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Old April 27, 2014, 01:17 PM   #151
steve4102
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And a statement by an attorney advocating for the defendant tells us what?
Not much, but the ME testimony does tell us this.

Brady was also shot in the abdomen and in the back of his left shoulder as he descended the stairs into Smith's basement. Mills testified these first two gunshots caused serious internal injuries that would have been fatal had enough time passed but would not have been incapacitating.

http://www.twincities.com/localnews/...n-murder-trial

That is for Brady, whether the ME admitted Kifer was still a treat is unclear. The Defense did however tie the two together and plant that seed in the Jury.
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Old April 27, 2014, 01:29 PM   #152
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The case law does stress that even under MN 609.065, the force used by a defender must meet the "reasonable man" test relative to the danger the defender faces; I don't think executing an injured person meets that test anywhere, and Minnesotans, by and large, are a pretty reasonable lot.
The defense may try to rely on statute and argue that the case law is deficient. This really isn't the test case I'd like to see for that.

And yes, Minnesota seems a pretty reasonable place, given Garrison Keillor and MST3K. Winters can be a bit troublesome, though.
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Old April 27, 2014, 01:38 PM   #153
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Posted by steve4102: ...whether the ME admitted Kifer was still a treat is unclear.
The defendant tells us enough:
  • He said "I fired more shots than I needed to." [Damages any claim of necessity or reasonableness]
  • "He dragged her body", "still gasping for air." [A threat? Seriously?]
  • "A good clean finishing shot." [Necessity and reasonableness--again]
  • He left the bodies and went to celebrate Thanksgiving. [Flight, an indication of guilt]
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Old April 27, 2014, 01:42 PM   #154
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I also suspect that part of it is a "they got what they deserved" bit of confirmation bias. We're certainly seeing no shortage of it in this thread.

The problem is, what they did or didn't deserve wasn't Smith's call to make. If it were, I'd truly fear for us as a society. If I'm reading the Minnesota statutes correctly, Smith may have a defense.
Time will tell if Smith gets off with it or not, what would concern me more is some peoples attitudes that they got what they deserved. But people that think that its ok to shoot someone that breaks into their house wounding them and deciding that instead of the courts dealing with the perpetrators they will save them the trouble and execute them. I find disturbing and strange that they think a burglar deserves to die but the person that many will see as a murder should not be found guilty and what he did is fine.
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Old April 27, 2014, 01:44 PM   #155
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Posted by Tom Servo: The defense may try to rely on statute and argue that the case law is deficient.
I suppose the defense could try to argue that reasonableness is only required when an actor is defending his life and not when he is preventing a felony....

I wouldn't, and if they did, I doubt that it would go anywhere.
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Old April 27, 2014, 01:51 PM   #156
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What matters is what the law means, which is a matter for the courts, and what Smith did.
I respectfully disagree. What matters very much IS what the law says. If the citizens cannot be guided by what the laws say, then we are not a nation of laws, we are a nation of lawyers.

As for what the law means being a matter for the courts, I again disagree. The very first Chief Justice of the U.S. Supreme Court once ruled that "the jury shall be the trier of the facts and of the law." Since we have no higher legal authority than that in this country, I'll go with that. If John Jay said the jury decides on the law, and the Supreme Court has not seen fit to reverse that in more than 200 years since Chief Justice Jay made that declaration, who am I to dispute it? The jury decides the law.

That said, in the interest of full disclosure I should note that I have been removed from jury duty because I once declined to kow-tow to a judge and promise to blindly follow the judge's instructions on what a law might mean even if I disagreed with said judge's instructions. (The system doesn't like uppity serfs.)

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Old April 27, 2014, 02:03 PM   #157
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Posted by Aquila Blanca: What matters very much IS what the law says.
But--the law is not a single statute, taken out of context. "What the law says" includes the relevant parts of all relevant statutes, and it includes case law, which is handed down by superior courts.
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Old April 27, 2014, 02:19 PM   #158
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Originally Posted by OldMarksman
I suppose the defense could try to argue that reasonableness is only required when an actor is defending his life and not when he is preventing a felony....
If the defense so argued, they'd be out of luck.

As recently as 2012, the MN court of Appeals noted that:
Unlike self-defense, which only permits the use of lethal force when the person is reasonably in fear of great bodily harm or death, a person who acts in defense of dwelling may use lethal force to prevent the commission of a felony in the home, and need not be in fear of great bodily harm or death. State v. Pendleton, 567 N.W.2d 265, 268-69 (Minn. 1997). But the party claiming defense of dwelling must nevertheless act reasonably and use the level of force appropriate under the specific circumstances. Glowacki, 630 N.W.2d at 402.
The elements of a defense-of-dwelling claim are:
(1) At the time the defendant used deadly force against the victim, was the defendant preventing the commission of a felony in his or her home?
(2) Was the belief reasonable under the circumstances?
(3) Was the use of deadly force reasonable under the circumstances in light of the danger then to be apprehended?

State of Minnesota vs. Anderson, 2012

Mr. Smith does appear to have satisfied (1) and (2), with respect to his initial shooting of the two intruders. But in light of (3), his use of deadly force was hardly reasonable once they were down and injured. It's rather difficult to see what "danger" he "apprehended" when he shot Ms. Kifer after moving her body.
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Old April 27, 2014, 02:25 PM   #159
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It's rather difficult to see what "danger" he "apprehended" when he shot Ms. Kifer after moving her body
True if I thought someone was still a threat the last thing would do is get close enough to move them and then finish the off.
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Old April 27, 2014, 02:43 PM   #160
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I haven't read everything on this case that is available so I have a couple of questions:

1) It was said earlier that the defendant saw the shadows of someone walking on his porch, or around his house, before he went into his basement and viewed them through the cameras. Did he make an effort to identify them? To find out their intentions? To make them know he was home and the house occupied? How did they get into the house with him home and armed?

2) Did they break into the locked basement? Did they walk into a dark basement knowing he was there armed and sitting in the dark waiting for them?

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Old April 27, 2014, 03:37 PM   #161
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Originally Posted by steve4102
MN Law says that Killing may be justified in the Prevention of a Felony In one's abode. He did not need to defend himself or feel his life was in danger. MN laws says the Felony Burglary is cause for killing.
I think you're still stuck on your interpretation of the statute as written without the benefit of case law context. Again, look at the three-prong test established by State v. Carothers in regard to defense of dwelling claims.

Quote:
Originally Posted by Minnesota v. Carothers
(1) At the time the defendant used deadly force against the victim, was the defendant preventing the commission of a felony in his or her home?
(2) Was the belief reasonable under the circumstances?
(3) Was the use of deadly force reasonable under the circumstances in light of the danger then to be apprehended?
Smith only meets the first two standards, but he must make all three in order to mount a defense of dwelling claim successfully. The prosecution is not arguing that Smith was not justified in shooting the burglars as they came down the stairs. The prosecution is arguing that his continued use of force in light of the relative danger he was in was not reasonable.
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Old April 27, 2014, 04:04 PM   #162
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I have a feeling that Smith knows something about the law or he is really whacko. Why would he record the events that could be damning to him?

He worked for the State Department and could've got good advice pertaining to the law concerning his situation and he carried it out (to his satisfaction).

It'd be interesting what the outcome is on the case.
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Old April 27, 2014, 04:21 PM   #163
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Bad guys record themselves doing things that could be damning to them with some regularity. Ersland had a new video surveillance system installed in his pharmacy that documented his crime. Some like to keep a record of what they have done, as a sort of visual trophy just like many law abiding citizens do. That it may be damning doesn't always come into consideration when creating the trophy.
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Old April 27, 2014, 04:57 PM   #164
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Lets say for a moment the laws is written very poorly and by legal standards Mr. Smith is in the clear. Having read through most of the citations in this thread I do not believe that is the case, but lets assume it is for a moment.

A jury can "nullify" a law finding a person not guilty when they technically meet the qualifications of guilt by the law. This is the basic reasoning behind of "jury of ones peers." There are several recent incidences involving criminal drug possession statutes. Could a jury likewise find a presumption of reasonableness to be constitutionally invalid? On the face of it I would think not, but logically it isn't all that much different.
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Old April 27, 2014, 06:34 PM   #165
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If they did break into his home then if I was on the jury.... I would be giving him a lot of benefits of the doubt.

The state asks why did you move her. He say she was crawling for the door.

The state asks why did you shoot them again. They reached into they pocket.

I would need a lot from the state before I found a man guilty of killing someone that broke into his home and was still inside.

That pharmacist in OK killed a unarmed man inside a place of business. That is totally different than killing someone that broke into your house.
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Old April 27, 2014, 06:55 PM   #166
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Originally Posted by johnwilliamson062
...A jury can "nullify" a law finding a person not guilty when they technically meet the qualifications of guilt by the law....
Yes, a jury may acquit of a criminal charge even if under the facts and law the defendant is guilty. That's why at times in our history it was pretty much impossible in many parts of the country to convict a white man of murdering a black man, even when guilt was clear.

Quote:
Originally Posted by johnwilliamson062
...This is the basic reasoning behind of "jury of ones peers."...
But it has nothing whatsoever to do with a "jury of one's peers."

The ability of a jury to "nullify" the law arises from the Fifth Amendment prohibition of double jeopardy:
Quote:
...nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;...
So a jury verdict of acquittal can not be appealed by the prosecution.

BTW, there is nothing in our laws that entitles anyone to a jury of his peers. One is entitled to an impartial jury (Constitution, Sixth Amendment); but you have no grounds upon which to insist that members of your jury be "your peers", i. e., from the of the same societal group, age, status, background or education, etc., as you.

(The notion of a "jury of one's peers" comes from Magna Carta and was indeed intended to refer to being judged by one's equals. Magna Carta was forced on King John by the feudal barons to protect their interests. Their first concern was that they be judged only by nobles of similar rank. And indeed until relatively recently, a British noble charged with a crime was entitled to be tried in the House of Lords. The last trial in the House of Lords was in 1935, and the trial jurisdiction of the House of Lords was abolished in 1948.)
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Old April 27, 2014, 07:38 PM   #167
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Originally Posted by sfwusc
If they did break into his home then if I was on the jury.... I would be giving him a lot of benefits of the doubt.

The state asks why did you move her. He say she was crawling for the door.

The state asks why did you shoot them again. They reached into they pocket.

I would need a lot from the state before I found a man guilty of killing someone that broke into his home and was still inside.

That pharmacist in OK killed a unarmed man inside a place of business. That is totally different than killing someone that broke into your house.
I think it would go this way.

The state asks "When you first noticed people approaching your house, given the past history of burglaries, why didn't you call the police?"

Smith tells them "... because I didn't want to bother them on Thanksgiving?"

The state asks "After you shot the first burglar twice and he fell down the stairs, why did you then yell "YOU'RE DEAD!" and fatally shoot him in the face?"

Smith says "Well, he might have had a weapon."

The state asks "Well, what made you think he had a weapon?"

Smith says "Well, nothing, really, but he might have had a weapon."

The state asks "Did he reach for a weapon or make a threatening gesture, or do anything other than lie on the ground bleeding?"

Smith says "Well, no, but he might have had a weapon somewhere."

The state asks "After you killed the first burglar, why did you put his body on a tarp and drag it into a different room?"

Smith says "He might have had a weapon."

The state asks "After you shot the second burglar, and she fell down the steps, your rifle jammed. As she was lying there on the ground bleeding, why did you then take out a revolver and shoot her six more times?"

Smith says "I think she laughed at me. If you shoot somebody and they laugh at you, you should shoot them again."

The state says "I don't know how to respond to that. Can you show me where in the Minnesota Criminal Code it says you can shoot somebody for laughing at you?"

Smith says "She might have had a weapon. Sure, I fired more times than I needed to, but she might have had a weapon."

The state asks "What made you think she had a weapon?"

Smith says "She might have had a weapon."

The state says "Please answer the question."

Smith says "She might have had a weapon, so obviously I needed to shoot her."

The state asks "If you were afraid she had a weapon, why did you then approach her, move her body onto a tarp, and drag her into the other room? It seems like that would be dangerous if you thought she had a weapon."

Smith says "She might have had a weapon. That's why I moved her."

The state asks "So after you moved her, you said you heard her still breathing, so you put your gun under her chin and fired a shot into her brain. Wouldn't someone who had a weapon and the intent to harm you have tried to attack you when your hands were occupied dragging her body?"

Smith says "She might have had a weapon."

The state asks "So why did you put your weapon away and get close enough to her to move her body?"

Smith says "Because she might have had a weapon."

The state says "Let's go back to that bit where you shot her in the brain. Why did you do that?"

Smith says "Because she might have had a weapon. I wanted to put her out of her misery with a good clean finishing shot."

The state asks "Why didn't you call the police after you shot both burglars?"

Smith says "Because it was Thanksgiving! Everyone knows the police will get really mad if you call them about something as dumb as two dead bodies!"

I am having trouble seeing a single statement of Smith's here that is reasonable.
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Old April 27, 2014, 07:59 PM   #168
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Originally Posted by OldMarksman
Quote:
Originally Posted by Aguila Blanca
Posted by Aquila Blanca: What matters very much IS what the law says.
But--the law is not a single statute, taken out of context. "What the law says" includes the relevant parts of all relevant statutes, and it includes case law, which is handed down by superior courts.
Case law is the combined "wisdom" of what judges have said the law means ... which may or may not coincide with what the law says.

An extreme example would be the SCOTUS case of Miller, which for decades (until Heller) "established" that the 2nd Amendment RKBA was dependent on whether or not a firearm had a suitable military use. Then along came Heller and the militia/military nexus went out the window.

If the Chief Justice said that the jury shall be the triers of the facts and of the law, and no Supreme Court has reversed that in over 200 years, I will conduct myself accordingly. I was one credit short of a minor in English in college, and I have been a writer (technical and creative) for over fifty years. I'll put my ability to read English up against any judge in the country. (Which is probably why they don't want me on juries.)
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Old April 27, 2014, 08:05 PM   #169
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The problem with the entire exchange posited by M_M is that Mr. Smith has already told the police his version of events, and that account is the source of much of the state's case against him. If he now contradicts what he told the police, either (1) his earlier account was correct and he's now perjuring himself, or (2) he lied to the police when he confessed to (for just one example) believing that Ms. Kifer was dead, moving her body, then hearing her make some sort of sound and firing that "a good clean finishing shot" into her head. I doubt that the best defense attorney in the world (which Mr. Meshbesher is not) could argue convincingly that the police elicited all of that by way of a false confession, and it strains credulity to think that Mr. Smith would have made up a version of events that's so damning.
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Old April 27, 2014, 08:18 PM   #170
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Here's where case law may conflict with the ability of the jury to read and interpret the law for themselves. Laws, unfortunately, are far too often not written with a lot of regard to clarity of grammatical construction. (Just look at all the confusion created over one errant comma depending on which version of the 2nd Amendment you're looking at.)

Someone quoted the applicable law in this case as:
Quote:
609.065 JUSTIFIABLE TAKING OF LIFE.
The intentional taking of the life of another is not authorized by section 609.06, except when necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor's place of abode.
Then someone cited case law in which a judge determined that, although within one's own house fear of death isn't a requirement, use of force must still be "reasonable." But ... is that what the law says? Let's look at the two ways the same law can be read. Paraphrased, the court (case law) would tell us that what the law actually says is (according to the court):
609.065 JUSTIFIABLE TAKING OF LIFE.
The intentional taking of the life of another is not authorized by section 609.06, except when necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or when the actor reasonably believes the taking of life is necessary in preventing the commission of a felony in the actor's place of abode.
But the same law can also be read (and, in fact, says)
609.065 JUSTIFIABLE TAKING OF LIFE.
The intentional taking of the life of another is not authorized by section 609.06, except when necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor's place of abode.
In other words, read as written the "reasonable" part of the statute applies only to the first situation. It does not apply to the second situation. That's actually very clear based on the placement of the comma and the placement of the words "reasonably believes," which modify only the first action but not the second. Looking at the construction of the law grammatically, there is really no way you can honestly twist the construction to force "reasonably believes" to also apply to preventing a felony in the actor's place of abode.

Reason number 5,427 why laws should be written by grammarians rather than by lawyers.
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Old April 27, 2014, 08:44 PM   #171
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In other words, read as written the "reasonable" part of the statute applies only to the first situation. It does not apply to the second situation. That's actually very clear based on the placement of the comma and the placement of the words "reasonably believes," which modify only the first action but not the second. Looking at the construction of the law grammatically, there is really no way you can honestly twist the construction to force "reasonably believes" to also apply to preventing a felony in the actor's place of abode.
...and that brings us back to this.

Unlike self-defense, which only permits the use of lethal force when the person is reasonably in fear of great bodily harm or death, a person who acts in defense of dwelling may use lethal force to prevent the commission of a felony in the home, and need not be in fear of great bodily harm or death. State v. Pendleton, 567 N.W.2d 265, 268-69 (Minn. 1997). But the party claiming defense of dwelling must nevertheless act reasonably and use the level of force appropriate under the specific circumstances. Glowacki, 630 N.W.2d at 402.
The elements of a defense-of-dwelling claim are:
(1) At the time the defendant used deadly force against the victim, was the defendant preventing the commission of a felony in his or her home?
(2) Was the belief reasonable under the circumstances?
(3) Was the use of deadly force reasonable under the circumstances in light of the danger then to be apprehended?


It appears to me that this whole case hinges on a comma and the word "Reasonable".
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Old April 27, 2014, 08:54 PM   #172
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Posted by Aquila Blanca: In other words, read as written the "reasonable" part of the statute applies only to the first situation. It does not apply to the second situation. That's actually very clear...
"Read as written"would seem to mean very little indeed, in light of Post #158.
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Old April 27, 2014, 09:38 PM   #173
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That pharmacist in OK killed a unarmed man inside a place of business. That is totally different than killing someone that broke into your house.
Actually, Ersland might have been on better footing. That whole exchange took less than 30 seconds. He might have been able to make the argument that he was still high on adrenaline when he retrieved the second gun and shot the robber in the stomach.

That's not so for Mr. Smith, who showed motivation, planning, and presence of mind in and following the altercation.
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Old April 27, 2014, 10:07 PM   #174
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Originally Posted by OldMarksman
"Read as written"would seem to mean very little indeed, in light of Post #158.
Yep.

Which is why we have become a nation of lawyers, rather than a nation of laws. And which is why judges (and most attorneys) DON'T want us to know that we have the right as jurors to judge the law as well as the facts of a case. And which is why my state doesn't want me sitting on juries.

I understand what the appellate court ruled (post #158). I just happen to believe that they were wrong; there is no way the language of the law as written allows them to get where they got. Ergo, if I were sitting on a jury and charged with judging a case based on this law, I would have to look at the case law precedent and ... ignore it. I would have to. Morally, I would have no other choice, because the law does not support the ruling.

For those who don't know what I'm blathering about: http://fija.org/

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Old April 28, 2014, 09:05 AM   #175
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Originally Posted by Vanya
The problem with the entire exchange posited by M_M is that Mr. Smith has already told the police his version of events, and that account is the source of much of the state's case against him. If he now contradicts what he told the police, either (1) his earlier account was correct and he's now perjuring himself, or (2) he lied to the police when he confessed to (for just one example) believing that Ms. Kifer was dead, moving her body, then hearing her make some sort of sound and firing that "a good clean finishing shot" into her head. I doubt that the best defense attorney in the world (which Mr. Meshbesher is not) could argue convincingly that the police elicited all of that by way of a false confession, and it strains credulity to think that Mr. Smith would have made up a version of events that's so damning.
I was attempting to point out in a slightly facetious manner the difficulty Smith is going to have justifying the reasonableness of his actions.

Regardless of what Smith told police at first compared to what he tells the court now, we also have the double 'confession' of an audio recording of the entire thing courtesy of Smith, so it seems even if he could slip out of one noose he'd still be hoist by his own petard.
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