Due Process

The travails of former Penn State coach, Jerry Sandusky, are well known. It seems each week brings more revelations or more fall out. While the University and its former coaches deal with the growing scandal, Sandusky’s attorney, Joseph Amendola has been on the talk show circuit in an apparent attempt to counter the growing public perception that his client is a degenerate pedophile before a jury is even impaneled in his criminal case.

Monday, Amendola shocked the legal community with his controversial, impromptu offer to NBC’s Bob Costas to get Sandusky on the phone during the lawyer’s interview with Costas. What followed was a departure from all conventional legal advice– a client giving a recorded TV interview. It was live, unedited and direct. Costas did not sugar coat his questions, challenging Sandusky on the meat of the allegations that have been made public. Sandusky’s pregnant pause as he contemplated the question of whether he has a sexual attraction to young boys has stirred more debate. Did the interview help him in the court of public opinion? Does it even matter in his defense whether it did or didn’t?

Before the advent of reality legal shows like CourtTV and Nancy Grace, public comments about pending sensational cases were limited to news broadcasts and print media. With Twitter and the increase in televised trials cases have moved from the courtroom to your smartphone and TV screen. There is no denying the power of TV personalities to shape public opinion. How much would Casey Anthony be reviled if not for the constant barrage of opinion on her guilt from Nancy Grace and others on HLN nightly, during and after the trial. Interestingly, however, while they helped shape the post-verdict condemnation of Anthony, their constant rants did nothing to affect the jurors who acquitted Anthony.

So is Amendola’s interview tour the new wave in criminal defense? Having defended notorious cases I can attest that it is a simple task to get a public platform. Broadcast and print media are hungry for any inside information and will always reach out to the lawyers for interviews and comments. It doesn’t take a publicist to seek out journalists. Add to that the allure of being touted in national broadcasts, lawyers hungry for acclaim are easy targets. But there are rules, both written and unwritten, that should govern a lawyer’s decision to speak publicly. Amedola, however, went beyond just providing comment on a pending case, he offered up his client. One would be hard pressed to find support for such a decision among experienced criminal lawyers.

Let’s start with the lawyer’s ethical obligations. Connecticut’s Code of Professional Responsibility provides: “Rule 3.6. Trial Publicity (a) A lawyer . . . shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”

The rule does not mandate silence but circumscribes what is permitted. The balance of the Rule would appear to insulate Amendola to some extent: “. . . a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this subsection shall be limited to such information as is necessary to mitigate the recent adverse publicity.”

Ohio has a similar Code provision. The real question is not whether there has been a violation of an attorney code of conduct, but whether the decision to allow his client to speak publicly is one that an attorney of average competence would make. Here there is a real split. The new age of TV lawyers would probably support the decision if there was something tangible to be gained. Most traditional practitioners would recognize the pitfalls. Amendola had no control over the direction the interview would take. He placed his client at risk that he would make a statement that would further damage his cause. At the very least, he allowed a permanent record to be made that may be admissible at Sandusky’s trial.

On balance an experienced lawyer would weigh the risks versus the benefits from such an edgy play. Given the widespread comments of disbelief following the interview, one is hard pressed to see where they believed there would be an benefit to Sandusky.

Let me know what you think. Post your comments below or send me a Tweet @RichMeehan on Twitter.

The evil allegedly perpetrated by ex-coach Jerry Sandusky has done more than tarnish a sterling football program’s reputation and brought down its iconic coach. What will most assuredly follow is a score of lawsuits, not unlike those involving the Catholic Church and pedophile priests. Sandusky will be the central target of these lawsuits, and the history of the legion of successful cases targeting the Catholic Church, demonstrates that the financial fall out will be substantial.

While Sandusky is the initial target, plaintiffs’ lawyers will be looking to the deeper, institutional pockets for compensation for these victims. Again, the Church cases provide the roadmap. Sexual abuse is a civil wrong (or tort ,as the law describes it) as well as a crime. For civil liability purposes it is referred to as an intentional tort. The victim is entitled to a panoply of potential damages, including in many instances, punitive damages. The dilemma for victims of intentional torts is how to collect those damages.

There is a significant difference for insurance indemnity purposes between intentional torts and negligent torts. One can insure against the possibility of a claim for negligence and be indemnified by an applicable insurance policy. In most instances insurance will not indemnify someone who is sued for an intentional act. In the instance of sexual abuse lawsuits there is generally no insurance policy to cover the verdicts or effectuate a settlement. For that reason if Sandusky acted alone, without any tolerance of his actions by the University, the victims would be left with a limited fund to pursue consisting of whatever Sandusky assets could be marshaled. In most instances the victories would be hollow and the victims would go uncompensated.

In the Church cases lawyers argued that the institutional defendant–the Church– knew of the predilections of its deviate priests and tacitly condoned those actions by failing to remove them from parishes or warn potential victims of the past wrongs. Generally, an employer is not responsible for the intentional wrongs of its agents, servants or employees unless the employer has past knowledge of those tendencies and has condoned such conduct in the past. If that is established the doctrine of Respondeat Superior, otherwise known as vicarious liability, applies; that is, the employer is now held responsible for the victim’s damages.

Thus, in the Penn State cases the University was put on notice of Sandusky’s alleged tortious conduct when Michael McQueary reported the alleged locker room rape of a ten year old. Once the report was made known the University became obliged to investigate the allegation, and if proven to have substance, then it triggered the further responsibility to eliminate the risk to other victims. Instead, it has been reported that Sandusky received mild sanctions and was permitted continued access to the campus’ sports facilities to run his youth programs. If all of this is proven true the University and its administrators may become responsible to indemnify the victims of any proven sexual abuse. The Church cases demonstrate that the settlements and verdicts will amount to millions of dollars.

Two other issues face the victims in pursuit of civil justice. The first is the statute of limitations. Prior to 2002 (ironic that it is the year of the first discovered Sandusky assault) Pennsylvania only provided minor victims of sex assault with an additional two years beyond their 18th birthday to bring suit. In that year, however, the statute was expanded until the young victim turned 30 (in Connecticut a victim has until age 35).

The additional issue is the doctrine of sovereign immunity. This doctrine finds its roots in the old English common law– “the King can do no wrong.” Under this concept state governments were generally exempt from being sued unless special legislation permitted it. For example, in Connecticut there are certain statutes that permit certain types of claims, such as injuries on public highways. In the absence of such statutes a citizen here must petition the State Claims Commissioner for permission to sue the state and its agents. That petition must be filed within One year of the wrong or the right to sue is forever lost.

PSU is a state university, and as such may be exempt from suit without some special provision in Pennsylvania law that would remove the bar of sovereign immunity. Whatever the eventual outcome, it is clear that the fallout from the Sandusky mess will effect more that PSU’s won/loss record on the gridiron.

Let me know what you think. Post your comments below or send me a Tweet @RichMeehan on Twitter.

This past week Joe Paterno, Penn State’s iconic coach, affectionately known as “JoePa” became the winning-est coach in college football history. At 85, the scion of Happy Valley had presided over a career replete with National Championships, conference titles and a legion of eventual NFL stars. But that star is now forever tarnished with JoePa’s ouster and the scandal surrounding the prosecution of former PSU defensive coordinator, Jerry Sandusky, accused of sexually assaulting 8 boys on Penn State’s campus. Sandusky and PSU were renowned for defense, earning the school the nickname, Linebacker U.

The probe has already engulfed two PSU administrators; and, the most recent allegations suggest strongly that Sandusky’s alleged misconduct was well known in the PSU locker room. Former athletic director Tim Curley and senior vice president Gary Schultz have now been charged with perjury and failure to report the abuse complaints.

The New York Times reports a list of alleged inappropriate actions by Sandusky with youngsters that were reported by PSU staff. The Pennsylvania attorney general and state police commissioner, in a joint press conference, were highly critical of the athletic department’s failures to have reported the accusations, suggesting that those claimed failures exposed other youngsters to possible sexual abuse.

Eventually, the sordid allegations will be aired in a courtroom and we will know whether Sandusky is a pedophile as alleged, or wrongly accused as his lawyer claims. The accusations against the PSU administrators are as troubling. They did not sexually abuse anyone but they are alleged to have failed to report the claimed abuse. If the allegations have yet to be proven in a court of law, then how can these two be held criminally responsible, and have lost their careers already? Pennsylvania, like many other states, including Connecticut, place a heavy responsibility on persons in a position of trust and authority who deal with children to report any suspected abuse.

Persons in these positions are known as mandated reporters. Connecticut General Statutes, Section 17a-101a, contains an exhaustive list of people in professions that have contact with or responsibility for children. Mandated reporters who suspect abuse, whether physical, sexual or neglect, must make a verbal report to the Department of Children and Families (DCF) as soon as possible, but in no event later than 12 hours after learning of the suspected abuse. It is suspicion alone that triggers the reporting requirement. Within 48 hours the reporter must file a specific form (Form 136) with DCF. Failure to report will result in prosecution of the mandated reporter. DCF’s website (http://www.ct.gov/dcf) contains an exhaustive list of potential reporters and clearly defines what and how such reports are to be made.

To further encourage reports, mandated reporters are immune from civil or criminal penalties if the report is made in good faith. The reporter need not have conclusive evidence that the abuse had actually occurred, before the requirement to report is triggered. In a case that I defended which achieved national notoriety, a well meaning pediatrician who suspected that an eleven year old might be pregnant, referred the child to an obstetrician to confirm his suspicions, but did not file the required report. He was prosecuted, despite a good faith effort to first determine whether any abuse had really occurred. The clear message to the medical community, and all other mandated reporters, was that they must err on the side of suspicion and leave it to DCF and the police to fully investigate.

Educators, coaches and all professionals who deal with children are well advised to know the requirements of mandated reporting. The PSU case will be the exclamation point on this absolute duty to intervene and report abuse.

The defense rested this week in the manslaughter trial of Dr. Conrad Murray. For those who followed the case the evidence was more suggestive of a medical malpractice trial than a criminal homicide case. The jury heard conflicting expert opinions on the standards of care for the administration of sedation and the obligation of a physician to render appropriate emergency CPR to a patient in extreme distress.

The case became a battle of experts. What was missing from the presentation was Murray’s testimony. The jury did get to hear from him through the prosecution’s presentation of his lengthy taped police interview. They heard about him from a cadre of former patients who extolled him as a compassionate, humane doctor. But they never heard Murray tell THEM what occurred in Michael Jackson’s home that tragic day.

Defense lawyers struggle with the decision whether to have a client take the witness stand. There is a risk versus benefit analysis we all do in reaching a recommendation. Most experienced trial lawyers will seek to avoid having the client testify; but, ultimately the decision belongs to the client. For that reason, Murray’s trial judge canvassed him on his decision in the absence of the jury .

A defendant has a Sixth Amendment right to confront his accusers. This means he may take the stand and also summon witnesses in his defense. Since this right is personal to the defendant he also has the option of waiving it. The court’s function is to ensure the fact that a defendant who declines to testify has made a knowing and voluntary waiver of that right after being fully advised. This protects the defendant but also to protects the record. If the defendant declines to testify and no canvass is conducted, a later reviewing court may rule that he was not fully informed and did not appropriately waive his rights. The net effect would be a reversal of an otherwise valid conviction.

If the accused decides to not testify he is entitled to an instruction to the jury that they may not draw an adverse inference from his “failure” to take the stand. That is the language the judge uses in providing this instruction. The better phrase, to my mind, is not that he has “failed” to take the stand (which implies the existence of an obligation to testify) but that he has “elected” to not testify. My father, in his trial days, was a firm believer that a jury wanted to hear a defendant deny an accusation. The more heinous the crime, the greater he felt the need was to put the client up there.

His is not the prevailing view of most practitioners. The modern trend is to avoid the client as a witness unless there is no choice. In a self defense case the client must nearly always testify. In other instances it is usually a “Hail Mary” pass in a losing effort.

There are a number of competing considerations that go into this decision. Does the client have a prior felony record? If so the jury will be informed that they way weigh that in judging his credibility. Has the client given prior inconsistent statements? The prosecution will use those prior statements to bludgeon him. And, most importantly, is he intending to perjure himself.

No attorney can ethically suborn perjury by eliciting testimony he knows is false. If the client insists on testifying in this instance the ethical attorney will inform the court, in the absence of the jury, that the client is going to testify in narrative fashion and the lawyer is not going to participate in the examination. Under federal sentencing guidelines there is an aggravating enhancement for obstruction of justice if the court believes the client has perjured himself on the witness stand.

So why wouldn’t Conrad Murray take the stand? A skillful prosecutor will use his cross to rehash the central points of the state’s case. It is a chance to end the case with a re-emphasis of all the strong points favoring conviction. The case then isn’t necessarily judged on the strength of the state’s proof as much as on the believability of the defendant. If the client falls apart on the stand whatever points the defense has scored in a lengthy trial become moot.

Defending criminal cases we often hear family or friends of the accused say, “He’s not in his right mind; can’t that get him off?” All jurisdictions recognize that mental illness can mitigate and at times offer a defense. In some jurisdictions (including Connecticut) the accused is found not guilty by reason of insanity (NGRI); in others the verdict is guilty, but insane. In either circumstance it is a determination by the court or jury that as a result of the accused’s mental state he is not responsible for the consequences of his action.

The English House of Lords first codified the defense in 1843 in response to hypothetical questions posed after the acquittal of Daniel M’Naghten for the murder of the secretary to Britain’s Prime Minister, Edward Drummond. A jury had found M’Naghten not guilty by reason of insanity. In response, an outraged Queen Victoria petitioned the House of Lords to establish strict rules for the use of this defense. The M’Naghten Rule became the standard for the emerging insanity defense. The Rule still applies in many jurisdictions, although many more states have adopted a more liberal insanity defense.

Under the Rule, “Every man is to be presumed to be sane, and … that to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of mind, and not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong.” Thus, the mere fact that an accused was mentally ill was not sufficient to avoid conviction, that illness must have caused the accused to fail to distinguish right from wrong.

In 1972 the American Law Institute announced a broader definition in its Model Penal Code, which forms the basis for Connecticut’s present iteration of the defense, Sec. 53a-13(a): “In any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law.” As an affirmative defense the accused has the burden of proof. In the orderly progression of trial the state must first prove the charge beyond a reasonable doubt. The defense then must establish insanity by the lesser burden of preponderance of evidence. Expert testimony is required.

A Hartford jury this week rejected that defense in the trial of Richard Shenkman. Shenkman was accused of kidnapping his ex-wife, Attorney Nancy Tyler, and holding her hostage in a dramatic standoff with police. Ms. Tyler showed remarkable strength and grace throughout the ordeal and her recent testimony.

The defense rises and falls on the strength of the expert’s testimony. The art in persuading a jury to excuse such heinous and clear cut criminal conduct is often in the manner of presentation of the expert testimony. I have had mixed success in NGRI cases using one of Shenkman’s medical experts. In each case the client was truly mentally ill. An artful prosecutor will attack the manner in which the defense expert testifies as opposed to fencing with the expert over the substance of his/her opinion.

In one murder trial I had, this same expert was confronted with a question referencing his “report” that he had prepared. Rather than address the substance of the question the doctor chose, instead, to spar with the prosecutor over the semantics of whether the document was a “letter” rather than a “report.” No amount of preparation of the expert could have avoided what followed. It became a battle of wills, with the end result that the doctor appeared pompous and arrogant. What he said was lost in the hour long exchange that was generated over these semantics. In final argument the prosecutor challenged the jury on how they could accept the substance of the doctor’s opinion in light of the stubborn refusal to acknowledge that there was no real distinction between a “report” and a “letter.”

Sometimes it is not the strength of the message but the foibles of the messenger that predominate.

There is no greater privilege of confidentiality than that accorded the communications between an attorney and a client. No one, not even the Supreme Court, can invade that privilege without the express consent of the client. The rule appears in every state’s Codes of Professional Responsibility and Evidence. The only true exception is when an attorney has reason to believe the client is about to commit a crime.

The privilege goes to the core of the attorney-client relationship. We are the guardians of secrets. Unless a client can safely confide in us we are rendered ineffective. The privilege is broken when we permit a third party to be part of the communication. That third party is free of the constraints of the privilege and may broadcast the most private information learned, to the client’s eventual detriment. Protecting that privilege is the responsibility of the attorney. Too often a client will appear for a conference accompanied by a companion or spouse for moral support. The smart lawyer politely excuses the companion, understanding the significance of allowing that person to share the confidential discussion that is to ensue.

A controversy is brewing in our courts with the recent disclosure that a fellow defendant was wired by law enforcement and sent into a private conference between an attorney and client. Apparently, this egregious practice is longstanding in New York state, but foreign to Connecticut; however, that is a column for another day.

There is now another landmine for the lawyer and client: electronic communications. Writing this I feel like my grandfather, who was born in the era of horse and buggy and saw us land on the moon before his death. When I started to practice we sent letters, typed with carbon copies for the file (for the very young you can read about Carbon Copies on Wikipedia). We were careful to destroy the carbon paper lest someone happen upon it and read a privileged communique. Now we are in the age of social media, twitter, texting, and emails.

We have all had the experience of trying to reach a busy person–who answers the phone these days? The most direct method to get that person’s attention: text or email. Smartphones have taken our email accounts off our desktop and put them in our pocket. This has now become the fastest method of attorney-client communications. There are even billing programs that will track the times spent on these exchanges so no second is missing from the invoice. For the busy young lawyer on the go this is a godsend; or is it?

A recent opinion from the American Bar Association advises about the potential pitfalls in using emails and text messaging to transmit confidential communications, particularly where the communications are over work place devices or systems. Lawyers can no longer guarantee that your employer or others within your home will not have access to personal email communications and text messages. Before permitting this as a means of communication with your lawyer you should make an inquiry as to the level of privacy protection that any such communications will have.

For example, although many employees may be aware that accessing their personal email via a work computer might potentially allow the employer to view their personal email, you may not be aware that accessing your personal electronic messages via an employer-provided smartphone might raise similar issues. Text messaging may raise comparable concerns.

Employer-provided computers, systems and smartphones are not the only concern here. Even where you access personal email on a personal smartphone or home computer, there may be access by others, such as family members, particularly in cases such as divorces or will contests. Other problems may arise with the use of hotel or library computers as well.

You should discuss this with your attorney and investigate whether there are any potential privacy leaks that could affect you before communicating by electronic means.

The first Monday in October marks the traditional opening of the new term of the United States Supreme Court. The Court term extends to the following October. The Court was created by the Judiciary Act of 1789, and has annually reconvened since its organization in 1790. The nine justices are lifetime Presidential appointees, confirmed by the Congress and only removable by impeachment. Since only death or voluntary retirement of a Justice can impact the court’s conservative/liberal composition, serendipity plays a large part in the “political” composition of the Court.

Decisions are rendered either by a majority of the Court (5-4 at the least) or by plurality (where a majority of the Justices concur in the result but not the legal reasoning supporting it). One member of the Court is charged with writing the majority opinion, if it is a majority ruling. Dissenters will pen their own opinions. While not having the force of law, dissenting opinions can later reshape precedent if the composition of the Court changes and the issue appears before them again.
In a plurality ruling one member will pen the plurality decision, and the others concurring in the result may write concurring opinions.

With the hottest topic in this election cycle being the constitutionality of ObamaCare, the watch is on for this issue to reach the Court. Recently, the Obama Administration elected not to seek a rehearing of the 11th Circuit Court of Appeals ruling that the law exceeded the constitutional powers of Congress. As as result the case will be argued this term. A decision could come in time to impact the 2012 election.

The Court’s jurisdiction stems from the Constitution. It has both original jurisdiction and discretionary appellate jurisdiction. Article III, sec. 2 provides: “”In all Cases affecting Ambassadors, other public ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

The Court’s appellate jurisdiction is created by statute (28 United States Code, Section 1251). The Court will review decisions from the United States Circuit Courts of Appeals, and final decisions by the state courts of highest appellate jurisdiction. It is limited to cases raising federal statutory or constitutional issues. Unlike the state appellate courts, the Supreme Court does not have the authority to issue advisory rulings. Original jurisdiction is generally limited to disputes between states, and is exceedingly rare.

Petitioners seeking review must do so by filing a petition for a Writ of Certiorari (shorthand: Cert.). Supreme Court Rule 10 provides that Cert. will only be granted for “compelling reasons.” They are: “(a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s supervisory power; b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals; (c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.”

The 11th Circuit decision conflicts with an opinion upholding ObamaCare by the 6th Circuit. Thus, the battle lines are drawn and healthcare now has a date with the Supremes.

In high school many of us read the classic 1984, in which George Orwell posited a society where citizens were subject to constant surveillance by the omni-present Big Brother. Advocates of civil liberty often pointed to Orwell’s classic as the end result of a society where individual privacy rights were subordinated to the public “good.” In 1967 the United States Supreme Court issued its landmark privacy decision in U.S. v. Katz, ruling that the Fourth Amendment to the Constitution grants each of us an expectation of privacy in certain aspects of our lives. That expectation triggers the need for a judicial warrant to justify police or governmental intrusion into those private areas.

Technology has evolved and in its evolution law enforcement has been provided with multiple investigative tools. In November of this year the Supreme Court will once again consider the extent of the Fourth Amendment’s expectation of privacy when it reviews a decision from the Circuit Court of Appeals for the District of Columbia, United States v. Jones. The issue is the extended surreptitious use of a GPS tracking device to track the movements of Jones’ automobile 24 hours per day for a month. A court had previously granted agents the use of the device but for a limited period of time. The agents continued the tracking after the expiration of the court order. The information gleaned aided the Government’s proof in Jones’ trial for conspiracy to distribute narcotics.

To trigger the Fourth Amendment’s warrant requirement the first issue for that court was whether the use of a GPS tracking device on a vehicle that is traversing the public streets is a search within the meaning of the Amendment. Other Courts of Appeals have ruled that this does not constitute a search. An exception to the Amendment’s expectation of privacy right exists when citizens do not act in a manner suggesting that they do not expect government intrusion. A person in his home clearly has this expectation of privacy. When that same person places his garbage on the street he has abandoned that expectation of privacy in the contents of the garbage bag. Thus police seizures of trash and subsequent discovery of evidence hidden within does not violate the Fourth Amendment.

In Jones case the Government argued that there is no expectation of privacy in tracking a vehicle moving on the public streets as that can be observed by anyone at any time. Despite the public nature of such movement the court in Jones ruled that no one would anticipate that their movements would be tracked constantly, for a month. Video surveillance cameras are everywhere in our cities. Inspection of these videos has become an important tool for law enforcement investigating street crime. Defense lawyers as well have learned to seek information from street surveillance cameras. In a highly notorious case I defended of a man accused of being a serial stalker, video surveillance from a gas station’s camera actually demonstrated that the “victim” had set up my client, and, was actually the stalker, not him, leading to the dismissal of all charges.

The Fourth Amendment does not apply to private citizens or merchants utilizing video surveillance to protect their property and its surrounding curtilage. The Amendment is only applicable to those situations where there is government involvement. Private citizens violating another’s expectation of privacy may lead to a civil lawsuit for the invasion but may also provide the fruits of that surveillance to the police. Use of these cameras on a public street, since they are limited in what they view does not constitute the wholesale invasion of the expectation of privacy that concerned the Jones‘ court

Increased vigilance since September 11th and the advances in surveillance technology continue to challenge courts. Yes, George Orwell, Big Brother is watching.