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Old 07-15-2005, 03:46 PM
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bebopp7 bebopp7 is offline
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Default UPDATE Ankram and SIRAK CASE

NORMAN L. SIRAK
ATTORNEY AT LAW
75 Public Square / Suite 800
Cleveland, Ohio 44113
216) 781-2550
FAX (216) 781-6688
www.parolereform.com

To : All Clients and Sponsors
From : Norman Sirak
Re : Progress Report for July 14, 2005

This Progress Report reads slightly different
from most of our
prior progress reports, due to the nature of our
subject. The Public
Defender's class action suit has shifted into its
enforcement phase. This
part of litigation is always a thicket of details. I
have tried to make this
as readable as possible, but the subject is
fundamentally tedious. Still,
the devil generally hides in the fine print. These
details are important to
know, and this is why. The Parole Board is now hard at
work dodging and
belittling into impotency the Ankrom decision. We know
what they did to the
Layne decision. Some of these tactics will be used
against us. We are ready
for them. (Five progress reports per liaison are
enclosed.)

The sexiest subject is the Public Defender's
Motion for Contempt
against the Parole Board. We are saving this subject for
last. One copy (per
liaison) of this Show Cause Motion, with all supporting
documentation, is
enclosed. It is first important to understand how the
Parole Board attorneys
are trying to pick apart Ankrom for weaknesses, and how
they plan to exploit
these weaknesses. Second, you need to understand how the
Parole Board plans
to dodge the meaningful hearing requirement of Ankrom.
These two subjects
are not technically part of the Public Defender's
contempt motion; but, they
are intertwined and provide important clues as to how
the Parole Board and
its attorneys plan to bend and mold Ankrom as they did
Layne.

Perceived Weaknesses in Ankrom

In analyzing Ankrom, we need to recall our
history, namely the
recent Layne decision. Analyzing how Layne was
compromised should provide
clues as to how the Parole Board intends to circumvent
and render hollow the
Ankrom decision. Zebras do not change their stripes.
Parole Board attorneys
have already gone over Ankrom with a fine tooth comb,
analyzing and
dissecting it for weaknesses. Throughout our analysis,
we must keep in mind
the Parole Board's Holy Grail - an issue most dear and
held high above all
others - the preservation of their unfettered
discretion.

Taking Ankrom Sentences Out of Context to Provide an
Unintended Meaning

In Layne, Ohio's Supreme Court was brutal in
its treatment of these
guidelines. Only the very last sentence gives the Parole
Board any comfort.

"We further emphasize, as did the court of appeals in
Randolph, that the
APA, when considering an inmate for parole, still
retains its discretion to
consider any circumstances relating to the offense or
offenses of
conviction, including crimes that did not result in
conviction, as well as
any other factors the APA deems relevant."[1]

The Parole Board embraced this sentence to the
point of behaving as
if the rest of the decision did not exist. This stretch
of logic
demonstrates the measure of their desperation and a
reckless disregard for a
court's authority. It also shows how retaining
unfettered discretion
justifies in their minds any means, fair and foul.

The first of two semi-friendly Parole Board
statements in Ankrom
appears below. Judge Cain makes this statement while
discussing Poluka v.
Adult Parole Authority [2003 Ohio 153] and a 1998 Ohio
Supreme Court
decision, Mayrides v. Ohio Adult Parole Authority, [1998
Ohio App. LEXIS
1865].[2]

"As the Court pointed out in both cases, the
Parole Board retains
discretion on a case-by-case basis as to whether to use
the guidelines."

I suspect that the Parole Board will suddenly
find it convenient to
dispense with using their guidelines - on a case by case
basis and as they
are planning to violate these same guidelines - as a
means for circumventing
the Ankrom decision. A Department of Rehabilitation and
Correction
publication called The Bridge (one copy per liaison is
enclosed) issued by
the Victim Services, states:

"As you can see, the Ankrom decision details
exactly how the
Parole Board should apply their guidelines when looking
at a case. The
guidelines are one tool used by the Parole Board and
they still retain
discretion to consider every piece of information at
their disposal in
making their decisions."

This sleight of hand has monumental obstacles
to overcome. Parole
Board Policy No. 501-36 requires every parole candidate
to be slotted into
the guidelines. This policy statement makes no mention
of the guidelines
operating as one of several tools. In the Layne
decision,[3] there is no
mention of the guidelines operating as one of several
tools. Richard Spence'
s 1st Affidavit to our Court systematically explains how
these guidelines
structure parole decision-making. No other tools are
mentioned as
substitutes for these guidelines. In perfect accord with
Richard Spence's
1st Affidavit and Parole Board Policy 501-36, a Parole
Board Decision Form
immediately slots an inmate into a guideline. We filed
1,500 parole
decisions in our Federal court to confirm the practice
of conducting and
scheduling future hearings in sync with these
guidelines. Nevertheless,
expect this sentence from Ankrom to be given by the
State a totally
unintended meaning.

2nd Ankrom Sentence Quoted Out of Context to Preserve
Discretion

The following Ankrom sentence
appears on page 10 of the
decision.

"The Layne court re-affirmed that the OAPA
[Ohio Adult Parole
Authority] has discretion to consider all the facts and
circumstances
relevant to parole."[4]

In the publication The Bridge, the
Parole Board article
states:

"The Ankrom decision also underscored what the
Supreme Court
stated in the Layne decision, that the Parole Board
retains wide discretion
in its release decisions, once it applies the guidelines
appropriately."
[Emphasis added.]

The clever deception in this sentence consists
of the last six word
s, once it applies the guidelines appropriately. The
Parole Board believes
it simply has to record the correct offense score
somewhere on the decision
form, and its duty under Layne has been satisfied. Only
someone with an
in-depth knowledge of how these parole guidelines work,
would grasp how this
little tweaking of the form totally unravels the core of
Layne's holding,
circumventing its decision while simultaneously
preserving the Parole
Board's unfettered exercise of discretion.

In the Parole Board Decision Form used prior to
Layne, the Offense
Score and its resulting guideline (i.e. the first three
fields) were linked
to the 8th field. Prior to the 8th field, answers are
generated by other
sources and retrieved from the file. For example, the
4th field consists of
the number of months served to date. The 6th Field
consists of the number of
disciplinary infractions. Answers for the first seven
fields on this form
are clerical exercises. The 8th field marks the point
when clerical
notations cease and discretionary decision-making
begins. Previously, the
8th field incorporated the Offense Score into its
calculation. In this
manner, the Offense Score shaped and molded half - and
the most important
half - of the guideline range, which in turn dictated
the amount of time to
be served. The 8th field was also used for making upward
and - allegedly -
downward departures.

When the Parole Decision Form was changed
following Layne, the 8th
field was radically altered.[5] In its amended state,
there is no
calculation resulting in a guideline range. The
relationship between the 8th
field and the 1st field now has been severed. The
Offense Score no longer
shapes the guideline range. Because it has lost its
ability to mold and
shape the guideline range, the Offense Score no longer
enters into the
calculation as to the amount of time left to be served.
Instead,
discretionary decision-making begins with the 9th field
on the revised
Parole Board Decision form, where the criteria shifts
from a guideline range
to any other factors the APA deems relevant. In this
manner, the Parole
Board has reduced the Offense Score - which forms the
heart of the Layne
decision - into a clerical entry. In practice, this
alteration of their
decision form continues to preserve their unfettered
exercise of discretion.

We caught and exposed this cunning trick back
in December of 2003.
The Public Defender's Office has not caught it. In fact,
the Public
Defender's Summary Judgment Motion praised this new form
(see quote on next
page). In Judge Cain's courtroom, the Parole Board is
getting away with this
deception.

Further, neither Judge Cain, nor Ohio's Supreme
Court, endorse the
retaining of unfettered Parole Board discretion. Layne
validates the
opposite position. First, the Ohio Supreme Court finds
that inmates can only
serve time in the guideline matching their conviction.
Next, Layne's last
sentence is concerned with questions relating to release
within the
guideline range dictated by the offense score. Once the
matching guideline
is applied, both Layne and Ankrom limit the exercise of
Parole Board
discretion to benchmarks marking the entry point into
this guideline and the
exit time-line. Between these two points - and nowhere
else - the Parole
Board can exercise discretion in formulating its release
decision.

Ankrom's Meaningful Hearing

Layne gives notice that inmates are entitled to
a meaningful parole
hearing. However, its syllabus (a summary of new case
law) makes no mention
of a right to a meaningful hearing. Judge Cain fills
this void. Ankrom
finds:

"That the plaintiff class is entitled by
contract and by statute
to a meaningful parole consideration that consists of
true eligibility
(rather than mere paper eligibility) and a parole
hearing that complies with
the policies and practices adopted by the OAPA [Ohio
Adult Parole Authority]
after the Layne decision."[6]

The Public Defender's Summary
Judgment Motion states in
pertinent part:

"Rather than propose their own rules and
conditions, Plaintiffs
submit that the policies voluntarily adopted by the
Defendants following
Layne are a reasonable expression of at least the
minimum criteria for
meaningful parole consideration."
* * *
"Defendants have significantly altered their
Guidelines as well.
Attached as Exhibit B is a copy of the current
Guidelines, which were
revised on March 28, 2003 as a result of Layne.[7]

"On September 5, 2003, Defendants (i.e. the
Parole Board) enacted a
major revision of Adm. Code 5120:1-1-07, which governs
the "factors that
shall be considered in a release hearing." Defendants'
changes markedly
increase the number of factors that "shall" [meaning
must] be considered in
a release hearing." Defendants' changes markedly
increase the number of
factors that "shall" be considered at a parole hearing.
Of particular note
is provision 5120:1-1-07(B)(8): "The equivalent sentence
range under Senate
Bill 2, (effective July 1, 1996) for the same offense of
conviction."

"Finally, Defendants have rewritten the
Department of
Rehabilitation and Correction Policy captioned "Parole
Board Hearing
Policy," and adopted a new parole decision sheet form.

"As is abundantly apparent, Defendants have
made sweeping changes
to their parole consideration practices following the
[Ohio] Supreme Court's
decision in Layne. And Defendants (i.e. the Parole
Board) are to be
commended for their efforts to afford inmates meaningful
parole
consideration."

In response to Charles Clovis's June
3, 2005 memo,[8]
Assistant Attorney General Phillip King quoted the
entire above passage with
the last paragraph appearing in bold type.[9] September
5, 2003 is when the
amended Administrative Rule 5120:1-1-07 became
effective. This explains why
it appears in the Ankrom decision. Parole hearings
conducted prior to this
date were flawed because Parole Board Policies were not
yet in force. A
hearing conducted after September 5, 2003 is just fine,
because Parole Board
Policies apply. Phillip King is making the argument that
since September 5,
2003, every inmate received a meaningful hearing. Of
course, Parole Board
practices have not changed. The Layne decision struck
down these practices
and restrained the Parole Board's discretion. Since
September 5, 2003,
Parole Board practices have continued with no
discernable improvement. If a
policy is not incorporated into a practice, the benefits
promised through a
new policy remain illusory. To borrow a phrase of Judge
Cain, these benefits
exist on paper and nowhere else. The premise that
inmates have been
receiving meaningful parole hearings since September 5,
2003 is not just
untrue. This statement constitutes a significant
misrepresentation of a
material fact.

Unfortunately, Mr. Clovis and the
Public Defender's
Office bought into this premise when their Motion for a
Summary Judgment was
filed. In Mr. Clovis's later Motion seeking to hold the
Parole Board in
contempt, he is asking for authority to sit in on parole
hearings to insure
that post-Layne policies are in sync with Post-Layne
practices. He probably
knows about the gap which has developed between their
policies and their
practices. Mr. King is opposing the presence of Mr.
Clovis at parole
hearings. Obviously, Parole Board polices and practices
are not in sync;
otherwise, there would be nothing to hide. Clearly, Mr.
King and his clients
have plenty to hide. The State is quoting statements by
the Public Defender
to convey the impression that inmates are receiving
meaningful hearings. We
anticipate the same argument to be used against us. Of
course, we have never
given the Parole Board any compliments on their new
Parole Decision Form,
their revised Parole Guidelines, or on anything else. We
intend to use our
massive mountain of evidence to demonstrate the widening
gap between Parole
Board policies and Parole Board practices. In short, if
Mr. King uses these
arguments against us, we are prepared and we are
confident of overcoming
them.

Previewing Evidence Highlighting the Gap between
Policies and Practices

Fortunately, we do not need to be
attending parole
hearings to prove the existence of this gap. You never
stopped sending us
your parole decisions and we never stopped entering them
into our computer.
There has not been any behavior modification on the part
of the Parole
Board. These decisions reveal the following.

(1) With one exception, none of the new questions made
mandatory for a
release hearing by the revised Administrative Rule
5120:1-1-07 - such as an
inmate's readiness to assume obligations and their
employment history and
occupational skills - has yet to be incorporated into
the Parole Decision
form.[10]

(2) The one exception is the equivalent S.B.2 sentence
range. We have
entered 153 parole decisions decided after September 5,
2003 into our data
base, where this field has been left blank. We also have
decisions where
this field is being abused. Instead of inserting the
matching S.B.2
sentence, they insert an upward departure S.B. 2
sentence which matches the
Parole panel's upward departure.

(3) Again, we have 153 parole decisions entered into our
data base which
took place after September 5, 2003. Of these decisions,
50 (or 32%) involved
a parole candidate already over their maximum guideline.
These inmates all
received additional time. Another 27 (17%) parole
candidates were under
their maximum guideline and continued over their maximum
guideline. These 77
parole candidates are all currently serving or they are
destined to serve
time in a guideline range exceeding the guideline
matching their conviction,
in violation of the Layne decision.

(4) Another 23 parole candidates (14%) were paroled,
all of them were way
over their maximum guideline. These are also Layne
violations, even though
parole was granted. Layne stipulates that an inmate must
be placed in the
guideline matching their conviction and nowhere else.
Because these inmates
served time in a guideline above the range engaged by
their conviction,
Layne was violated.

(5) In this same sample of 153 parole candidates, 53
(34%) are under their
guideline and continued to a point within their
guideline. While the Layne
decision has not yet been violated, these are potential
Layne violations.

In summary, 100 out of 153 parole
candidates (63%) served
time in a guideline range exceeding their matching
guideline, in violation
of the Layne decision. These trend lines look very
similar to the Layne
review hearings conducted through the summer of 2003.

Another Liberty Taken with the Parole Board Decision
Form

We have noticed another disturbing
change in filling out
recent Parole Board decisions. Judge Cain correctly
noticed and addressed
the gap existing between the court ordered initial
release hearing and the
entry point into the matching guideline. He labeled this
"paper eligibility"
as opposed to "true eligibility." Obviously, these
parole candidates could
not be seriously considered for release until they
entered their guideline
range. The Parole Board figured out that the entry point
into a given
guideline range was the tell-tale footprint, which
signaled a "paper
eligibility" hearing. How does the Parole Board address
this problem?
Instead of dealing with their difficulty, they are
shooting the messenger.

We can illustrate this practice by
using William Dotson's
recent parole decision. Mr. Dotson has been convicted of
aggravated murder.
Due to his risk score, his guideline range begins at 32
years. At his recent
hearing, Mr. Dotson had 25 years of service. Like his
first parole review,
this second hearing was another case of paper
eligibility, instead of true
eligibility. But unlike the first parole review, the
Parole Board Decision
does not reflect the entry point into Mr. Dotson's
guideline. Instead, Mr.
Dotson's guideline range reads "000 - 888". Both of
these numbers represent
fictions, conjured up by an administrator. By starting
William Dotson's
guideline with 000 - and another 34 decisions reflecting
this practice in
just the month of June, 2005, the Parole Board is
masking the fact that
these hearings reflected paper eligibility, not true
eligibility. The
substitution of three zero's camouflages the true nature
of the hearing, and
furthers the misconception that these inmates received
meaningful parole
hearings.

While this deceit is self-evident to inmates
subject to these
guidelines, an outsider needs a deep grounding in these
guidelines to
understand the significance behind this trickery. To our
knowledge, the
Public Defender is not yet aware of this practice. Mr.
Clovis's contempt
motion makes no mention of this tactic.

Given the latest liberty taken with
their Parole Board
Decision form, the Parole Board has now rendered
worthless both the upper
and lower limits of its guideline ranges. The upper
limit was rendered
impotent after Layne when the Offense Score was severed
from the calculation
which determined the time still to be served. The lower
limit of the
guideline was erased after Ankrom. Now, every guideline
begins with the
fictional figure of 000. If the minimum and maximum
time-lines no longer
serve as benchmarks for time served, what purpose do
they serve? We think
the answer is obvious - no purpose is served. Without
meaningful guideline
ranges, what validity still attaches to these current
guidelines? We
believe the guidelines have been rendered worthless.
Where does this leave
us? An Ohio administrative agency is now clinging
tenaciously to two items
that can no longer be reconciled with each other; (1)
the unfettered
exercise of discretion, and (2) the use of guidelines
which have now been
construed by two Ohio Appellate Courts as tightly
constraining their
exercise of discretion. This is never-never land.

The Public Defender's Contempt Motion

The Public Defender's Motion for
Contempt points out
that the Parole Board has rewritten Judge Cain's
qualifying criteria for a
new hearing. In the process, thousands of inmates
deserving Ankrom reviews
will not be heard. To fully understand how the Parole
Board's list violates
Judge Cain's ruling, we need to review portions of the
Ankrom decision which
discuss inmates qualifying for a new hearing. Next, we
must track Attorney
Clovis' reasoning to find out how thousands of inmates
are being denied
hearings by the Parole Board's criteria.

Ankrom discusses qualifying for a new hearing
and timing in this
manner.

* The plea agreement of a class member has been violated
when their parole
hearing consisted of paper eligibility instead of true
eligibility. If a
plea agreement has been violated in this way, the inmate
qualifies for an
Ankrom review.

* Paper eligibility occurs when the minimum
term of the guideline
range exceeds their initial court ordered hearing, or
when the minimum term
of an assigned guideline range exceeds either the time
served when the
hearing is held or the time required by the guideline
matching the
conviction.[11]

* Any inmates receiving a Layne review prior to
September 5, 2003, needed to
be reheard, because they did not receive the benefits of
Post-Layne
policies.

* These Ankrom hearings were to proceed
immediately.

The first problem pointed out by Attorney
Clovis is that the
statement granting hearings to all inmates receiving
Layne reviews on or
prior to September 5, 2003, has now been revised to read
"that no one heard
on or after September 5, 2003 shall receive a new
hearing ." The Parole
Board is again attaching a meaning to Judge Cain's
opinion that was never
intended.

September 5, 2003 relates only to Layne Reviews. All
Layne reviews held
before September 5, 2003 must be reheard, because
post-Layne policies were
not yet in force. This is the only significance attached
to this date by
Judge Cain. The Parole Board has adopted the date of
September 5, 2003 as an
across the board cut-off for qualifying inmates for
Ankrom reviews.[12]
Embedded in this new meaning is a totally false premise.
Since September 5,
2003, parole hearings have been peachy - meaning that
they have been true
release hearings, using all of the new policies adopted
after Layne. This
leap in logic is both blatant and outrageous - two fine
terms used by
Attorney Clovis and worthy of repeating. Judge Cain
never intended to state
that all hearings conducted after September 5, 2003 are
"true eligibility"
hearings and therefore beyond being challenged.

Attorney Clovis next points out that Defendants
identified only 134 class
members whose offense category does not correspond to
the class member's
offense (or offenses) of conviction, or . an offense
category that nominally
corresponds but which is elevated based upon the
independent determination
that a class member committed a distinct offense . for
which he was not
convicted." He estimates that there are many more class
members captured by
this criteria. We estimate that virtually every Old Law
inmate with a parole
hearing comes within the sweep of this sentence. The
Parole Board arrives at
this figure of 134 people because it believes the
clerical noting of an
Offense Score matching the judgment somewhere on the
Parole Decision form
satisfies its obligation under Layne. Attorney Clovis
backs off from asking
Judge Cain to resolve this fact-intensive dispute since
Defendants
"expressed a desire for Plaintiff's input" on this
problem.

Attorney Clovis properly observes that the
Court's order for a
re-hearing of all inmates receiving Layne reviews prior
to September 5, 2003
seems to have disappeared. In addition, he quotes
statistics from prior
years to demonstrate that the Parole Board seems to be
gearing down in terms
of the number of hearings it will conduct instead of up.
This turtle pace
effectively torpedoes Judge Cain's order to proceed with
these hearings
immediately.

Finally, Attorney Clovis is now aware of the
widening gap between
the Parole Board policies and its practices. He is
asking Judge Cain to
compel the Parole Board to begin taping their hearings,
creating a record
that can be reviewed and challenged. He is also asking
for the right to
attend hearings. The Public Defender's Office now knows;
if Parole Board
practices are not aligned in sync with their policies,
Ankrom can go the way
of Layne, reduced to a clerical entry.

We commend the Public Defender for
taking this stand and
filing a motion for contempt. It is conceivable that
this may be the most
aggressive motion ever filed by a Public Defender
against a Parole Board.

To bring you current, the State asked
for an extension of
time to answer the Contempt Motion. Attorney Clovis
opposed this motion.
Judge Cain is currently presiding over a capital murder
trial. No action has
been taken on either motion and no date for a hearing
has yet been set.

Miscellaneous Items

Becki has been devoting herself to
answering your
correspondence, and assisting in placing you in one of
the 12 habeas
categories. Beginning just about immediately, I am going
to have to take her
off this assignment, because she needs to devote herself
entirely to the
next generation of charts. These charts will be filed
with our Reply Brief.
We need to reduce Ankrom to pictures, just as we did
Layne. We further need
to place pictures of Layne and Ankrom side by side, to
show trends and
patterns. This evidence is necessary for our Bad Faith
claim, which is
simply a technical way of saying our claim for monetary
damages. If you
write to us in the next two months and receive no reply,
this is the reason.
Please try to get help from our liaisons.

We are still enrolling new clients
and we need the
financial assistance provided by a flow of new clients
today, just as we did
in the past.

Becki and I are very pleased with the
way Ankrom
documentation is coming to us. You are not just sending
us their stupid
form. You are explaining why you qualify for an Ankrom
decision. This is
extremely helpful to us.

Sincerely,


Norman Sirak
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  #2  
Old 07-17-2005, 10:24 AM
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thanks for the update Sabrena
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Old 07-19-2005, 02:29 PM
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Thanks!
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Old 08-11-2005, 01:49 PM
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one of dylan's friends at the prison asked me if they had a verdict here yet, i'm taking it as no?........i've briefly read some, but ..w/dylan being under the new law, i haven't read much into the sirak case.........can someone sum it up and explain it to me perhaps?
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Old 08-12-2005, 09:28 AM
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The Sirak case has not been decided yet, we are hoping for a decsion at years end, unlike the other lawsuits that have been rushed to court and either lost or gotten partial victories Attorney Sirak has not rushed our suit into court he is dotting all his i's and crossing all his t's in hopes of closing any loopholes the Ohio Attorney General or the Courts can use against us. This is a lawsuit for the old law inmates when they were sentenced before 1996 they were led to believe they would be getting out sooner but when the laws changed the parole board changed their rules in order to keep the old law inmates in prison longer, after all once all the old law inmates are out of prison Ohio will not need a parole board, so naturally the parole board is doing all it can to keep their jobs! Plus the parole board is not even followint their own new guidelines they are putting some inmates in higher classifications then what they should be in so the board cna keep them even longer! The board is resentencing these old law inmates on crimes they were charged with by the police but later made deals with the Prosecutors in the home towns for lesser time in prison if they pleaded guilty to lesser charges, the parole board ignores the plea deals and is resentencing the old law inmates! Understgand?Hope this helps, what does not help us is all the jail house lawyers filing on this and doing sloppy jobs that they get ruled against then thaqt sets a president for other cases that follow and this is making it more difficult for any lawyer to win a case against the parole board, if we could only get the jail house lawyers to stop filing we would be in better shape to win.
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Old 08-12-2005, 09:34 AM
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ok, gotcha............thank you so much!

one of the guys' at dylans prison asked if he could ask me to see if there was a verdict in, i don't know where he heard that?......but i told dylan yesterday that from what i see there is nothing new!........so i guess i will be trying to keep track of this too, just to let dylan tell his friend

thank you again!
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Old 08-12-2005, 09:37 AM
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ok thank you so much, i was just looking into it for one of dylan's friends and didn't know much about it........i guess the guy heard that there was a verdict, and he wanted me to check..........i told him last night that i didn't see anything new w/this..............but thanks for summing it all up like that, you did it well!!

i guess i'll be trying to follow it too from now on!
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Old 08-12-2005, 09:37 AM
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your welcome we will be posting all the news on the Sirak case here so keep watching
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Old 08-12-2005, 09:38 AM
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sorry i posted the thing twice, there seems to be a delay in the posts........i don't see our post when i clicked on new posts?........its ok now though!
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Old 08-12-2005, 09:40 AM
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Hey been there done that when I was firsrt learning I made a lot of mistakes
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