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Freddie Gray: Trial Implosion! Medical Examiner first believed injury was accident

Freddie Gray: Trial Implosion! Medical Examiner first believed injury was accident

Prosecutors reveal for first time that Medical Examiner last year told investigators Gray’s injury was an accident

In what would be a shocking turn of events in any trial other than one brought by Baltimore State’s Attorney Marilyn Mosby, state prosecutors have for the first time introduced into court evidence that medical examiner Carol Allan had at one point believed Gray’s death was an accident, reports the Baltimore Sun.

This disclosure was made on the fifth day of the “Freddie Gray” trial of van driver Officer Caesar Goodson, who is charged with depraved-heart murder among other charges in Freddie Gray’s death, and only after the lengthy previous “Freddie Gray” trials of Officer William Porter and Officer Edward Nero.  Porter’s jury trial ended in a hung jury, and he is scheduled to be re-tried. Nero’s bench trial ended in an acquittal.

In her own testimony earlier this week Dr. Allan told the court that “The word ‘accident’ never crossed my lips to anyone, other than to say, ‘This is not an accident.'”  Allan has claimed that she always believed Gray’s injury and death to have been a homicide, not an accident.  Allan gave similar testimony in the prior Freddie Gray trials of Officers William Porter and Edward Nero.

Today, however, prosecutors introduced new evidence, for the first time, indicating that during a meeting with police investigators last year Allan had suggested that Gray’s death was an accident.

Trial Judge Barry Williams ruled that he would allow this new evidence to be admitted despite the fact that it was facially inadmissible.  He made this remarkable decision in an effort to “fashion a remedy” for the fact that prosecutors have on numerous occasions concealed exculpatory evidence from the various “Freddie Gray” trial defense teams, despite a legal duty to disclose such exculpatory evidence in discovery.

After the most recent example of the state’s failure to disclose exculpatory evidence, made on the morning of the first day of the current trial of van driver Officer Caesar Goodson, Judge Williams ordered prosecutors to go back to their case files and search for any additional exculpatory evidence that should have been disclosed.

Presumably as a result of this effort, and the consequences the prosecutors might incur should yet another failure to disclose later be discovered, Chief Deputy State’s Attorney Michael Sachtzow said that they had just come across the notes of Detective Dawnyell Taylor that record medical examiner Allan initially believing that Gray’s injury was an accident.

The “review” by prosecutors also revealed additional, but probably not as meaningful, failures to disclose other potentially exculpatory evidence, including conflicting statements from police officers that had interviewed Donte Allen, who had ridden in the van with Gray, as well as a proffer agreement that prosecutors had taken to a meeting with Allen (that meeting being the one not disclosed to prosecutors until the eve of this trial, and then only by Allen’s defense attorney rather than by prosecutors).

–-Andrew, @LawSelfDefense


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Comments

This rolling travesty circus should end soon. Should Baltimore burn to the ground there is but one person to blame.

Since almost everything the PERSECUTION seems to be presenting is FALSE the “malicious prosecution” suit seems to have REALLY long legs ! ( only a little sarc )

More evidence of malicious prosecution.
More evidence of professional, moral and ethical bankruptcy.

When will Mosby be disbarred?

One thing I am still not clear is why this evidence is not “factually inadmissable”. Seems cut and dried to me.

    Hearsay, perhaps.

    Even so, it should nevertheless be admissible if for no other reason than to impeach Allan’s contrary testimony on the witness stand.

    But because of Judge Williams’ gag order our only source of information is the media, and the media din’t dig in on that issue.

    –Andrew, @LawSelfDefense

      holdingmynose in reply to Andrew Branca. | June 15, 2016 at 2:26 pm

      The media are probably incapable of understanding the issue.

      Ragspierre in reply to Andrew Branca. | June 15, 2016 at 2:50 pm

      Sometimes, I let hearsay go without objection. If it helps my case more than it hurts, why would I fight it?

      And there is no “automatic” prohibition to hearsay.

      Heh…!!!

        CalFed in reply to Ragspierre. | June 15, 2016 at 3:12 pm

        Unless I’m misreading the situation, the defense not only allowed the hearsay to come in…they introduced it themselves as evidence

        Ragspierre in reply to Ragspierre. | June 15, 2016 at 3:17 pm

        “Today, however, prosecutors introduced new evidence, for the first time, indicating that during a meeting with police investigators last year Allan had suggested that Gray’s death was an accident.”

        As I read this, the state did this because Williams put their arms behind their back WRT withholding exculpatory stuff. “Homework”…

          CalFed in reply to Ragspierre. | June 15, 2016 at 3:36 pm

          You could be right.

          The Baltimore Sun article advises that the Judge ruled that it could be admitted and I assumed that it would be, based on a defense motion.

          The article doesn’t definitely identify who the moving party was.

      stevewhitemd in reply to Andrew Branca. | June 15, 2016 at 3:02 pm

      Andrew: can we not get you accredited as media? “Chief Trial Reporter for Legal Insurrection?”

      That Allan said she thought it was an accident is hearsay if the statement “she thought it was an accident” is entered into evidence. But if the statement “she said she though it was an accident” is entered into evidence that is not hearsay. ( To clarify, if they are not asserting that “she thought it was an accident” but only that she said that it is not hearsay. )

      I thought this was common enough to be a routine ruling by a judge.

      He might be referring to some type of preparation omission ( for example lack of discovery or lack of foundation ). It seems strange that the prosecution is the one asking the questions around this issue. I would think it’s the defense.

      Maybe the media just has it wrong.

        Ragspierre in reply to RodFC. | June 15, 2016 at 5:49 pm

        Wrong. Unless any of what you just said comes in as an exception, it’s ALLLLLLLL hearsay.

      myiq2xu in reply to Andrew Branca. | June 15, 2016 at 7:37 pm

      Prior inconsistent statement.

      If she wasn’t sure it was homicide doesn’t that scream “reasonable doubt”?

        Theoretically, she might have had a rational explanation for changing her opinion. New information, etc.

        The fact that they hid the first “accident” statement and that she lied under oath about never having said it cuts pretty hard against that argument, however.

        –Andrew, @LawSelfDefense

          Gremlin1974 in reply to Andrew Branca. | June 15, 2016 at 8:38 pm

          “Theoretically, she might have had a rational explanation for changing her opinion. New information, etc.”

          Secret meeting with the Mayor and Mrs. Mosbey that has been illuded to, lol.

          Gremlin1974 in reply to Andrew Branca. | June 15, 2016 at 8:39 pm

          Alluded even, to quick on the submit button.

          katasuburi in reply to Andrew Branca. | June 15, 2016 at 11:16 pm

          Didn’t Mark Furman do a similar thing in the OJ criminal trial, lying that he had never used the N word when indeed he had? He was prosecuted for perjury and plead guilty to same.

    Observer in reply to RodFC. | June 15, 2016 at 2:26 pm

    The lawyers for the cops in the civil suit against Mosby must be loving this.

    Char Char Binks in reply to RodFC. | June 15, 2016 at 3:00 pm

    “Facially””.

I don’t see any evidence that this death is the result of malfeasance or criminal activity. It seems like Mr. Gray’s death was the result of his own foolish choices.

Shouldn’t the defense also have the right to re-call Dr. Allan to the stand, so they can cross-examine her on her prior inconsistent statement that was illegally suppressed by the prosecution until today?

    Not at all sure the defense NEEDS this to call Allan as a witness when they present their side of things, but I don’t doubt for moment they’ll certainly call her NOW.

    –Andrew, @LawSelfDefense

      holdingmynose in reply to Andrew Branca. | June 15, 2016 at 2:48 pm

      The defense doesn’t need to recall Allen to convince Judge Williams of the inconsistency (possible perjury?) of her testimony, but they do need to present their defense to the jury of public opinion.

      amwick in reply to Andrew Branca. | June 15, 2016 at 4:54 pm

      There are many things I would call Dr. Allan, Carol is not one of them. As you said earlier, “shameful”.

    Ragspierre in reply to JPL17. | June 15, 2016 at 2:30 pm

    Why? She’s as impeached as she can be right now.

    When you get a gift like this, the temptation is to “make them say it again”, when in reality what you often do is give them a chance to explain it away.

    Sometimes the hardest thing to do is just let the gift stand, and use it to the hilt on closing.

      JPL17 in reply to Ragspierre. | June 15, 2016 at 3:25 pm

      I was only addressing the remedies the court should legally make available to the defense, should they want it. As a matter of trial strategy, however, I agree with you 100%: i.e., re-calling Dr. Allan would be a mistake and would probably violate several of Irving Younger’s 10 Commandments Of Cross Examination.

        Avraham in reply to JPL17. | June 15, 2016 at 9:47 pm

        I’m not a lawyer, nor do I play one on the radio, but your comment sent me to this: Irving Younger’s 10 Commandments Of Cross Examination at UC Hastings College Of The Law, which is fantastic and worth watching in its entirety!

          JPL17 in reply to Avraham. | June 15, 2016 at 11:17 pm

          Thanks for following the cue, Avraham! I first watched that Irving Younger video in or around 1981, when I was a young big city ADA, and it made a HUGE impression on me that I’ll never forget. So full of wit, wisdom, psychology, philosophy, erudition, comedy, and just plain practical information. I’m so glad you found and enjoyed it.

          Barry in reply to Avraham. | June 16, 2016 at 2:20 am

          I watched, could not stop. An entertaining law professor for certain.
          Thanks!

          As a fellow non-lawyer, I found this lecture absolutely riveting. If there’s a Top Ten list for videos that every human being who cares about the law should watch, this one should be second on the list, right under the “Don’t talk to police” video and right above Chris Rock’s “How not to get beat by the police” video.

          Gremlin1974 in reply to Avraham. | June 16, 2016 at 7:37 pm

          I am not the lawyer of the family, but I couldn’t stop watching it. I am gonna send it to my brother to watch as well, he is the lawyer.

      legalbeagle in reply to Ragspierre. | June 15, 2016 at 3:48 pm

      res ipsa loquitur

      I could not agree with you more. There is nothing to be gained by recalling Dr. Allan. Witness impeachment does not get any better than this.

      inspectorudy in reply to Ragspierre. | June 15, 2016 at 3:48 pm

      I agree that the damage is done and to give her another chance to ameliorate her statement could prove to be worse than what they have now. If it were a jury trial then I might change my opinion but since this judge knows how bad the prosecution is about withholding exculpatory evidence, the damage has been done.

If this information was withheld from the defense, doesn’t it warrant a dismissal of this case with prejudice?

Gravity and physics!

    RodFC in reply to EBL. | June 15, 2016 at 4:21 pm

    As I understand it the “common judge” will not dismiss ( unless the prosecution agrees ) because an appeal could reverse the dismissal and you get a new trial.

    If he lets the trial proceed and finds the guy not guilty it’s over.

      CalFed in reply to RodFC. | June 15, 2016 at 6:12 pm

      Rod, I do not think that is correct.

      The Judges’s acquittal is as final as the Jury’s. In fact, in Federal Court, the Judge can reserve his decision on a motion for acquittal until after the Jury has gotten the case. If the jury comes back with a conviction, the Judge can set aside the conviction and enter an acquittal. That decision is final.

        RodFC in reply to CalFed. | June 15, 2016 at 9:24 pm

        I very much think you have not understood. A judge can make a procedural motion for dismissal ( in this case for discovery violations ), be overturned, and have a second trial. The theory is that the person was never in jeopardy.

        If the judge rules on the facts though, another trial cannot be held.

It is a bench trial, so no need to make sure the jury got it. I am pretty sure the judge got it. At this point, he is going through the motions, let the case be presented and then he can rule not guilty.

But this is Baltimore, so anything is possible.

Common Sense | June 15, 2016 at 2:35 pm

I wonder if the Officer’s suing will get more that 6.5 million?

Ann in L.A. | June 15, 2016 at 2:38 pm

Why would contemporary notes from a police detective be “facially inadmissible”?

And, if they are inadmissible, would admitting those into evidence be grounds for appeal?

    CalFed in reply to Ann in L.A.. | June 15, 2016 at 2:54 pm

    The notes are hearsay…what the detective says the good doctor said outside of court.

    There are exceptions to the hearsay rule, but none that would fit this situation. The closest would be the “business records” exception, but I do not believe courts have generally held that interview notes are a “business record”.

    I wonder if the notes were accompanied by a report of the interview and if not, why not.

      Ragspierre in reply to CalFed. | June 15, 2016 at 3:01 pm

      The biggest exception to the hearsay rule is that if you don’t object to it, you waive the objection and it comes in.

      Here, it seems the defense let it come in. SMART MOVE…!!! (Tho we don’t know for sure.)

      RodFC in reply to CalFed. | June 15, 2016 at 5:24 pm

      Unless written notes are barred as hearsay, and I don’t think they are. it’s not hearsay.

      The evidence is not “she thought it was an accident”, but rather “she said she thought it was an accident”. The prosecution is not offering up the fact that she thought it was an accident. What they are offering up is that she said she though it was an accident.

      Generally when a situation like this comes up, a judge will tell the jury to keep in mind that the person just testified that someone said something happened, not that something happened

        CalFed in reply to RodFC. | June 15, 2016 at 5:47 pm

        I believe that had the notes been known to the Defense at the time Dr Allan testified, the detective could have been called to impeach her testimony and the notes could have been used by the Detective to refresh his recollection.

        I do not believe the notes themselves, ordinarily, would be admissible as evidence.

        Ragspierre in reply to RodFC. | June 15, 2016 at 5:56 pm

        Wrong as completely as anything you’ve said.

        When you have a witness who is available, and you have another witness start an answer with, “She said…”, you will draw a sustained objection to hearsay UNLESS you can cure it with an exception. Same as with an answer (or the question that evokes the answer) that states, “Well, I was told…” or “My understanding was from…”

        You can also have hearsay within hearsay, but we won’t get into that…

    CalFed in reply to Ann in L.A.. | June 15, 2016 at 3:05 pm

    Generally the prosecution can not appeal a not guilty verdict. They could request the trial be stopped for an emergency appeal of the judge’s decision to admit the notes into evidence, but how likely is the judge to grant such a request?

    I’m not sure what the standard for such an appeal would be, but the prosecution would probably have to argue that the judge was abusing his discretion in allowing the notes in. Pretty high standard for an appellate issue.

    Even if the higher court ruled that the notes couldn’t come in, how likely is Judge Williams to ignore evidence that he has already ruled is admissible?

    I believe that the prosecution is screwed on this issue and happily so.

    Char Char Binks in reply to Ann in L.A.. | June 15, 2016 at 3:44 pm

    WOULD BE for a jury trial, but the judge trusts himself.

This is a Perry Mason moment, which is not supposed to exist crazy, crazy stuff. So glad this is a bench trial, some dope on a jury really could blow it.

In that photo, Mosby looks like it’s being explained to her that the defense of prosecutorial immunity is lost when the prosecutor becomes involved in the criminal investigation.

So will she be charged with perjury?

    Ragspierre in reply to Milhouse. | June 15, 2016 at 4:25 pm

    Almost certainly not.

    In all my trial work, and in observing a lot of other trials, I’ve never seen a court even sanction a perjurer. I have laid dead-bang contradictory sworn statements with supporting documents before courts…often involving lawyers…and been hurt for the effort.

    It is one of the most discouraging things I have experienced in my brief, but very “interesting” legal career.

    In this instance, Dr. Allen could claim…legitimately…she had no recollection of making the contradictory statements.

    That’s just human memory for you…

    RodFC in reply to Milhouse. | June 15, 2016 at 9:55 pm

    The question is by whom? Mosby?
    Maybe the Maryland State’s Attorney or Nixon’s office will notice and appoint a special prosecutor, but I think not.

    I believe though that the fact that she lied in a trial may hurt her as a witness in other trials, and may cut short her career.

What I think is being lost here is that it may all be over.
Allen’s credibility is shot. So how can they try the other cases?

    Ragspierre in reply to RodFC. | June 15, 2016 at 4:40 pm

    A lot of the charges don’t depend on Dead Fred being a victim of homicide.

    Simple injury and callousness WRT that injury is enough.

And now Mosby’s “retaliatory police transportation” expert has admitted that he can find no evidence of a “rough ride” in the videos.

I suspect the “penalty” here is permitting the defense to put Detective Taylor’s notes directly into evidence, without calling Taylor to the stand.

Prosecution rested (not ARrested).

Before we get to happy about the prosecution’s case going up in vapor and fire, remember what crap the press has been spoon-feeding the public over the last few months. Thousands of people now believe the lie that Freddie was a model citizen, chased down for no reason while owning a legal pocketknife, beaten to death, thrown into a police van where he was killed by being smashed around during the drive, then killed a third time when they dragged him out and beat him some more. Oh, and then was killed in the hospital for a fourth time.

BLM will parrot this nonsense for the next decade.

    JackRussellTerrierist in reply to georgfelis. | June 16, 2016 at 12:15 am

    But what does it matter? BLM would say and do exactly the same things no matter the outcome. Even if all the cops were found not guilty or the charges were dropped for insufficient evidence, the BLM would still want to take all 6 officers out into the public square, horsewhip them, and string them up.

    It is their nature to be perpetually aggrieved. They don’t want good or bad outcomes. They just want milestone events, ANYTHING will do, to use as their reason to rob and loot. They don’t want appeasement – they want to destroy. They’re no different than Hamas, Hezbollah, ISIS, etc., who only want to kill and destroy.

Where’s the flying paper bag of excrement?

Hahaha, the prosecution’s whole theory of the case in their opening statement was the “murder by rough ride” theory. They rested today.

Today WBAL has a news post in which they quote Professor David Jaros of Baltimore Law School stating:

“[The prosecution] rest[s] without evidence about this drive. I find it hard to see how they can convict on the highest charge, depraved-heart murder.”

No shit, sherlock.

Someone ought to get him a platinum-level membership to Legal Insurrection. 🙂

–Andrew, @LawSelfDefense

    Ragspierre in reply to Andrew Branca. | June 15, 2016 at 7:10 pm

    We have those…?!?!?

    To be fair to Jaros, you don’t know how close he has been following the case.

    On another note the Sun is now reporting that the judge said it was hearsay. I don’t think the statement is (inadmissible) hearsay, but they also say Taylors notes were admitted, but that Taylor will not testify. So that may be what the judge means. He doesn’t want to delay the case to get Taylors testimony.

    On another note it says Taylor stopped talking to the prosecution over a fight about the legality of the knife with Bledsoe. That sounds like a smoking — knife ??? in the civil suit. The idea that the prosecution pretty much knew the knife was legal but said it was not is a strong indication of malice.

      Sneaky Pete in reply to RodFC. | June 16, 2016 at 7:46 am

      I think this is a good explanation. Notes = hearsay; testimony of officer who heard it, not.

Breaking news
Trevor Dooley manslaughter conviction overturned. Trevor Dooley to be outraged on bail while awaiting new trial. Trevor Dooley was the black senior citizen who had to use deadly force in self-defense against a larger,younger taller musclebound white man named David James. Dooley and James got into an argument. James sucker attacked Dooley after Dooley was walking away with his hands in the air.James a former USAF Lt. knew a person who held up his hands ceased conflict. James ignored that and attacked a much older weaker,shorter,physically disabled black man,who shot James in self-defense defense. This case showed the racial double standard in the application of SYG. Zimmerman acquitted,Dooley convicted. Let us hope that the DA doesn’t retry the case or a jury frees Dooley.

    Gremlin1974 in reply to m1. | June 15, 2016 at 9:05 pm

    Hey, M1 nice to know you are still healthy and well.

    But I am sorry to say this is old news around here. Also, the reason for Dooley’s new trial is unlikely to lead to a different outcome since there were multiple witnesses that disputed his “SYG” claim. Most likely, if they decide to actually try him again, it will once again lead to conviction. As simple mistake in the jury instructions doesn’t change the evidence.

    Gremlin1974 in reply to m1. | June 15, 2016 at 9:06 pm

    Also, Hardly “Breaking News” since the decision happened back in April.

    mzk in reply to m1. | June 16, 2016 at 2:30 pm

    1. Zimmerman was not SYG, just simple self-defense.
    2. Zimmerman’s life was destroyed.

I am not sure but I believe the business record exception would not apply because the doctor is not an employee of the police department and thus the doctor is under no “business duty” to report. On the other hand, since the police detective was involved in an official investigation, the public duty exception might apply. I don’t think the exception can be used against a defendant in a criminal trial, but I think this hearsay exception is admissible on behalf of a criminal defendant.

Humphrey's Executor | June 15, 2016 at 8:11 pm

The judge needs to put this abuse of process out of everyone’s misery.

Gremlin1974 | June 15, 2016 at 8:49 pm

“Trial Judge Barry Williams ruled that he would allow this new evidence to be admitted despite the fact that it was facially inadmissible.”

I am getting the distinct impression that His Honor has had just about enough of this crap, lol.

Gremlin1974 | June 15, 2016 at 9:07 pm

@Andrew

Can Porter request a bench trial for his trial, or is he stuck with a jury trial because that is what he chose first?

    RodFC in reply to Gremlin1974. | June 15, 2016 at 9:35 pm

    The answer is the first trial never happened.
    Of course the prosecution may come up with a “novel theory”.

    Milhouse in reply to Gremlin1974. | June 16, 2016 at 12:38 am

    The second trial starts from scratch, and under Maryland law he has the right to a bench trial if that is what he wants. Unlike at a federal trial, the prosecution doesn’t get a say in the matter, and the judge’s only discretion is in making sure the defendant understands what he’s asking for and is in his right mind.

      mzk in reply to Milhouse. | June 16, 2016 at 2:32 pm

      Glad to hear it. I’vre always felt that juries should be entirely at the discretion of the defense – civil or criminal.

The defense should make a motion to dismiss because the State did not meet its prima facia case. I doubt that ti will be granted.

    amatuerwrangler in reply to Stan25. | June 16, 2016 at 12:17 am

    Mr25– We are back at the dismissal vs. NG verdict. Unless the judge dismisses with prejudice the state can refile. A full NG finding by the judge ends the game, just as it would if a jury was there to render the verdict.

    The defense might recall the detective to get a restatement that the investigation/reconstruction of the ride showed nothing to make it “rough”; and to provide background for the Donta Allen statement. They they put Allen on – Maybe: He is a possible loose canon as to his being straight as to that interview. Anyway, that’s the defense: No rough ride happened, the ME called it accidental death until the state attorney leaned on her. They rest. They judge hears arguments and renders verdict. This leaves no room for any claims of “legal technicalities”, or a bias judge, etc by the true believers.

    It should also shoot some serious holes in the prosecution’s credibility. After all, they claim a rough ride while all the while their own investigation shows there was none and a witness who took the same ride said there was none. They sat on other exculpatory evidence, to boot.

So what’s the deal on this “extended proffer session” the prosecution had with Donta Allen and his lawyer, apparently on 5-7-15? The prosecution is now claiming that the trip in the van wasn’t discussed? Can Allen’s lawyer, Jack B. Rubin, be compelled by the court to testify about this meeting? He certainly seems to be ethically troubled about the prosecution’s concealment of this meeting. I suspect he would willingly “spill the beans,” if Judge Williams gives him “cover.”

A few notes…

1. there is no such thing as “inadmissible hearsay”…see below

2. all unobjected-to hearsay is admissible, and there is no automatic hearsay objection. If you don’t make it, you waive it

3. LOTS of hearsay comes into the record every day by operation of hearsay exceptions; it’s hearsay but it’s perfectly wonderful evidence

M1 has been comatose for years. He’s only been unconscious for a few months . . .

Correct me if I’m wrong (and I’m sure you will), but the Detective cannot testify as to what the ME said in the interview. (Hearsay) And the contemporaneous notes of the Detective are also not direct evidence or admissable. (Hearsay)

But, if the defense is willing to call the ME to the stand again as part of their case, she can be impeached using the notes.

Damage done. Let sleeping dog lay on the porch.

This just in! Trevor Dooley blah blah blah!

A further note about what happened there. Apparently they had a 40 minute heated bench conference over this.

    ‘Heated’ as in the prosecution is going up in flames, I presume?

    It seems as if Mosby is operating under a ‘Sunk Costs’ fallacy, as she has invested a great deal of her capital into this failing prosecution and is unwilling to admit just the depths to which it has fallen. Perhaps a case of moral bankruptcy is in order to bring her back to reality. I certainly think fiscal bankruptcy is in her future, if the lawsuit against her goes forward.

The judge just denied a motion to acquit. Not a surprise, since there is evidence to convict and at this time it is uncontested. That will change when the defense puts on it’s argument.

The judge did question a rough ride, and called the murder charges thin.

Could you help us understand why it should have been inadmissable?

BTW, what would happen if the only officer convicted is Black?

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