Test All the Evidence

A Texas death penalty case exemplifies why all biological evidence from rape and murder cases should be tested.

The state of Texas was 47 minutes from executing Henry "Hank" Skinner in March when Justice Antonin Scalia gave him a last-minute stay. Last month, the Supreme Court as a whole agreed to hear Skinner's case in the fall. At issue is whether Skinner should be given access to crime-scene evidence and DNA testing that he and his lawyers say will prove his innocence. However the court comes out, Skinner's case raises a fundamental question about how police and district attorneys investigate and prosecute crimes: Why wasn't this evidence tested before Skinner's trial? And why hasn't it been tested since?

The answers lie in the adversarial nature of our criminal justice system. There are times when neither the prosecution nor the defense is particularly interested in discovering the truth. That's where policy makers need to step in. In cases like Skinner's, they should establish a common-sense rule: When there is biological evidence at the crime scene, all of that evidence should be sent for DNA testing. No exceptions.

Read the rest of this article at Slate.

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  • Suki||

    So that's what happened to him after training all those animals?

  • Dello||

    But doing that would be too much like work, and when it turns out that the first guy they pick-up for the crime didn't do it, then they'd have to do MORE actual work.

  • A is Awesome||

    Geez, it's almost like that is their job or something.

  • ||

    That the state would attempt to deny Skinner a chance to prove his innocence should trouble anyone who gives a crap about justice. Too many prosecutors view a conviction as a win regardless of the actual guilt of a defendent.

    C'mon, if the guy did it, his semen will be detected in the rape kit. The prosecution is vindicated and the dumbass execution can be carried out with a clear conscience. The test would have cost magnitudes less than all of this legal wrangling. The only reason to oppose this that makes sense is that the DA is afraid of having egg on his face which he views as less objectionable than executing an innocent man.

    I don't know of Skinner is innocent. Hell, I don't know enough about the case to even have an opinion. I do know that opposing DNA testing is contrary to the interests of justice.

  • ||

    Make that "more objectionable than executing an innocent man".

  • Bob||

    It is not unconstitutional to execute an innocent man, as long as he had a fair trial.

  • A is Awesome||

    Yeah, just immoral. But who cares about morality?

  • ||

    "It is not unconstitutional to execute an innocent man"

    what the fuck is that supposed to mean?

  • Zeb||

    If the prosecutors are not worthless, amoral pieces of shit, then they should be the first ones demanding that the evidence be tested. What decent person could want to be responsible for an innocent person going to prison? This should convince anyone that most prosecutors are not good people.

  • Warty||

    My favorite Texas innocent execution is the guy who was convicted of burning down his house with his kids because he liked Iron Maiden.

    During the penalty phase of the trial a prosecutor said that Willingham's tattoo of a skull and serpent fit the profile of a sociopath. Two medical experts confirmed the theory. A psychologist was asked to interpret Willingham's Iron Maiden poster, and said that a picture of a fist punching through a skull signified violence and death. He added that Willingham's Led Zeppelin poster of a fallen angel indicated "cultive-type" activities. Psychiatrist James Grigson said that Willingham was an "extremely severe sociopath" and was incurable. The same psychiatrist helped put another prisoner on death row who was later acquitted.[1]

    HUK EM HORNS

  • The Gobbler||

    "My favorite Texas innocent execution..."

    Stop right there, Warty.

  • Brett L||

    Assembly line execution and prison rodeos; Texas justice in a nutshell.

  • ||

    Yeah, he was the dodgy psychiatrist from The Thin Blue Line. What an evil fuckface.

  • BakedPenguin||

    That was a really disturbing movie. Especially when they talked about the culture in the Dallas DA's office. The former DA actually once said something to the effect that "anyone can convict a guilty guy. A real prosecutor should be able to convict the innocent."

    Still not enough to make me a Christian - because an eternity in hell isn't sufficient punishment for shit like that.

  • Michael Ejercito||

    The former DA actually once said something to the effect that "anyone can convict a guilty guy. A real prosecutor should be able to convict the innocent."


    Which former DA is that?

  • BakedPenguin||

    I don't remember his name. Check out The Thin Blue Line - it's well worth seeing, except it's like an hour and a half long Balko column.

  • Michael Ejercito||

    My favorite Texas innocent execution is the guy who was convicted of burning down his house with his kids because he liked Iron Maiden.


    That would be incorrect.

    During the penalty phase of the trial a prosecutor said that Willingham's tattoo of a skull and serpent fit the profile of a sociopath.


    At least get the facts right.

  • Warty||

    Michael's Blurbs
    About me:
    I am a fun-loving guy who puts relationships ahead of material things. I love the company of other people!
    Who I'd like to meet:
    President George W. Bush , Governor Arnold Schwarzenegger , and Senator Tom McClintock . I would like to meet people who want to sell or buy a house, and I would love to meet a woman close to my age , who has never been married, never had kids, has a sweet personality, and is pretty enough to have sex with. :-)

    Are you real?

    Anyway, so he was convicted on dubious fire science, and executed for liking Iron Maiden. My apologies.

    Seriously though, are you real? Is it possible for someone like you to really exist?

  • Michael Ejercito||

    Anyway, so he was convicted on dubious fire science, and executed for liking Iron Maiden. My apologies.

    Seriously though, are you real? Is it possible for someone like you to really exist?


    You confused the trial phase with the penalty phase.

    It is hardly surprising you are trying to deflect the issue.

  • Attorney||

    Sounds like a good idea. We could even call it Radley's Law. (Seriously.)

  • ¢||

    My favorite Texas innocent execution is the guy who was convicted of burning down his house with his kids because he liked Iron Maiden.

    To be fair, he was convicted because he was charged—and because a grown man with a Maiden poster is unfuckable. Deadly combination.

  • ||

    When there is biological evidence at the crime scene, all of that evidence should be sent for DNA testing. No exceptions.

    Think about all the grandstanding DA's. How do you expect them to feed their families without railroading innocent men to the chair?

  • The Gobbler||

    He certainly looks guilty in that picture.

  • ||

    But Tony Montana IS guilty.

  • Tim||

    He's a cockaroach!

  • Almanian||

    You mean Rick Perry's picture by the Slate article? Yeah - scary...

  • Some Guy||

    The state of Texas was 47 minutes from executing Henry "Hank" Skinner in March when Justice Antonin Scalia gave him a last-minute stay.

    Sadly, that's actually the most shocking part about this. Since when does Scalia care whether someone is actually innocent?

  • Drax the Destroyer||

    Wait so... Al Pacino was not on death row?

  • Suki||

    He should be for The Merchant of Venice

  • Subsidize Me!||

    "I will have my bond," your honor.

  • ||

    not to mention, "Author, Author"!

  • Tman||

    Until DNA evidence is included in the testimony, his guilt has not been proven "beyond a reasonable doubt".

    How any self-respecting judge can ignore this irrefutable fact is beyond me.

  • ||

    ...and any self respecting prosecutor or defense attorney for that matter. I served as a PA for ten years and it never crossed my mind to not send potential DNA testing to the lab immediately (granted it was only available in a handfull of the thousands of cases I handled). And even if I would have balked, the defense attorney would have requested it. How in the hell they get away with this in some jurisdictions baffles me.

  • Michael Ejercito||

    And even if I would have balked, the defense attorney would have requested it.


    Not if the defense attorney thinks that the evidence would prove the prosecution's case.

  • hmm||

    Ya'll gotta stop fightn' to let all these guilty people out.

  • Lowdog||

    I would say it is not the adversarial nature of prosecution v defence, but the cooperative nature of their relationship. The prosecution and defence are trying to rush cases through the docket, and work together to move cases quickly.

    I don't know anything about this case, either, but I would guess that this guy's first attorney was not very good, and most likely showed deference to the prosecution.

  • Almanian||

    And, Radley, THANK YOU for a story that does not leave my balls aching. Yes, it's a crime shame crime it got to this point, but the stay has been issued, and there's the potential for a "happy ending". Sort of...

    I realize this means you must have a mf'er of a kick to the groinal region saved up for later this week, but thanks for this brief reprieve.

  • Enyap||

    Looking like Al Pacino probably didn't help him much.

  • ||

    Maybe the Texas legislature will step in. Oh, wait, that's the place where they cast 2 or 3 votes each...
    http://www.youtube.com/watch?v=eG6X-xtVask

  • ||

    Dude, that's fucking amazing. Those motherfuckers are busier than my Grandma Irene at the bingo parlor. I'm not sure which I'm disturbed by more, the ACORN voter fraud bullshit or those clowns in Texas.

  • Thomas O.||

    Our state's legislature is a horrible joke. They convene once every TWO YEARS... and even then it's for only FIVE MONTHS out of that year. Thus, "running out the clock" becomes a popular political maneuver for either party who can threaten to kill bills of vital importance (by missing a voting deadline) in the course of using stall tactics in support of (or opposition to) a pet project.

    The governor CAN call a 30-day "special session" after the Legislature adjourns to take care of any important business. But for the most part, our current governor, Rick Roosevelt, has been reluctant to do that.

  • ||

    The regular sessions are for 140 days every two years. You overlook what factors influenced the writers of the 1872 Texas constitution. Chiefly, they had just completed roughly 7 years of military government under actual military occupation as a consequence of being on the losing side in the Civil War. It was their intention to make it as difficult as possible to pass legislation and to enforce it once it was enacted. That's why the sessions are short and seldom. That's why the old "Caption Rule" was in the constitution, requiring only one subject per bill and that the bill's caption accurately label the bill. Laws were actually overturned on that basis. If they had only rejected the absurd "police powers" and "inherent powers" legal doctrines for the state of Texas, we'd be living in an even freer state.

    That said, all these death penalty cases are more proof of why the state should not be allowed to execute anyone for anything by any method. And, concomitantly, why licenses ought not be required to carry any firearm openly.

  • ||

    From what slime-covered hole do all the statists crawl out of in this thread? People who say the correct answer to abuse of government authority is to create still more and stronger government authority. Watchers and overseers and still more layers of authority, up and up, presumably to the Dear Leader who watches over all.

    Blech. Is there some spray that will deal with them?

    You have problems with prosecutors misusing their authority? The answer is NOT to create some supervisory authority with still more power. Talk about dousing your fire with gasoline! The correct solution is to take power away from prosecutors. Reduce their power until even fallible and corrupt human beings, which is the species with which we have to work, folks, can't cause egregious harm even when they go off the rails.

  • ||

    "The correct solution is to take power away from prosecutors."

    What power would you suggest taking away?

  • Michael Ejercito||

    What power would you suggest taking away?


    The power to prosecute, of course.

    By the way, I wonder why Chony has not chimed in on this thread.

  • ||

    The first and most obvious would be the plea bargain. That puts an unholy amount of power in the prosecutor's hands. He can -- and routinely does -- charge way beyond what he can hope to prove in court, then uses that threat to hammer people into bargains. And anything can be part of a plea bargain. Defendants routinely give up all manner of constitutional rights, and the whole concept of being proved guilty by a jury of your peers beyond a reasonable doubt is made mockery.

    Furthermore, it sets up ugly incentives for the defense lawyers, particularly if they're PDs. You have to play a careful game with the prosecutors, over time, so they continue to offer the right deals, because the new definition of a successful defense lawyer is one who can make a good deal with the prosecutor. That's only incidentally related to his ability to prevail at trial, and a lot more to do with his relationship to the prosecutors and his understanding of how they work.

    Prosecutors should be forced to try each and every single charge they file, unless the defendant pleads guilty, in which case his sentencing should be entirely up to the judge -- no recommendations from the prosecutor!

    The second would be removing sovereign immunity from prosecutors and judges for cases that go sufficiently badly wrong. If a man loses 25 years of his life because of gross prosecutorial or judicial misconduct, the consequences for the prosecutor or judge should be personal. Standards of malpractise routinely applied to physicians, phone companies, oil companies (ha ha) should be applied to judicial officers in the course of their duties. Imagine how much more careful a prosecutor would be if knows that the consequence of a DNA exoneration are not just his defendant walking, a mere embarassment, but his own actual ass in the slammer instead.

    Those two changes: "truth in justice," meaning every charge filed is actually tried, and personal liability for gross fuck-ups, would give us a system of people who wield their power very carefully indeed and quite transparently.

    One consequence of being forced to try every charge filed is that the obscene excess of criminalizing mere mistakes and policy preferences would become intolerable, and the people would demand its repeal, getting us back to the core concept of justice: that for their to be a crime there must be an actual victim and a criminal's evil intent.

  • Rabbit Scribe||

    +1, and please stick around. We have cookies. And if you don't like cookies, we have Warty.

  • Michael Ejercito||

    The second would be removing sovereign immunity from prosecutors and judges for cases that go sufficiently badly wrong. If a man loses 25 years of his life because of gross prosecutorial or judicial misconduct, the consequences for the prosecutor or judge should be personal. Standards of malpractise routinely applied to physicians, phone companies, oil companies (ha ha) should be applied to judicial officers in the course of their duties. Imagine how much more careful a prosecutor would be if knows that the consequence of a DNA exoneration are not just his defendant walking, a mere embarassment, but his own actual ass in the slammer instead.


    I would favor strict liability.

  • ||

    Where to begin? I take it you have never been a practicing attorney, either prosecutor or defense, as your comment betrays considerable lack of knowledge about how any criminal justice system functions.

    Without plea bargains, there would be a backload of criminal cases awaiting jury trials. Reality: it takes five working days to select a jury and try even the simpliest criminal trial, let alone first degree felonies. When I was a court reporter and later a defense attorney - in Texas, by the way - I and my fellows calculated that our county would have about a ten-year backlog built up in less than one year, assuming no increase in the crime rate. Not important? Really? How about those guys and gals in pretrial confinement, who cannot aford bail? Or the ones whose bail is enormously high? I'm sure they'd like to spend another ten years waiting for their "day in court". Over-charging? Of course! That's the first thing you look for as a defense lawyer when you review the state's file and evidence. It is a basic and essential factor in the plea process. Your definition of a successful defense lawyer is substantially accurate, but it omits looking at the whole case as I just mentioned. The reason for having a trial from time to time, as an abstract proposition, is so that as a defense lawyer you have credibility with a prosecutor who knows that unless his case is good, you'll whip is ass from Houston to El Paso, in front of the folks who will vote him into office if he has any political ambitions. And his boss the D.A. will likely notice it, too. Without a recommendation from the prosecutor, no judge in Texas has the power to sentence in a plea bargain. Notice the second word, "bargain". Without some guarantee that he'll get the agreed-upon sentence, why would a defendant plead? He'd be crazy to do so, as he could get from 5 to 99 years in the penitentiary or life without it in a first degree felony!! No defense lawyer could possibly plead his client without a legally-enforceable deal on sentence.

    Taking away immunity from prosecutors is two-edged, as it also makes them more easily influenced by what the community thinks about some individual's guilt or innocence. No? Think: who makes up the jury? Local folks. Who elects the prosecutor's boss, the D.A.? Local folks. What lawyer is going to pass up a "pat hand" lawsuit against a prosecutor, if the local community thinks the 19-year old former high school football star couldn't possibly have raped that 10-year old girl?? Probably works better the way we have it. Other changes? Yeah, but that's another comment.

    Your "two changes" would give us a tremendous backlog of jury trials in criminal cases - which would impact civil jury cases as well - and imposing personal liability on prosecutors would give us a system where there would be fewer competent attorneys in a D.A.'s office to prosecute - increased risk of a frivilous lawsuit they can't afford to defend - and a long time in pretrial confinement for criminal defendants as they wait for trial. Transparency? Oh, please! Only conducting every second of government business literally in the public square will give anything resembling the degree of transparency you seem to believe is desireable. Your recommendations will most certainly not produce the claimed results.

  • Cyto||

    "backlog" simply argues for more courts or less prosecutions.

    Immunity has some limitations, as you point out - but unlimited power to persecute an individual unjustly is an even bigger drawback. For a counter-example of community sentiment, see any of the "preschool sex abuse hysteria" cases.

  • ||

    And the solution to "persecution" is ..? Give the state more authority or give it less?? Reduce the media hype surrounding capital crimes or increase it? Make genuine improvements in education so that people don't reach adulthood believing that "hydrogen dioxide" ought to be banned; not recognizing that it's water? How about all the folks who decried a typed version of the Declaration of Independence as "communism"? Freedom requires competence. There is no possible way to structure a functional government that is the protector of people's rights unless the people are capable and willing to understand and protect their own rights. Education is the foundation and it ought to be taken away from the government at all levels. Yes, fewer prosecutions can handle the backlog and the "drug war" is a good place to start, along with various "hate crimes" etc etc. Solution requires first that folks understand what's going on and where the nation or state is headed. Not much chance of that with the U.S. What percent voted for Obama, knowing what is political views are?

    My point is simply that you cannot decontstruct the judicial system as if it were some theoretical construct in your "revolutionary studies" or "womyn's studies" or "black studies" classes. It is both real and has real effects and unforseen consequences.

  • ||

    Putting a higher burden on the state doesn't give them more power. Requiring them to test all DNA evidence regardless of whether or not they (or the defense) want it to be tested would ensure the most information is available at trial. It's like letting them use an edited security camera tape showing the suspect at the scene of the crime but allowing them to remove part of it that shows the suspect leaving before the crime was committed. Should we really leave it entirely up to the judgment of the prosecutor (or the defense) to determine what evidence is available for trial?

    I suppose if you're against allowing the state exclusivity in testing DNA for trial (since that can cause a conflict of interest) then you have a valid point, albeit for the wrong argument. Regardless of who does the testing, the testing should be done.

    I agree with most of what you wrote down below, but you definitely pegged this one wrong.

  • ||

    I guess I should say what you wrote above, damn threaded comments.

  • Cyto||

    Requiring all DNA to be tested in all cases by an independent laboratory would be the best all-around solution. Costs would go way down as large commercial labs grow up around the process. Police would have no access to the testing, so they couldn't prejudice the results.... yep, that's the way all evidence testing should be done, not just the DNA. But then, we all already knew that, didn't we? I love preaching to the choir....

  • abercrombie||

    dsfss

  • ||

    No one should ever face the death penalty without at least 2 witnesses. The death penalty is just, but not in the manner exercised in this case. It's ridiculous and a perversion of justice to ever enact a death penalty on physical and circumstantial evidence alone.

  • Cyto||

    I would completely disagree with that. Physical/circumstantial evidence is much more convincing than eyewitness testimony, unless we are talking about 2 witnesses who know the accused personally. Eyewitness identification is notoriously unreliable.

    The two witness rule also augers against deterrence. Once you've killed one person at the Quickie Mart, you have to shoot all the rest to eliminate witnesses. Now you've turned a simple armed robber who kills someone into a mass murderer. And a mass murderer who can't get the death penalty because there are no witnesses.

    Of course, I would be against the death penalty in any case - not that there aren't many who deserve to die (or worse).

  • ||

    No one should ever face the death penalty, period. Eyewitness testimony is highly unreliable, as many studies and criminal and civil trials have shown. Between the high probability of convicting the wrong person in a capital case - given the political pressures on police and prosecutors - and the dangers of allowing the government (state or federal) to legally kill people, there should be no death penalty.

  • Cyto||

    What Ike said...

  • ||

    TO THE WEAK-KNEED REPUBLICANS AND DEMOCRAT.....TO ALL THE COMMUNIST IN THE IG,FBI,CIA,AND U.S. Senators and the left wing media outlets.///// VERY QUIETLY Mmslim Barack Hussein Obama, CITIZENSHIP CASE REACHES THE SUPREME COURT ;;;GOD OPEN YOUR EYES.///For us there are only two possiblities: either we remain american or we come under the thumb of the communist Mmslim Barack Hussein OBAMA. This latter must not occur.
    Mmslim Barack Hussein Obama
    AP - WASHINGTON D.C. -
    In a move certain to fuel the debate over Mmslim Barack Hussein Obama qualifications for the presidency, the group "Americans for Freedom of Information" has Released copies of President Mmslim Barack Hussein Obama, college transcripts from Occidental College . Released today, the transcript school indicates that , underMmslim Barack Hussein Obama, the name Barry Soetoro, received financial aid as a foreign student from Indonesia as an undergraduate. The transcript was released by Occidental College in compliance with a court order in a suit brought by the group in the Superior Court of California. The transcript shows that Mmslim Barack Hussein Obama, (Soetoro) applied for financial aid and was awarded a fellowship for foreign students from the Fulbright Foundation Scholarship program. To qualify, for the scholarship, a student must claim foreign citizenship.
    This document would seem to provide the smoking gun that many of Mmslim Barack Hussein Obama, detractors have been seeking. Along with the evidence that he was first born in Kenya and there is no record of him ever applying for US citizenship, this is looking pretty grim. The news has created a firestorm at the White House as the release casts increasing doubt about legitimacy and qualification to serve as President article titled, Mmslim Barack Hussein Obama Eligibility Questioned,"Mmslim Barack Hussein Obama leading some to speculate that the story may overshadow economic issues on Mmslim Barack Hussein Obama, first official visit to the U.K. In a related matter, under growing pressure from several groups, Justice Antonin Scalia announced that the Supreme Court agreed on Tuesday to hear arguments concerning Obama's legal eligibility to serve as President in a case brought by Leo Donofrio of New Jersey . This lawsuit claims Mmslim Barack Hussein Obama, dual citizenship disqualified him from serving as president. Donofrio's case is just one of 18 suits brought by citizens demanding proof of citizenshMmslim Barack Hussein Obama,citizenship or qualification to serve as president.

    Gary Kreep of the United States Justice Foundation has released the results of their investigation of Mmslim Barack Hussein Obama campaign spending. This study estimates that Obama has spent upwards of $950,000 in campaign funds in the past year with eleven law firms in 12 states for legal resources to block disclosure of any of his personal records. Mr. Kreep indicated that the investigation is still ongoing but that the final report will be provided to the U..S. Attorney general, Eric Holder. Mr. Holder has refused to comment on the matter...

    LET OTHER FOLKS KNOW THIS NEWS, THE MEDIA WON'T !

    Subject: RE: Issue of Passport?

    While I've little interest in getting in the middle of the Obama birth issue, Paul Hollrah over at FSM did so yesterday and believes the issue can be resolved by Mmslim Barack Hussein Obama answering one simple question: What passport did he use when he was shuttling between New York , Jakarta , and Karachi ?

    So how did a young man who arrived in New York in early June 1981, without the price of a hotel room in his pocket, suddenly come up with the price of a round-the-world trip just a month later?

    And once he was on a plane, shuttling between New York , Jakarta , and Karachi , what passport was he offering when he passed through Customs and Immigration?

    The American people not only deserve to have answers to these questions, they must have answers. It makes the debate over citizensh Mmslim Barack Hussein Obamaip a rather short and simple one.

    Q: Did he travel to Pakistan in 1981, at age 20?
    A : Yes, by his own admission.

    Q: What passport did he travel under?
    A: There are only three possibilities.
    1) He traveled with a U.S. .. Passport,
    2) He traveled with a British passport, or
    3) He traveled with an Indonesia passport.

    Q: Is it possible that Mmslim Barack Hussein Obama traveled with a U.S. Passport in 1981?
    A: No. It is not possible. Pakistan was on the U.S. .. State Department's "no travel" list in 1981.

    Conclusion: When Mmslim Barack Hussein Obama went to Pakistan in 1981 he was traveling either with a British passport or an Indonesian passport.

    If he were traveling with a British passport that would provide proof that he was born in Kenya on August 4, 1961, not in Hawaii as he claims. And if he were traveling with an Indonesian passport that would tend to prove that he relinquished whatever previous citizenship he held, British or American, prior to being adopted by his Indonesian step-father in 1967.

    Whatever the truth of the matter, the American people need to know how he managed to become a "natural born" American citizen between 1981 and 2008..

    Given the destructive nature of his plans for America, as illustrated by his speech before Congress and the disastrous spending plan he has presented to Congress, the sooner we learn the truth of all this, the better.

    If you Don't care that Your President Mmslim Barack Hussein Obama is not a natural born Citizen and in Violation of the Constitution, then Delete this, and then lower your American Flag to half-staff, because the U.S. Constitution is already on life-support, and won't survive much longer.

    If you do care then Forward this to as many patriotic Americans as you can, because our country is being looted and ransacked! the commander

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  • ||

    Wonderful article
    Won't be supprised if the guys DNA is a match but we'll see.
    Texas always comes off as a place as far out as a novel into the dreams of a madman mixed with the common sense of a TV preacher.

  • ขายคอนโด||

    What decent person could want to be responsible for an innocent person going to prison? This should convince anyone that most prosecutors are not good people.

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  • ปลวก||

    The death penalty is just, but not in the manner exercised in this case.

  • ran||

    Would not be supprised if the guys DNA is a match but we'll see.

  • กำจัดปลวก||

    I agree with most of what you wrote down below, but you definitely pegged this one wrong.

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