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The Sixth Amendment to the United States Constitution provides that ‘‘[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.’’ Over the past seventy-five years, the contours of this constitutional right have expanded dramatically. Originally, the Sixth Amendment simply ensured that the defendant in a federal criminal case who could afford to hire counsel would be entitled to appear through a lawyer, rather than being forced to defend himself. But beginning in the early 1930s, and expanding over the next three decades, the U.S. Supreme Court and state supreme courts came to require the government to provide lawyers to the vast majority of criminal defendants who could not afford to hire a lawyer. As other aspects of criminal law and procedure have become increasingly complex, the need for counsel has grown correspondingly. Moreover, the greater complexity of constitutional criminal procedure—for example, the intricate rules governing the admission of evidence and appropriate jury instructions—means that defendants need not only a lawyer’s physical presence; they need effective assistance. Much of the doctrinal development of the past twenty years, then, has focused not on when a lawyer must be provided—a question largely answered by the 1980s— but on how a lawyer must perform in order to realize the Sixth Amendment’s guarantee.
The Sources of The Constitutional Right to Counsel
The constitutional right to counsel has its roots in four separate constitutional provisions. The most explicit of these is the Sixth Amendment, quoted above. Like the rest of the Bill of Rights, the Sixth Amendment applied originally only to criminal prosecutions brought by the federal government.
As with most of the other provisions dealing with the criminal justice process, however, the Sixth Amendment came to be ‘‘incorporated’’ against the states through a second constitutional provision—the due process clause of the Fourteenth Amendment. In a series of cases beginning in the 1930s (Palko v. Connecticut, 302 U.S. 319 (1937)), the Supreme Court held that provisions of the Bill of Rights that were ‘‘implicit in the concept of ordered liberty’’ and thus necessary for a trial to be fundamentally fair were to be applied in state-court proceedings as well. In Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court held that the Sixth Amendment’s guarantee of counsel to indigent defendants was so fundamental and essential to a fair trial that the due process clause required states to provide counsel to all indigent defendants in felony cases.
In addition to the Sixth Amendment–based right, the Supreme Court has found a right to counsel within the Fifth Amendment’s privilege against self-incrimination (also made applicable to the states through incorporation). In Miranda v. Arizona, 384 U.S. 436 (1966), the Court held that an individual who is taken into police custody ‘‘must be clearly informed that he has the right to consult with a lawyer and to have that lawyer with him during interrogation’’ since otherwise he may be unable to protect his right not to be a witness against himself.
Finally, the equal protection clause of the Fourteenth Amendment has been held to require the appointment of counsel for indigent defendants in first appeals as of right following their convictions (Douglas v. California, 372 U.S. 353 (1963)). The precise analytic contours of the equal protection right to counsel are somewhat fuzzy, perhaps because the cases applying the equal protection clause to the criminal justice process arose largely during a period when the Warren Court seemed to be moving toward treating wealth as a quasi-suspect classification. The Burger and Rehnquist Courts have repudiated that position, but they have left Douglas and Griffin v. Illinois, 351 U.S. 12 (1956), in place. In the end, the equal protection rationale seems mostly to reflect the Court’s discomfort in using the due process clause to require the appointment of counsel on appeal when the Court had declined to hold that the due process clause requires providing appeals in the first place (see, e.g., Martinez v. California, 526 U.S. 152, 161 (2000), reiterating that ‘‘the Sixth Amendment does not apply to appellate proceedings’’).
A Framework for Thinking about When The Constitutional Right to Counsel Attaches
While both the Fifth Amendment and the Sixth Amendment contain guarantees of the right to counsel, their applications differ significantly along two important dimensions. First, the Fifth Amendment right is spatially limited, while the Sixth Amendment right is temporally limited. Second, the Supreme Court treats waiver of the Fifth Amendment right to counsel far less skeptically than it treats waiver of the Sixth Amendment right to counsel.
Almost always, Fifth Amendment right-tocounsel issues arise in the context of a defendant’s attempt to suppress evidence: the defendant claims that an incriminating statement was taken either without her being informed of her right to a lawyer or in disrespect of her invocation of that right. The Fifth Amendment right applies only to government-civilian interactions in particular places: it applies to ‘‘custodial interrogation.’’ Thus, the question whether the Fifth Amendment right to counsel has attached depends, first, on whether an individual is in custody and, second, on whether she has been subjected to interrogation.
With respect to the former question, a suspect is not in custody—and, therefore, is not entitled to her Fifth Amendment right to counsel—if she is merely briefly detained against her will by the police. Instead, a person is only in custody if she is under arrest or if a reasonable person in the suspect’s situation would understand herself to be subject to restraint comparable to that associated with a formal arrest (Berkemer v. McCarty, 468 U.S. 420 (1984)). With respect to the matter of interrogation, this requirement is met if the suspect is formally questioned or is subjected to words or actions that the police should know are likely to elicit an incriminating response (Rhode Island v. Innis, 446 U.S. 291 (1980)).
Assuming that the appropriate Miranda warning is given and the suspect understands her rights, as a practical matter the government is free to question a suspect in the absence of counsel unless and until the suspect affirmatively and unambiguously invokes her right to counsel (Davis v. United States, 512 U.S. 452 (1994)). If the suspect later claims that her statements should be suppressed, the government need prove waiver only by a preponderance of the evidence (Colorado v. Connelly, 479 U.S. 157 (1986)), and such waiver need not be explicit; it may be inferred from the suspect’s actions or words (North Carolina v. Butler, 441 U.S. 369 (1979)).
By contrast, once the Sixth Amendment attaches—a subject addressed in the remainder of this section—there is a heavy presumption against waiver. Indeed, although the Supreme Court has recognized a constitutional right to self-representation (Faretta v. California, 422 U.S. 806 (1975)), an entitlement that involves waiving the right to counsel, it has erected barriers in the way of exercising that right of self-representation that depend on the assumption that few defendants would choose to waive the assistance of a lawyer; and the Court has expressed the view that courts should aim at preserving the sanctity of the attorney-client relationship, rather than freely permit its waiver (Patterson v. Illinois, 487 U.S. 285 (1988)).
Instead of being spatially limited, as the Fifth Amendment is, the Sixth Amendment right is temporally limited: a literal reading of the amendment’s text means that it comes into play only once a ‘‘criminal prosecution’’ has begun. Thus, for example, arrest alone is insufficient to trigger the Sixth Amendment right to counsel. In Brewer v. Williams, 430 U.S. 387 (1977), the Supreme Court explained, that ‘‘[w]hatever else it may mean, the right to counsel granted by the Sixth and Fourteenth Amendments means . . . that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him—‘whether by way or formal charge, preliminary hearing, indictment, information, or arraignment’’’ (quoting Kirby v. Illinois, 406 U.S. 682 (1972)).
Although the Sixth Amendment right to appear through a lawyer applies to all criminal cases—as the Supreme Court long ago observed in Powell v. Alabama, 287 U.S. 45 (1932), if in ‘‘any case’’ a court were ‘‘arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of . . . due process in the constitutional sense’’—the Sixth Amendment entitlement to appointed counsel for indigent defendants is more limited. Gideon requires the appointment of counsel in all cases where the defendant is charged with a felony, but Argersinger v. Hamlin, 407 U.S. 25 (1972), and Scott v. Illinois, 440 U.S. 367 (1979), require the appointment of counsel in misdemeanor cases only if the defendant is actually sentenced to imprisonment. As a practical matter, this means that a trial judge who anticipates any possibility that she will wish to sentence a misdemeanor defendant to prison in the event of his conviction will appoint counsel at the outset of the case, so defendants in cases involving serious misdemeanors will receive appointed counsel.
Once the Sixth Amendment right to counsel has been triggered, and the defendant has either retained or been appointed counsel, the question becomes whether counsel must be present on a given occasion. In United States v. Wade, 388 U.S. 218 (1967), for example, the Court held that because a post-indictment lineup was a ‘‘critical stage’’ of the proceedings, ‘‘the presence of counsel is necessary to preserve the defendant’s basic right to a fair trial.’’ But a substantial number of other government-defendant interactions do not require counsel’s presence. For example, in Gilbert v. California, 388 U.S. 263 (1967), the Court held that defense counsel’s presence was not required during the taking of handwriting exemplars. And in United States v. Ash, 413 U.S. 300 (1973), the Court held that a lawyer is not required when identifications are made through a photo array. Most significantly, although the Supreme Court had held in Coleman v. Alabama, 399 U.S. 1 (1970), that counsel is required at a hearing to determine whether there is probable cause sufficient to justify charging the defendant with a crime, it held in Gerstein v. Pugh, 420 U.S. 103 (1975), that a preliminary hearing to determine whether there is probable cause to detain a defendant pending trial does not require the provision of counsel because it is not a ‘‘critical stage.’’ Thus, while federal and state statutes may require the provision of counsel at bail hearings or preventative detention hearings, the Constitution has not been extended that far. And in a somewhat odd hybrid holding, the Court has required that defense counsel be given notice of state-requested psychiatric evaluations of a defendant, but has refused to hold that counsel have a right to be present during the evaluation (Estelle v. Smith, 451 U.S. 454 (1981)).
Finally, in a different vein, the line of cases stemming from Massiah v. United States, 377 U.S. 201 (1964), and its progeny have held that it is a violation of the Sixth Amendment right to counsel for the government deliberately to elicit incriminating statements from an already charged defendant in the absence of his counsel unless the defendant has knowingly and intelligently waived the right to have counsel present. Massiah has its greatest bite in cases involving undercover officers or informants; clearly in such cases there is no possibility of waiver, so the key question becomes whether the government’s agent actively extracted the incriminating statement or was merely a passive recipient of an unsolicited statement.
Once a trial has begun, a defendant is entitled to the continued presence of counsel throughout the trial, including at sentencing (Mempa v. Rhay, 389 U.S. 128 (1967)). There are some lower court cases, however, that have declined to find a Sixth Amendment violation in a defense lawyer’s absence from the courtroom for some portion of the trial period—finding, for example, that a defendant has not been denied the right to counsel if his attorney is absent only during a part of the case involving evidence against a codefendant or the introduction of stipulated evidence.
Finally, the Sixth Amendment and equal protection clause rights to counsel end after the conclusion of the first appeal as of right. There is no constitutional right to counsel for discretionary appeals, either to state supreme courts or to the U.S. Supreme Court (Ross v. Moffitt, 417 U.S. 600 (1974)). Nor is there any constitutional right to counsel in postconviction processes such as coram nobis (a procedure in which a defendant can present newly discovered evidence) or habeas corpus proceedings (Pennsylvania v. Finley, 481 U.S. 551 (1987); Murray v. Giarratano, 492 U.S. 1 (1992)). This limitation is important for three distinct, but related, reasons. First, defendants often are not given appointed counsel, and thus must proceed pro se, which substantially reduces their likelihood of successfully obtaining discretionary review (if an appellate court does decide to hear a defendant’s case on the merits, it usually appoints an attorney at that point) or post-conviction relief. Second, if a defendant in one of these noncovered procedures is represented by a lawyer, either because he has retained counsel, volunteer counsel, or counsel appointed gratuitously or pursuant to statutory authorization, he does not have a constitutional right to effective assistance. Thus, if his lawyer makes an error—even an error that falls below the acceptable level of attorney performance and that adversely affected the outcome of his case— that error provides no grounds for later reversal. Absent the constitutional right to counsel, a defendant has no right to effective counsel (Coleman v. Thompson, 501 U.S. 722 (1991)). Finally, the first opportunity many defendants will have to establish that they have been denied effective assistance of counsel at trial or in their appeal as of right will often be in postconviction proceedings, either because they were represented throughout the direct appeal process by the lawyer who allegedly was ineffective (and who presumably did not claim his own ineffectiveness as a ground for reversal) or because establishing constitutional ineffectiveness requires an evidentiary hearing. Thus, the fact that defendants are not entitled to counsel to prove that they were deprived of their constitutional entitlement to counsel may effectively foreclose many such claims.
The Right to ‘‘Effective’’ Assistance of Counsel
While ‘‘[i]t has long been recognized that the right to counsel is the right to the effective assistance of counsel’’ (McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970)), it was not until the mid-1980s that the Supreme Court began to articulate a test for deciding when a defendant has been denied the right to effective assistance. The seminal cases were Strickland v. Washington, 466 U.S. 668 (1984), and United States v. Cronic, 466 U.S. 648 Ct. 2039 (1984).
Strickland identified a performance-andprejudice test. Under the performance prong, a defendant must show that his lawyer ‘‘made errors so serious [he] was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment’’ (Strickland, 466 U.S. at 687). The Court announced ‘‘a strong presumption’’ (Kimmelman v. Morrison, 477 U.S. 365, 381 (1986)), that counsel’s performance falls within the ‘‘wide range of [acceptable] professional assistance’’ (Strickland, 466 U.S. at 689). Moreover, the reasonableness of a lawyer’s performance is to be evaluated from counsel’s perspective at the time of the alleged error and in light of all the circumstances, and the standard of review is highly deferential. Courts often find that a defense lawyer’s decision to forego a particular line of inquiry or action was strategic or tactical; even if the decision was ultimately unsuccessful, that failure does not establish inadequate performance. The performance prong of the Strickland inquiry is descriptive. It measures defense counsel’s behavior with reference to the professional norm. As the Court insisted in Strickland, ‘‘the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation,’’ but rather to ask whether the defendant received the level of performance generally observed.
With respect to the prejudice prong, a defendant must show that ‘‘counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’’ That is, a defendant must show that there was ‘‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’’ The Court elaborated that a reasonable probability is ‘‘a probability sufficient to undermine confidence in the outcome.’’ Thus, the prejudice prong is ex post: it looks at the outcome of the defendant’s trial and asks whether the result might have been different in the absence of counsel’s deficient performance. Moreover, while the prejudice prong is generally treated as a descriptive matter—in Kimmelman v. Morrison, for example, the Court found prejudice from counsel’s failure to make a timely suppression motion when, had the evidence been suppressed, there was a reasonable probability the defendant would not have been convicted— the Court has on occasion taken a more normative view. In Nix v. Whiteside, 475 U.S. 157 (1986), the Court refused to find that a defendant had been prejudiced by his lawyer’s threats to reveal his client’s perjury because a defendant has no entitlement to ‘‘the luck of a lawless decisionmaker,’’ and thus the defendant had not suffered cognizable prejudice. And in Lockhart v. Fretwell, 506 U.S. 364 (1992), the Court extended this rationale to hold that a defendant suffered no cognizable prejudice when the lawyer failed to make an objection that, at the time of the defendant’s sentencing, would have resulted in his death sentence being overturned because a subsequent appellate decision overruled the case from which the defendant would have benefited. Thus, even though Fretwell as a descriptive matter was prejudiced by his attorney’s failure to make the objection, this failure did not render the sentence less ‘‘reliable’’ in a more normative sense.
Two other facets of the prejudice prong deserve mention. The first is how prejudice is defined in the vast majority of cases in which defendants plead guilty, rather than going to trial. In Hill v. Lockhart, 474 U.S. 52 (1986), the Court held that in order to satisfy the prejudice prong, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. This articulation of the prejudice prong makes it extremely difficult for defendants to prove ineffectiveness in the plea bargaining process. In reality, the likely effect of most defense attorney shortcomings is not that a defendant pleads guilty instead of going to trial, but that he gets a less advantageous plea bargain than would otherwise be the case. But showing simply that, but for defense counsel’s unprofessional errors, one would have pleaded to a less serious offense or received a lighter sentence does not establish prejudice. The upshot of Hill is that it is exceptionally difficult for a defendant to prevail in attacking a conviction pursuant to a plea on grounds that counsel was ineffective.
Second, in Strickland and Cronic, the Court identified three categories of cases in which prejudice is presumed because an adverse effect on the defendant ‘‘is so likely that case-by-case inquiry into prejudice is not worth the cost.’’ First, courts will presume prejudice in a case of denial of counsel altogether. Second, ‘‘various kinds of state interference with counsel’s assistance’’ can warrant a presumption of prejudice (Cronic, 466 U.S. at 659, and n. 25). Third, ‘‘prejudice is presumed when counsel is burdened by an actual conflict of interest’’ (Strickland, 466 U.S. at 692) and the defendant can show that the conflict actually affected counsel’s performance. Gideon v. Wainwright would be an example of the first category: faced with an outright denial of counsel, a reviewing court will not ask whether counsel might have changed the outcome of a defendant’s trial. Rather, it will simply reverse the conviction and order retrial with counsel. Geders v. United States, 425 U.S. 80 (1976), is an example of the second category: there, a judge unconstitutionally barred defense counsel from consulting with his client during an overnight recess; again, the reviewing court did not ask whether there was a reasonable likelihood that the prohibited consultation would have changed the outcome. An example of the third category is United States v. Malpiedi, 62 F.3d 465 (2d Cir. 1995). There, the court of appeals reversed a defendant’s conviction because his lawyer had represented a key government witness in her first appearance before the grand jury and therefore curtailed his cross-examination of her at trial.
But the Court has made clear that cases of presumed prejudice are relatively rare. Thus, for example, in Burger v. Kemp, 483 U.S. 776 (1987), the Court declined to find an actual conflict of interest even though the defendant was represented by the law partner of the attorney who represented his co-indictee in a capital murder case and, at each defendant’s trial, the defense strategy was to emphasize the co-indictee’s culpability in order to avoid the death penalty. And in several ‘‘sleeping lawyer’’ cases, lower courts have refused to hold that a defense lawyer who has fallen asleep gives rise to a presumption of prejudice without regard to what was occurring when the lawyer nodded off.
Strickland also clearly held that defendants challenging their convictions must establish both inadequate performance and prejudice, and that courts faced with ineffectiveness claims can address the two prongs of the test in either order. Thus, a reviewing court need not determine whether a lawyer’s actions fell outside the bounds of reasonable attorney behavior if it concludes that there is no reasonable probability that the outcome would have been different had the lawyer acted differently.
The Right to Self-Representation
In Faretta v. California, the Supreme Court held that the Sixth Amendment also guarantees the defendant in a criminal trial ‘‘a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so.’’ Faretta was based on three interrelated arguments. First, historical evidence showed that a right of selfrepresentation had existed since the founding. Second, the Court interpreted the structure of the Sixth Amendment, in the light of its English and colonial background, to embody a right of self-representation. The Sixth Amendment protected a defendant’s personal right to make his defense and spoke of the ‘‘assistance’’ of counsel, and to require a defendant to accept counsel he did not want would undermine the amendment’s structure. Finally, Faretta concluded that even though as an objective matter most defendants would receive a better defense if they accepted a lawyer’s representation, a knowing and intelligent waiver ‘‘must be honored out of that respect for the individual which is the lifeblood of the law.’’
The reasons why a defendant might choose to represent himself vary. With respect to the roughly one-in-five defendants who do not qualify for appointed counsel, self-representation might reflect an inability to find a lawyer to take the case for an amount the client is willing to spend. Other times, a defendant may insist on representing himself because he is dissatisfied with the quality of appointed counsel and is unable to persuade the court to appoint a different lawyer. In these cases, the choice to represent oneself might realistically be viewed as not really a choice at all—in the Court’s trenchant phrase in Martinez v. Court of Appeal, 528 U.S. 152 (2000), ‘‘comparable to bestowing upon the homeless beggar a ‘right’ to take shelter in the sewers of Paris.’’ But in other cases, the defendant may have political or personal reasons for insisting on representing himself that are affirmatively served by presenting his own case rather than proceeding through a lawyer.
The right to self-representation is not absolute. First, a defendant must ‘‘‘voluntarily and intelligently’’’ elect to conduct his own defense, and must assert his right in a timely manner. Unlike most rights, where waiver requires a knowing and intelligent relinquishment, a defendant need not be informed of his right to selfrepresentation, and a court must warn him against asserting it. Second, a trial judge may terminate self-representation or appoint ‘‘standby counsel’’—even over a defendant’s objection. (On the other hand, a defendant has no constitutional right to the appointment of standby counsel; see McKaskle v. Wiggins, 465 U.S. 168 (1984)). Finally, in Martinez v. Court of Appeal, the Court held that a defendant has no right to represent himself on appeal.
The Right to Choose One’s Lawyer
From the very outset of its modern Sixth Amendment jurisprudence, the Supreme Court has recognized that ‘‘it is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice’’ (Powell v. Alabama, at 53). Thus, lower courts have reversed defendants’ convictions when they are unreasonably deprived of the ability to be represented by counsel of their choice through such practices as a court’s failure to grant a continuance—see, for example, United States v. Rankin, 779 F.2d 956 (3d Cir. 1986); Gandy v. Alabama, 569 F.2d 1318 (CA5 1978); or failure to admit otherwise qualified lawyers pro hac vice, Fuller v. Diesslin, 868 F.2d 604 (3d Cir.), cert. denied, 493 U.S. 873 (1989)—without asking whether the lawyers who actually represented them were ineffective.
On the other hand, the right to choose one’s lawyer, like most other aspects of the Sixth Amendment, is not unqualified. In particular, a defendant cannot insist on representation by an attorney he cannot afford or who for other reasons refuses to represent him. Nor can a defendant insist on being represented by a lawyer who has a previous or ongoing relationship with an opposing party. In Wheat v. United States, 486 U.S. 153 (1988), the Supreme Court held that although ‘‘the right to select and be represented by one’s preferred attorney is comprehended by the Sixth Amendment,’’ that right can be outweighed by the judicial system’s ‘‘independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.’’ In particular, the Court held that multiple representation not only poses a risk to a defendant’s interest in having a lawyer who acted on his behalf but also can jeopardize ‘‘the institutional interest in the rendition of just verdicts in criminal cases.’’ It thus refused to allow Wheat to waive his right to conflict-free representation in order to retain a lawyer who would otherwise be disqualified.
The right of indigent defendants to counsel of their choice is far more constrained. First, of course, it is constrained by their economic circumstances: they cannot afford to retain a lawyer in the first place, and thus are subject to state-run systems for providing counsel. The two most prevalent are public-defender systems, in which an organization contracts with a jurisdiction to provide representation for indigent defendants, and appointed-counsel systems, in which judges appoint particular lawyers who are otherwise in private practice to represent a given defendant for a specified fee or hourly rate. Within either system, the indigent defendant may have little control over the lawyer assigned to his case. In Morris v. Slappy, 461 U.S. 1 (1983), the Supreme Court rejected the claim that ‘‘the Sixth Amendment guarantees a meaningful relationship between an accused and his counsel.’’ Slappy’s Sixth Amendment claim revolved around the substitution of one staff attorney at the public defender’s office for another. Slappy’s request for a continuance was denied. The Court found that, as long as Slappy was adequately represented by the lawyer who actually defended him at trial, his Sixth Amendment rights had been fully respected. In short, as the Court later explained in United States v. Cronic, ‘‘the appropriate inquiry focuses on the adversarial process, not on the accused’s relationship with his lawyer as such’’ (466 U.S. at 657, n. 21). Thus, the question for indigent defendants devolves back to an ineffective assistance claim, rather than operating as a discrete constitutional protection.
The Supreme Court’s perception of the role and value of criminal defense attorneys has been powerfully shaped by the kinds of cases in which it observes them operating. It was easy, in cases like Powell v. Alabama and Gideon v. Wainwright, to see defense lawyers as the first line of protection for weak and possibly innocent individuals. Today, the Court sees far fewer cases involving arguably innocent defendants, precisely because the provision of lawyers has worked: defendants are acquitted, obtain reversals of their convictions, or agree with the prosecutor on a plea bargain in the vast bulk of criminal cases. Still, the Court’s unwillingness to recognize that many defense attorneys fail to provide their clients with truly competent representation has hindered the full realization of the constitutional promise proclaimed in cases like Powell and Gideon.
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