up to the court to sentence you.  And the court does not look highly on cases where people don’t take responsibility and accept that they did something wrong if they’re found guilty.

 You understand that?  Meaning it probably would be more.  I’m not going to fool you.  You understand?

Rahab argued that the above statements amounted to a threat from the court.  The Ohio Supremes did not see it Rahab’s way.  This was not a threat said the Ohio Supremes, but rather the trial court ensuring that Rahab understood the choice he was making by going to trial.

Prior to the sentencing hearing, Rahab wrote a letter to the trial court claiming that he had wanted to admit to the crime all along and the he only went to trial because his attorney made him.  When confronted by the trial court as to why he did not just take the plea deal, Rahab answered, “I didn’t think it was worth what I did, three years.”  Below is the trial court’s response:

Eight years.  I told you when they offered you three.  So, you know, I am a little perplexed that you’re saying you didn’t think three was fair and you’re telling me that your attorney made you go to trial.  And now you are telling me that you did it.  You did it, didn’t you, right?

After admitting to committing the burglary, the trial court went on:

Okay.  So I do not understand why you wouldn’t admit to that and plead to that, and you had to have a trial, or why you wouldn’t take the three years because I can sentence you to eight.

 Makes no sense to me.  So I don’t know what you talked about with your attorney, but…too late.  You went to trial.  You gambled, you lost.  You had no defense.  And you even admit that you did it, and yet you put this woman through this trial again.

 You traumatized her by breaking into her house.  And then you had to traumatize her again to relive it and go to trial.  I don’t get it.

When Rahab’s brother addressed the trial court about Rahab’s difficult upbringing, the trial court had this to say:

He went to trial with a prove-it defense.  He had absolutely no defense.  They had his fingerprints.  He gambled, he lost.  I’m sorry, you know right from wrong, but it just does not – it’s like, yeah, now that it’s all over, oh, I’m sorry I got caught, I’m sorry I got – I went to trial and I lost.  Too late.  Too late.  To me, too late.

Sticking with its gambling theme, the trial court went on to state:

Well, guess what, you lost your gambling.  You did this.  You had no defense, and you wouldn’t take responsibility.  You wanted to go to trial.  All right, big winner you are.

The Ohio Supremes found these troubling because no court should give the appearance that it is chiding a defendant for exercising his constitutional right to a jury trial.  BUT, according to the Ohio Supremes, these statements cannot be read in isolation and they must review the entire record.

After reviewing the “entire record” the Ohio Supremes found that the trial court had a great deal of information to consider before it imposed sentence.  The Ohio Supremes went to state that it would have been better had the court’s words not hinted at a frustration with Rahab’s rejection of the plea bargain, but they still did not amount to vindictiveness.

Justice Hoover of the Fourth District Court of Appeals, sitting for Justice Fischer, in her concurring in part and dissenting in part opinion made some noteworthy remarks.

Justice Hoover found the remarks made by the trial court prior to trial as a threat to Rahab.  Essentially, “either take the plea bargain offered by the state and forego your right to a trial or suffer a longer sentence upon a finding of guilty by the jury.”  Justice Hoover felt this remark along with the remarks at the sentencing hearing, which repeatedly mention Rahab’s rejection of the plea bargain and his decision to “gamble” and go to trial, clearly showed that the trial court acted vindictively when it sentenced Rahab.

Based on that, Justice Hoover asked the question, “If the trial court’s actions in this case do not amount to vindictiveness, then what behavior would satisfy that burden?”

Lastly, Justice Hoover found that the majority’s decision may have a chilling effect on the willingness of criminal defendants to exercise their constitutional rights to trial.

I am with Justice Hoover on this one.

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Failing To File An Administrative License Suspension In A Timely Manner

In the Great State of Ohio, including the majority of the State’s in the Union, there is an Implied Consent Law in effect.  Ohio Revised Code 4511.191 provides that any person operating a motor vehicle on public or private property, shall be deemed to have given consent to a chemical test if arrested for Operating a Vehicle under the Influence (OVI).

A typical scenario as to when R.C. 4511.191 is where an individual is stopped by law enforcement, arrested for suspicion of OVI, and then charged for OVI.  At this point, the individual is in the back of the police cruiser thinking of all the ways he/she just screwed up.  Now, prior to asking said individual if he/she is willing to submit to a chemical test, the arresting officer must read to the arrested individual the “Advice to OVI Arrestee” on the back of the BMV 2255 Administrative License Suspension pursuant to R.C. 4511.192.

The long and short of the advice is that if a person refuses to submit to a test they are looking at a 1, 2, 3, or 5 year suspension depending on how many prior chemical test refusals the individual had in the past 6 years.  The majority of the time, the OVI charge is a first time charge for the individual and that person is looking at a 1 year license suspension for refusing the chemical test.

Now if the person decides to take the chemical test and fails the chemical test, that license suspension range is from 90 days to 3 years.  Once again, the driver’s license suspension range depends on the person’s past record over six years.  The majority of the time it is a first time failure of a chemical test bringing about a 90 day suspension.

As you can imagine, by the time a person gets to an OVI attorney, it is usually too late with what to do in regards to either taking or refusing a chemical test.  But fear not, because Ohio Law does allow an individual to appeal an Administrative License Suspension.  Let’s take a look at Toledo v. Ferguson, 2017-Ohio-1394, for some general background on Administrative License Suspensions and how one of the defenses worked to have the Administrative License Suspension vacated.

In Ferguson, Ferguson was stopped, arrested, and charged with OVI on May 7, 2016.  On May 13, 2016, six days after Ferguson’s citation, the arresting officer filed the Administrative License Suspension (ALS) BMV 225 Form.  Ferguson filed an ALS appeal on May 17, 2016, seeking the trial court to vacate the ALS on “all grounds generally, and specifically but not limited to, the violation of 4511.192.”

After the ALS hearing, the trial court denied the ALS appeal.  Soon after, Ferguson filed an appeal with the Sixth District Court of Appeals.  On appeal, Ferguson argued that because the police officer failed to comply with R.C. 4511.192.  The state, however, argued that because only factors of R.C. 4511.197(C) are to be considered for ALS appeals, noncompliance with R.C. 4511.192 does not result in Ferguson’s ALS being vacated.

R.C. 4511.197(C) provides that the scope of an appeal of an ALS for OVI is limited to determining whether one of the conditions is not met.

Below are the four conditions in R.C. 4511.197:

1)         The officer had reasonable grounds to believe offender was driving impaired;

2)        The officer requested a chemical or other test to determine impairment;

3)        The officer properly informed or notified of consequences for refusal to submit to the test; and

4)        The offender refused to submit or test results show the offender was driving impaired.

Hold on tight, I am about to dive into some more statutory analysis!

R.C. 4511.192(D)(1)(a) requires that the arresting officer shall:

Notify the person that:

1)         Their Ohio driver’s license is suspended immediately;

2)        That the suspension will last at least until the person’s initial appearance on the charge;

3)        Which will be held within five days after the date of the person’s arrest or the issuance of a citation to the person; and

4)        That the person may appeal the suspension at the initial appearance or during the period of time ending thirty days after that initial appearance.

But wait!  It gets better!

R.C. 4511.192(D)(1)(d) and (E) require the arresting officer to, within 48 hours of arrest or citation, send a sworn report to the BMV and trial court.

The above notice requirements protect the licensee’s interest in appealing the ALS at his or her initial appearance.  State v. Frame, 1999 Ohio App. LEXIS 2498 (May 24, 1999); Meadows v. Ohio BMV, 71 Ohio Misc.2d 3.

Based on the above, the appellate court found the BMV 2255 was not filed with the court until May 13, 2016, six days after Ferguson was arrested.  This, of course, was not within the 48 hours.  Thus, the appellate court held that the arresting officer failed to comply with R.C. 4511.192 by not filing the BMV 2255 form in a timely manner.

So what does this mean for Ferguson?  Remember, The state argued that because only factors of R.C. 4511.197(C) are to be considered for ALS appeals, noncompliance with R.C. 4511.192 does not result in Ferguson’s ALS being vacated.

In an evidentiary hearing to determine whether to terminate an ALS, the licensee has the burden of showing, by a preponderance of the evidence, that the actions of the BMV were taken in error.  State v. Williams, 2004-Ohio-2453.  For the purposes of an ALS hearing, the officer is acting as an agent of the BMV.  State v. Henry, 66 Ohio Misc.2d 57.  Thus, any action taken by the officer in error can result in the termination of an ALS.  Triguba v. Registrar, 1996 Ohio App. LEXIS 2771 (June 27, 1996).

The state cannot set forth a statutory scheme to suspend a person’s operating privileges, not follow the scheme, and then claim that since such actions are not one of the four issues allowed in an ALS appeal a municipal or county court has no authority to terminate the ALS.  Henry.  Thus, the licensee is relieved of the burden of proving that one of the R.C. 4511.197(C) conditions had not been met where the BMV fails to present prima facie proof the officer complied with all mandates of R.C. 4511.192.  Langen v. Caltrider, 1999 Ohio App. LEXIS 3828 (Aug. 20, 1999).

The appellate court found that the record revealed that the BMV failed to present prima facie proof of compliance with R.C. 4511.192.  Based on the noncompliance, Ferguson should have been relieved of the burden of proving that one of the R.C. 4511.197(C) conditions had not been met.  Thus, Ferguson’s ALS was vacated.

Sometimes it is in the very fine details to get that big win!

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Motor Vehicles On Commercial Properties And Surrounding Curtilage

When it comes to executing warrants, the police don’t mess around.  They want to go through everything and be everywhere to find what they are looking for in a house or building.  And a catch all, if you will, on a warrant is the house or building’s surrounding curtilage.  Basically anything that is surrounding or attached to the house or building.  In State v. Nelms, 2017-Ohio-1446, the Second District Court of Appeals took a look at whether or not a motor vehicle can be curtilage if it is parked at a commercial property.

In Nelms, Dayton Police detectives completed a series of undercover buys at various locations, to include a commercial garage.  Based on their undercover buys, the detectives were able to obtain a search warrant of the commercial garage and the surrounding curtilage.

On the date of the execution of the warrant, Nelms and two other occupants pulled up to the commercial garage and went into the building.  After the Nelms and the other men went into the building, the Dayton Police detectives executed their search warrant.  During the search of the building, one of the detectives ordered the search of Nelms’ vehicle because it was on the property’s surrounding curtilage.

Nelms was arrested and indicted on one count of possession of heroin, one count of possession of cocaine, and one count of possession of marijuana.  Nelms moved to have the evidence found during the search of his vehicle suppressed, arguing that the search was beyond the scope of the warrant.  The trial court overruled Nelms’ motion and Nelms’ appealed.

Curtilage – the area immediately adjacent to a home which an individual reasonably expects is private – is regarded as part of the home itself for Fourth Amendment purposes.  Oliver v. United States, 466 U.S. 170.  The Fourth Amendment applies to commercial premises, and extends to areas that can be equated with the curtilage of a private home.  State v. Trammel, 2d Dist. Montgomery No. 17196, 1999 WL 22884 (Jan. 22, 1999).  This area can include the grounds surrounding the premises, if the premises fit within the traditional Fourth Amendment analysis, i.e., the area is one in which the owner has a reasonable expectation of privacy.  Id.

Surrounding curtilage is used in the warrant simply to describe the area around the building.  Id.  In search warrants, curtilage has been used to designate the area surrounding a commercial property, whether that area be a parking lot or fenced area.  Id.

Although police may be lawfully on the premises with a valid search warrant, the search is limited to those areas which may reasonably contain the items listed in the warrant.  State v. Halczyszak, 25 Ohio St.3d 301.  Any container found on the premises may be searched if it could contain the object of the search.  United States v. Ross, 456 U.S. 798.  Ohio appellate courts have recognized that such a warrant (authorizing the search of curtilage) extends to permit search of motor vehicles located within the curtilage of the premises.  State v. Ballez, 2010-Ohio-4720.  The assumption seems to be that a vehicle should be viewed in the same way as any other personal effects found on the described premises.  Id.

Federal circuit courts have held that a premises search warrant also covers a vehicle that appears to be owned or controlled by the premises owner.  See United States v. Gottschalk, 915 F.2d 1459; United States v. Patterson, 278 F.3d 315.  In cases of warrantless searches on motor vehicles there is no distinction among packages or containers based on ownership.  Wyoming v. Houghton, 526 U.S. 295.  If there is probable cause to search the vehicle, police may inspect passengers’ belongings found in the car that are capable of concealing the object of the search.  Id.

Based on the above, the appellate court found that if there is probable cause to search commercial premises – which is the basis on which a warrant for the premises would issue – a vehicle found on the premises may be searched if police officers have reason to believe that the vehicle is associated with the premises.

With that, the appellate court held that Nelms’ vehicle was covered by the search warrant and upheld the trial court’s ruling.

Tough break for Nelms!  But a very interesting argument to say the least!

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How Improper Venue In A Criminal Trial Can Lead To An Acquittal

If you walked up to a first year law student and asked said law student to explain to you venue, you would most likely see fear in law student’s face before he/she took off in the opposite direction.  The concept of venue and jurisdiction is hammered into every first year law student’s through their Civil Procedure class.  Although venue and jurisdiction is usually taught outside of the criminal context, it is as just important for criminal cases.  So important, as we will discuss in State v. Baker, 2013-Ohio-2398, it can led to an acquittal of criminal charges.

In Baker, Baker was indicted on three counts of trafficking in marijuana, two counts of possession of marijuana, two counts of cultivation of marijuana, two counts of possession of criminal tools, and one count of engaging in a pattern of corrupt pattern, after an undercover narcotics investigation took place.  Said investigation was throughout Hamilton County, Butler County, and Warren County.

This marijuana bust all started with a juvenile named Pagenstecher.  The Warren County Drug Task Force began to investigate Pagenstecher on suspicion of drug trafficking.  During their investigation, the police determined that Pagenstecher’s marijuana supplier was Lopez, who in turn purchased his marijuana from a wonderful couple known as the Lampes.  The Lampes grew their own marijuana for distribution and also purchased marijuana grown by Baker.  Bake had two grow houses with about 350 marijuana plants.

Wanting to get to Baker, the Drug Task Force managed to get Pagenstecher to rat out Lopez, who ratted out the Lampes, who ratted out Baker.  Eventually the Drug Task Force made it to Baker’s warehouse located in Butler County.  It was from there that Baker was arrested.

After a bench trial, Baker appealed his conviction to the appellate court arguing that the trial court erred by convicting him in an improper venue.  Let’s see how Baker made out.

The Ohio Constitution establishes a defendant’s right to a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed.  The Ohio State Supreme Court has stated that “the Ohio Constitution fixes venue, or the proper place to try a criminal matter.”  State v. Hampton, 2012-Ohio-5688.  Establishing the correct venue is imperative in order to give the defendant the right to be tried in the vicinity of his alleged criminal activity; the need to have venue is to limit the state from indiscriminately seeking a favorable location for trial or selecting a site that might be an inconvenience or disadvantage for the defendant.  State v. Meridy, 2005-Ohio-241.

The standard to establish venue is whether appellant has a significant nexus with the county where the trial was held, as determined by whether one or more of the elements of an offense occurred in the county in which the charge is brought.  State v. Stone, 2008-Ohio-5671.  Due to this, and pursuant to R.C. 2901.12, the trial of a criminal case in Ohio shall be held in a court having jurisdiction of the subject matter, and in the territory of which the offense or any element of the offense was committed.

Although venue is not a material element of any offense charged, the state must nonetheless prove beyond reasonable doubt that the crime charged was committed in the county where the indictment was returned and the trial held, unless the issue of venue is waived by the defendant.  Meridy.  A conviction may not be had in a criminal case where the proof fails to show that the crime alleged in the indictment occurred in the county where the indictment was returned.  Hampton.

The venue statute provides that when an offender commits offenses in different jurisdictions as part of a course of criminal conduct, venue lies for all the offenses in any jurisdiction in which the offender committed one of the offenses or any element thereof.  R.C. 2901.12.

The state, in Baker’s case, alleged that Warren County was the proper venue because Baker engaged in a pattern of corrupt activity within Warren County.  This was based on R.C. 2923.32 which states, “no person employed by, or associated with, any enterprise shall conduct or participate in, directly or indirectly, the affairs of the enterprise through a pattern of corrupt activity or the collection of an unlawful debt.”

Through the indictment, the state was alleging that Baker directly or indirectly conducted or participated in corrupt activity with a group of persons associated-in-fact to traffic marijuana in Warren County.

To support its claim, the state produced evidence that Baker sold marijuana to the Lampes, that the Lampes sold marijuana to Lopez, that Lopez sold marijuana to Pagenstecher, and that Pagenstecher sold marijuana in Warren County.  Thus, an element of engaging in a pattern of corrupt activity occurred when Pagenstecher sold marijuana in Warren County thereby providing venue in Warren County.

The appellate court, however, was quick to point out that the state failed to prove beyond a reasonable doubt that Baker was direct or indirect participant in the corrupt activity of a group of persons associated-in-fact conducting the affairs of an enterprise in Warren County.  To further its point, the appellate court pointed out that the state did not prove that the marijuana that Baker sold to the Lampes was the same marijuana that was eventually sold in Warren County by Pagenstecher.

After finding that the state failed to prove venue beyond reasonable doubt, the appellate court went on to state that a judgment of acquittal is to be entered when the state fails to prove venue, and that such acquittal was a final verdict as that term is used in R.C. 2945.67. State v. Hampton, 2012-Ohio-5688.  Thus, double jeopardy is attached and bars the State of Ohio from prosecuting Baker on the alleged charges.

While reading the facts of the case, I found the whole “he sold weed to this guy, and that guy sold weed to this guy, and that guy sold weed to this guy” to be very weak.  That is up there with Adam Sandler’s singing in his hit song Mel Gibson, “I know a guy, who knows a guy, who knows Mel Gibson!”

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