November 1, 2014

TV attack ads sway judges’ rulings, study suggests

11-1-2014 West Virginia, National:

CHARLESTON – Campaign attack ads accusing judicial figures of being soft on crime influence their decisions, according to new research sponsored by the American Constitution Society for Law and Policy.

ACS released the findings Wednesday in a report entitled “Skewed Justice: Citizens United, Television Advertising, and State Supreme Court Justices’ Decisions in Criminal Cases.”

Fueled by the 2010 Citizens United Supreme Court decision allowing corporations and unions to make unlimited independent political expenditures, TV attack ads in state supreme court elections has made justices, including those in West Virginia, less likely to rule in favor of defendants in criminal appeals.

“Money is indeed influencing the way justices are ruling,” said Jeremy Leaming, ACS spokesman. “Courts should be impervious to the political whims of the electorate.”

The report is a compilation of data from more than 3,000 criminal appeals decided in state supreme courts in 32 states from 2008 to 2013.

Leaming said the research shows the more attack ads aired during state supreme court judicial elections, the less likely justices are to rule in favor of criminal defendants.

For example, prior to the Citizens United ruling, West Virginia justices voted in favor of criminal defendants 25.2 percent of the time. After the removal of the ban, justices voted in favor of criminal defendants only 16.6 percent of the time, according to the report.

The West Virginia Supreme Court of Appeals did not respond to requests for comment.

The report further states empirical evidence indicates money often manages to buy judicial elections, with outside groups routinely spending millions to elect candidates who will rule as they prefer on priority issues.

Perhaps the most highly publicized incident of corporate money in state supreme court races transpired in West Virginia.

In 2004, Don Blankenship, the former CEO of Massey Energy, contributed $3 million to the “And For The Sake of the Kids” political action committee, which campaigned against sitting state Supreme Court Justice Warren McGraw. One television ad, in particular, received a lot of attention for calling McGraw out for a ruling that allowed a convicted child rapist to work in a West Virginia school.

While the PAC didn’t campaign for McGraw’s opponent Brent Benjamin, Benjamin did defeat McGraw in the general election.

The research also found that beginning in the 1990s, judicial elections have become more competitive and campaign spending has skyrocketed. Judges, who almost never lost their re-election bids during the 1980s, now find their loss rates higher than those of congressional and state legislative incumbents.

Dr. Joanna Shepherd and Dr. Michael S. Kang authored the report.

Founded in 2001, ACS is a legal organization composed of a network of lawyers, law students, scholars, judges and policymakers. ..Source.. by West Virginia Legal Record

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States Are Prioritizing Prisons Over Education, Budgets Show

10-31-2014 National:

If state budget trends reflect the country's policy priorities, then the U.S. currently values prisoners over children, a new report suggests.

A report released this week by the Center on Budget and Policy Priorities shows that the growth of state spending on prisons in recent years has far outpaced the growth of spending on education. After adjusting for inflation, state general fund spending on prison-related expenses increased over 140 percent between 1986 and 2013. During the same period, state spending on K-12 education increased only 69 percent, while higher education saw an increase of less than six percent.

State spending on corrections has exploded in recent years, as incarceration rates have more than tripled in a majority of states in the past few decades. The report says that the likelihood that an offender will be incarcerated has gone up across the board for all major crimes. At the same time, increases in education spending have not kept pace. In fact, since 2008, spending on education has actually declined in a majority of states in the wake of the Great Recession.

According to the brief, rates of violent crime and property crime have actually fallen over the years, even while incarceration rates have risen. Therefore, it appears that states' more aggressive incarceration policies are behind the higher prison rates.

Michael Mitchell, a co-author of the report and a policy analyst with the Center on Budget and Policy Priorities, suggested that education spending could actually help lower incarceration rates. “When you look at prisoners, people who get sent to prison and their educational levels, [the levels are] typically much lower than individuals who are not sent to prison," he told The Huffington Post. “Being a high school dropout dramatically increases your likelihood of being sent to prison.”

“Spending so many dollars locking up so many people, those are dollars that inevitably cannot be used to provide pre-K slots … or financial aid for those who want to go to college,” Mitchell added.

The report suggests that states' spending practices are ultimately harming their economies, while not making the states especially safer. The authors ultimately conclude that if “states were still spending the same amount on corrections as they did in the mid-1980s, adjusted for inflation, they would have about $28 billion more available each year for education and other productive investments.”

“The types of investments to help people out of poverty and break that school-to-prison pipeline are investments in early education, helping youth stay in school and getting them college campuses,” said Mitchell. ..Source.. by Rebecca Klein

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October 31, 2014

Virginia judge rules police can order a suspect unlock their phone via fingerprint (but not passcode)

10-31-2014 Virginia:

On Thurdsday, a Virginia Circuit Court judge made a fairly groundbreaking and eye opening ruling involving the police asking someone to unlock their secured smartphone. According to the judge, demanding a suspect to provide the passcode to unlock their phone would be unconstitutional, while a suspect providing their fingerprint to unlock their phone would be fair game.

For those living under a rock, iPhone users since the iPhone 5s have been able to secure their smartphones using a fingerprint, a feature Apple calls TouchID. This was seen as a more convenient, but still plenty secure method of locking a smartphone to keep one’s data secure. If you’re a suspect detained police in Virginia, that’s not the case.

This relates back to the case of a man who allegedly strangled his girlfriend and police believe, may have recorded the act with this smartphone. Because his phone was locked with a passcode (and not a fingerprint), the defendant’s attorney argued that it was protected by the Fifth Amendment given that it would require a suspect to divulge knowledge. This is not in the same category as a person’s identity, which includes DNA, handwriting, or — you guessed it — fingerprints, all of which are within the bounds of the law.

While it would be easy to scoff at iPhone (or even Samsung) users who use fingerprint locking on their devices, keep in mind that Apple has a safeguard for anyone who hasn’t unlocked their phone in 48 hours which requires a secondary passcode be entered in the event that TouchID is enabled. That still gives police plenty of time after a suspect has been apprehended to require a fingerprint for unlocking.

How do you guys feel about the judge’s ruling? If you have a Samsung device, will any of you start using passcodes over the fingerprint scanner to secure your phone? Keep in mind, the NSA is watching this post. We kid…. (we think). ..Source.. by Chris Chavez

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Megan's Law 20 years later: Pros and cons of sex offender rules still debated

10-31-2014 New Jersey:

Two decades after a convicted sex offender lured a 7-year-old named Megan into his house with the promise of seeing a new puppy, then killed her, the law that bears her name remains broadly popular, but gets mixed reviews.

Megan’s Law was proposed within days of the murder of Megan Kanka and signed into law on Oct. 31, 1994, just three months after the girl was raped and strangled by the man who lived in the house across the street from her home in Mercer County.

Megan’s Place, a memorial park for Megan Kanka, was created on the site of the house where her killer lived in Hamilton Township.

Prosecutors and victims’ activists praise it. Defense lawyers and civil rights activists say it labels people as dangerous who pose little danger to society and was enacted in a wave of public outrage. There is scant evidence, they say, that it has done any good.

Still, the law, and others like it, have been enacted by all 50 states and the federal government, largely as a result of what happened in a quiet New Jersey neighborhood.

The last time anyone saw Megan Kanka alive was late in the day on July 29, 1994. She was talking to a man who was washing his car in the driveway across the street. The next day, following a frantic search, her body was found in a park about three miles away.

Almost immediately, Jesse K. Timmendequas, 33, was arrested and confessed. Only then did Megan’s family and neighbors learn that the man who lived across the street was a convicted sex offender. And two men who lived in the house with him also had been convicted of sex crimes against children.

The reaction was swift and forceful. In Hamilton Township, Megan’s hometown, a crowd of thousands gathered for a candlelight vigil to show support for a new law that would require neighborhood notification when a sex offender moves into an area.

“Light your candles on your porches and think of my little girl,’’ Megan’s tearful mother, Maureen, said. “Be irate. Write your senators, your representatives, the president. Let them know how angry you are.” Two days later, Megan was buried.

Some lawyers and civil rights activists warned of a lynch mob mentality and said such laws would amount to hanging scarlet letters around the necks of ex-offenders.

But the laws have survived a series of court challenges over the years, and have been expanded to include more offenders.

New Jersey now has more than 15,000 registered sex offenders. About 4,085 of them — including 140 in Bergen County and 383 in Passaic County — have been categorized as moderate to high-risk offenders, and are listed on a state police website.

“We think it has been successful in many ways,” said Laura Ahern, executive director of Parents for Megan’s Law and the Crime Victims Center. “It helps law enforcement, and parents can use it to prevent their child from having a relationship with someone who could victimize them.”

Ray Flood, a Hackensack defense attorney, said the law is appropriate for violent and repetitive sex offenders, “but there are so many defendants who will never re-offend and never need the Megan’s Law stigma. Perhaps on the 20th anniversary of the law, there should be a study to provide more flexibility.”

Megan’s Law requires that convicted sex offenders register with authorities, and that communities be notified when a sex offender moves into the neighborhood. New Jersey’s online registry provides the sex offenders’ names, addresses and photographs along with other identifying information.

It also provides information about the offender’s conviction and a description of the offense, such as, “Subject sexually assaulted a juvenile female,” or “Subject sexually assaulted several boys. Boys ranged in age from 8 years through 15 years.”

Information about sex offenders who are considered a lower risk is available only to law enforcement. Some community organizations — like schools — are also notified.

Soon after it was enacted, Megan’s Law faced a series of legal challenges from public defenders, civil liberties advocates and others who questioned its constitutionality. Federal and state courts have been mostly consistent in rejecting the arguments, ruling that public safety concerns outweigh the privacy or equal-protection claims of sex offenders.

But a sharp debate continues about whether the law accomplishes its goal: notifying the public about sex offenders in their neighborhoods so that people can take precautions, and reducing the likelihood that sex offenders will re-offend.

A 2008 study funded by the U.S. Justice Department concluded that Megan’s Law had no effect on preventing first-time sex offenses or on re-offending. “Despite widespread community support for these laws, there is virtually no evidence to their effectiveness,” the authors wrote.

Lisa Squitieri, who heads the sex crimes unit at the Passaic County Prosecutor’s Office, said Megan’s Law “has been effective for what it was intended to be. It puts the sex offenders on notice and notifies the public. It does that job.”

Ahern, of Parents for Megan’s Law, said it should be expanded to require that information on all registered sex offenders, not just those considered high risk, be available on the Internet.

Sex offenders are assigned to one of three tiers, based on their risk of re-offending. The risk assessment is done by a Superior Court judge. Those put in the top two tiers are placed on the Internet registry.

“Government should not be making a determination of risk,” Ahern said. “Just give the information to the community, and individuals can make their own determination.”

State Sen. Linda Greenstein, D-Mercer, is a co-sponsor of a bill that would do just that. Introduced in March, the bill has been referred to the Senate Law and Public Safety Committee.

“It would do away with the risk-based system,” she said. “It’s effective and fiscally prudent.” If the bill becomes law, she said, the list of offenders on the New Jersey Internet registry would rise from about 4,000 to over 15,000.

Joseph Del Russo, a retired Passaic County sex-crimes prosecutor, said the bill would modernize Megan’s Law and make the information more accessible in an age where people increasingly get their information from the Internet. But he predicted that if the measure becomes law, it will face constitutional challenges.

Megan’s Law, he said, should not be seen as a stand-alone mechanism to deter recidivism. It should be used as part of a comprehensive approach that includes strict probation for sex offenders. Some sex offenders who are on probation are even required to undergo polygraph tests and wear ankle bracelets to monitor their movement, he said.

Opposition comes from many quarters, including Fletcher Duddy, director of the special hearings unit at the state’s Office of the Public Defender, who thinks it would be a mistake to list all sex offenders on the Internet.

“It dilutes the system when you put thousands and thousands of people on the list,” he said. “The public would have no way of determining who poses a serious risk and who doesn’t.”

Overall, Megan’s Law has been counter-productive and should be scrapped, he said.

“The intent of Megan’s Law is good and laudable,” Duddy said. “Reducing sexual-offense recidivism is a noble goal. But in reality, the law doesn’t do that. Making sex offenders pariahs in modern-day society, making it impossible for them to find work or a place to live, actually increases their likelihood of recidivism.”

Many defendants who pose no risk to the community end up being registered as sex offenders, he said. The most common types are those who are convicted of statutory rape, in which an otherwise consensual relationship is defined by law as rape because the victim is under the age of 16, and the offender is at least four years older.

“You have someone who is 19 or 20, having a relationship with someone who is 15,” he said. “The person frankly didn’t even know he was doing something wrong, and even their families knew about it. That is a very, very common fact pattern.”

The older partner in such relationships would then be required to register under Megan’s Law, although he or she has no tendency to sexually victimize others, he said. “Now he is classified as a predator and lumped together with dangerous pedophiles.”

Joseph Rem, a Hackensack defense attorney, agreed.

“I think it is often applied to people who do not represent any threat to the community, and that is unfortunate,” he said. “To those who are listed on the Internet, Megan’s Law is the 21st-century scarlet letter.”

Timmendequas, now 53, was convicted of Megan Kanka’s murder and sentenced to death. His sentence was commuted to life without parole when New Jersey abolished the death penalty in 2007. He remains behind bars in a maximum security prison in Trenton.

Maureen and Richard Kanka have spent the 20 years since their daughter’s death pushing for laws to keep children safe from sexual predators. They still live in the house in Mercer County. Across the street is a quiet, verdant park where the house of her killer once stood. It’s called Megan’s Place. The centerpiece is a hopscotch grid. ..Source.. by KIBRET MARKOS

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Supreme Court of Appeals reverses circuit ruling in sexual abuse case

10-31-2014 West Virginia:

PRINCETON — According to an opinion entered on Thursday, the state Supreme Court of Appeals has overturned a circuit court ruling in the case of a Mercer County man who entered a nolo contendere plea (no contest plea) to one count of sexual abuse in the first degree.

Virgil Eugene Shrader, 68, of Sandlick, was arrested on May 28, 2007, and was indicted on Feb. 8, 2009, on 12 counts of sexual assault, sexual abuse and sexual abuse by a custodian or person in a position of trust to a child. Shrader and the state entered into a plea agreement that he would plea “no contest” to one count of Sexual abuse in the first degree.

The plea agreement also called for Shrader to undergo a psychiatric evaluation by a mental health professional. The court required that if the defendant did not successfully complete the terms of the agreement, he would be considered to be guilty, and would have to register as a sex offender.

It took time for the state to find an appropriate counselor to provide the therapy because Shrader refused “to admit that he was a sex offender.” The court considered having the charges presented in a trial, but the state held to the plea agreement. Shrader stuck to his refusal to admit his guilt until the court considered putting him in jail. But the court didn’t accept his late admission.

“I think you’re making this admission now just to stay out of jail,” according to a quoted passage from the circuit court hearing. “As far as I’m concerned, you lied under oath.”

The appellate court’s majority opinion characterized the case as: “A procedural quagmire because of the manner in which the parties and the circuit court handled the petitioner’s (Shrader’s) nolo contendere plea,” according to the court’s opinion.

The court opinion noted that “the treatment condition became a moving target,” and said that instead of rejecting the plea, “the circuit court, as well as the state, approved the agreement and allowed the petitioner to plead nolo contendere and specifically did not require him to admit to any legal guilt to the crime charged.

The high court found that Shrader has “completed the conditions imposed under the plea agreement, allowing (Shrader) to withdraw his plea and ordering the state to dismiss all the charges.”

In a dissenting opinion, Justice Allen H. Loughry II wrote: “Unlike the majority, I am confident the victim does not feel as if the crime never occurred.” As a result of the court’s ruling, Loughry noted that Shrader can live anywhere he wants to.

“Remarkably, in the face of the defendant’s admission to having sexually abused a minor, the majority is content to allow his conduct to go unpunished,” Loughry wrote. “I would have affirmed both his sentence and conviction.” ..Source.. by BILL ARCHER

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October 30, 2014

'Vigilante justice' leads to prison time in fatal beating of sex offender

10-30-2014 Maryland:

A 20-year-old Reservoir Hill woman was sentenced Thursday to six years in prison for what prosecutors called an act of vigilante justice when she led a group beating of a sex offender that turned fatal. Her father was also sentenced to jail time for his role.

Circuit Judge Timothy Doory said Latiqwa Mayes' frustration that the man, Donald Robinson, had not received a stricter sentence from the courts after breaking into her room at a boardinghouse months earlier did "not justify a call to the community to impose physical, violent retribution."

Joshua Insley, Mayes' attorney, said his client was told that Robinson's conviction in May 2013 for assaulting her roommate would trigger a violation of his parole for a prior sex offense, and he would be off the streets, Insley said.

That never happened, and on Sept. 2, 2013, Mayes spotted Robinson walking down the street in the 800 block of Lennox St. "She's shocked, and that puts this horrible situation in motion," Insley said.

Mayes started yelling, "He raped me. He's a sex offender," attracting the attention of others in the area, police wrote in charging documents. Her father, Willie Mayes, called for someone to stop Robinson, and a group of teens who were in the area playing basketball ran over and held Robinson. Strangers on the street then joined in and kicked and punched Robinson, police said at the time of the arrest, and Latiqwa Mayes pepper-sprayed him.

The incident was captured on city surveillance cameras, which show that Robinson was able to walk away from the scuffle. But he fell ill a short time later and was pronounced dead at a local hospital within 30 minutes. An autopsy found that the beating had exacerbated an existing health problem, Doory said.

Attorneys for Latiqwa and Willie Mays, who both pleaded guilty to second-degree murder in September, said they never intended for Robinson to die.

"They wanted him to never come back, with good reason," said Insley, who said Latiqwa Mayes needed treatment and counseling, not continued incarceration. She has been in segregation in an 8-by-12-foot jail cell for the past 13 months.

But Assistant State's Attorney Tonya LaPolla said the attack went too far and the suspects hadn't shown enough remorse.

Doory said the attack was "an act of vengeance" and "an act of retribution that went too far," and required punishment. He sentenced Latiqwa Mayes to 10 years with all but six years suspended.

Willie Mayes, a military veteran who proudly noted that he had been sober for five years, was sentenced to 10 years in prison with all but two years suspended, with credit for 10 months time he had already served.

"I don't think anyone thought these punches were designed to kill someone," Doory said. "But because of [Robinson's] vulnerable condition, they did kill him."

Kwan Blackburn, 18, one of the teens who ran over to stop Robinson, pleaded guilty to manslaughter and was given a suspended sentence and four years' probation. ..Source.. by Justin Fenton

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ACLU Challenges Miami-Dade Housing Restriction Forcing Former Sex Offenders to Live by Railroad Tracks

10-23-2014 Florida:

Law Causes Many Former Offenders to Become Homeless

The American Civil Liberties Union and the ACLU of Florida filed suit against Miami-Dade County and the Florida Department of Corrections, seeking a permanent injunction against a housing ordinance that is extraordinarily difficult for former sex offenders to follow without becoming homeless. The law prohibits former offenders from living 2,500 feet (almost half a mile) from any building the county labels a "school," a category the county has enforced arbitrarily since the ordinance went into effect in 2010. This restriction has left about fifty former offenders with nowhere to live other than an outdoor area along railroad tracks on the outskirts of Miami-Dade county. Each night, they sleep in chairs, in tents, and under tarps, without running water or shelter from the weather.

"As public policy, the Miami-Dade ordinance is a disaster. It has created a homeless population living outdoors in squalor, while doing nothing to serve public safety," said Brandon Buskey, Staff Attorney at the ACLU's Criminal Law Reform Project. "Disease, exposure to the elements, no drinkable water—these conditions make it extremely difficult to find and maintain stable employment and psychological treatment, which are the only two factors proven to reduce the likelihood of reoffending. We know from decades of research that housing restrictions like Miami-Dade's have no impact on reoffending and, are more likely to increase it."

Finding affordable housing for former offenders is so futile under the Miami-Dade ordinance that probation officers routinely direct supervisees to the railroad tracks, recording the tracks as the person's "address."

"Sending someone just out of jail into homelessness makes no sense, not for the person and not for the public. The Miami-Dade ordinance is not just unworkable, it's unconstitutional," said Nancy Abudu, Legal Director of the ACLU of Florida.

For years, county officials have shuffled former offenders around Miami-Dade. Officials broke up the infamous shantytown under the Julia Tuttle Causeway bridge in 2010, only to create another, lesser known encampment in the Miami neighborhood of Shorecrest. Since officials disbanded that tent city, the area by Miami's railroad tracks has become the only possible location for scores of individuals.

The ACLU of Florida Greater Miami Chapter has assisted in this case. ..To see the Complaint and Other Info about the case.. by ACLU Press Release

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Federal judge dismisses Nebraska inmate lawsuit, saying prisoners not entitled to minimum wage

10-30-2014 Nebraska:

OMAHA, Nebraska — A federal judge has dismissed a lawsuit by a Nebraska prisoner who argued that he should be making minimum wage for his work behind bars.

Stephen Cavanaugh, 23, sued several state prison officials earlier this year, saying that over the past year, he has been assigned to work as a food server, window washer and a prison yard maintenance worker, with his work time varying between six hours and eight hours a day for between five and seven days a week. Cavanaugh, who represented himself in the lawsuit, said he was paid between $1.21 and $2.25 a day for the work.

His lawsuit said he should have been paid minimum wage of $7.25 an hour and asked a federal judge to award him at least $3,400 in wages he should have earned, plus $350 for his legal costs.

"Cavanaugh continues to be employed on the yard crew and is still paid less than minimum wage," he wrote in his complaint. "Therefore, the amount of actual damages continues to rise."

But U.S. District Judge Laurie Smith Camp dismissed the lawsuit Wednesday, saying that while state law sets minimum wage at $7.25 an hour, another state law specifically allows the prison system director to make rules governing the hours prisoners work and how much they're paid.

The judge also noted that language in state law regarding prisoners contemplates the possibility that some inmates will not earn minimum wage. The language says that "inmates earning at least minimum wage" may have their wages withheld to be deposited in a state victim compensation fund.

"Clearly, if Nebraska's legislators intended that all prisoners earn minimum wage, this language would not have been necessary," Smith Camp wrote in her order.

Cavanaugh was sentenced last year to at least six years in prison after being found guilty of two counts of attempted first-degree assault and two counts of use of deadly weapon. Police say Cavanaugh threatened two Grand Island men with a hatchet in July 2012. One of the men had a protection order against Cavanaugh at the time.

Corrections department spokesman James Foster declined comment on the ruling and Cavanaugh could not immediately be reached by phone for comment. ..Source.. by MARGERY A. BECK

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New security system mistakenly flags north Texas dad as sex offender

10-30-2014 Texas:

An unnerving coincidence for a Fort Worth dad who went to visit his child's school in Fort Worth. A new computerized security system alerted staff that he might be a sex offender.

A promotional video from Raptor Technologies shows how it's supposed to work. Parents entering schools have their id's scanned, usually a driver's license, and a printer spits out a pass.

But when Jose Jimenez turned over his Texas driver's license, he got a shocking response. "When they put it into the computer, they say he could not be there because he was a sex offender," said his neighbor, Maria Miranda, who acted as interpreter.

He's not a sex offender. But when the computer searched a nationwide database, it found a close match. A Jose Jimenez listed as an absconder on Arizona's list of registered sex offenders. The Fort Worth Jose Jimenez says he's never even been to Arizona.

The middle names are different, but the height and weight are similar. The CEO of Raptor said the mix-up is partly due to the fact that Arizona does not list dates of birth on the registry. The principal compared the photos, and let Jimenez into the school.

"The system did work," said Fort Worth ISD spokesman Clint Bond. "We got a potential alert. We checked it out. It proved to be false."

Jimenez told us he's not worried, because he knows he's not the person on the list. But he did file a police report, just to make sure his identity had not been stolen by a sex offender -- and to have something on the record should the issue come up again.

Reached by phone Wednesday afternoon, the CEO of Raptor Technologies said that although the system is new to Fort Worth, it is in 12,000 schools in 45 states. Jim Vesterman said Raptor has flagged 15,000 registered sex offenders trying to enter schools. ..Source.. by Delaney Bentley

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