Michael Eriksson's Blog

A Swede in Germany

Posts Tagged ‘justice system

German justice and prejudice against the written word

with one comment

On the good-news side, German law enforcement is actually looking into Koch Media (cf. [1], [2]), and I was called in to make a statement earlier this week.

On the bad-news side, this experience gave a second (cf. below) example of severe flaws in the testimonial process, pointing to the benefits of written statements.

Consider that:

  1. I was called to appear in person, despite having already given what I consider sufficient written information—which I would, obviously, have been easily able to amend in writing, had the need appeared.

    Going by what the interviewing police officer said, I suspect that he had problems comprehending the references to blog entries in English (in my German complaint) and/or was thrown off by the more general discussion of industry-wide issues in these blog entries. Had he asked me for a more concise German text, I would have provided one gladly.

    With a written statement sent by post, we would all have had less effort.

  2. This cost me: A fifteen minute train-ride + time waiting for the train + time getting from my apartment to the first station + time getting from the last station to the police + a security buffer, for a total of at least three quarters of an hour in one direction. Another twenty or twenty-five minutes waiting for my turn (past the time of the appointment, not including the planned buffer), because another interview took far longer than planned. Another half-hour to an hour* for the actual statement, including introductions, re-iteration of what I had already written, re-stating things that the police officer seemed to miss, and his hunt-and-peck typing. Another twenty-something minutes back to my apartment.**

    *I failed to look at my watch, but it was fairly lengthy.

    **I did not need a security buffer and also caught a speedier train (RE instead of S-Bahn, for the Germans).

    In my case, this is a chunk out of my day (if, admittedly, a lot of it could be used for reading); for many others, it requires taking time off from work—for a commuter, possibly the entire day.* In the latter case, questions like lost income appear. While lost income is allegedly re-imbursed, someone (i.e. the tax-payers) still has to pay for it. Then there is productivity loss for the employer (not re-imbursed), travel costs (re-imbursed), and whatnot.

    *The situation is very similar to my recent writings on deliveries and delivery times.

    To boot, the interview phase took time away from the police officer, which might have been spent with other tasks or (when factoring in similar cases Germany-wide) have led to less personnel and office costs for the police and, thereby, the tax payers.

    With a written statement sent by post, these costs and time loss would have been considerably smaller.*

    *Yes, there might be cases where a personal appearance is beneficial, e.g. because the police cannot predict the questions in advance or because the interviewed party is unable to produce a coherent text. No, this is not one of these cases: no new information appeared in the statement and any questions that might have been relevant could have easily been identified in advance. Further, the officer in question was himself a quite weak writer; and even in a case where questions were more likely to arise, a thought-through written statement would have allowed better preparations and a more productive interview at a later date.

  3. Not only did no new information appear in the statement, but I would also have been at a disadvantage if such had been needed: As is clear from the situation (cf. [1]) my memory cannot reasonably be relied on for early events, relevant information for describing the misleading information and the product at hand has been researched and put in writing (and my memory will be weaker than that writing), and if additional information was needed, I would be better of at home—with access to the Internet and the product (a DVD box, with plenty of writing on it).

    While my case is a little atypical in this regard, it will be quite usual for others to benefit from more time to think, the ability to check this-or-that in their records or on the Internet, the opportunity to order their thoughts in a more structured manner, whatnot.

    With a written statement sent by post, my input would have been more accurate and more helpful.

  4. The resulting statement, purporting to be my words, was written on the level of a high-school drop-out. This, then, is the text that will eventually be presented to (the German equivalent of) the DA’s office,* with a corresponding low credibility and lack of clarity/precision. To paraphrase an example from memory** into English: “I bought the DVDs in some store. I don’t remember where. This was a few years ago. I don’t remember when either.”***

    *In my understanding, the officer was not himself to be involved with any investigation, but merely taking a statement on behalf of the DA. He gave the verbal (possibly, incomplete) impression that taking statements in various cases was his job.

    **I was not given a copy, which is it self bad—a copy should have been handed out as a matter of course, to make sure that the signer knows what he has signed, that he has the ability to check for things accidentally left out, even at a later date, etc. (With several papers to sign, I also did not notice until too late that I had not received one.) Of course, with a written statement sent by post, I would automatically have had a copy.

    ***In contrast, something by me might have read: “Due to the length of time passed, my memory of the details is vague; however, the purchase took place in a physical store several years ago, likely 2015. If so, it was likely in [a certain store].”

    Now, my German is not perfect and a text by me might well have contained language errors. I would not have a problem with signing my name to them, however, because they are my errors. Here I have to put my name to words that absolutely would not have been written or stated by me, and that make me seem like a border-line retard—and with that I have a major problem. I was, in fact, one step away from simply refusing my signature (but decided to send in a written statement in parallel instead). To boot, there was at least one language error in the officer’s text too (an incorrect sentence break).

    With a written statement sent by post, the DA would have received a more intelligent text and would have been better able to judge me, my intentions, and my preparation.*

    *What should matter is the law and whether is has been violated, but, in real life, the persons involved will often matter too. Ditto, and with some right, whether someone just complains to the police, makes a vague statement about not remembering, and then slinks away—or whether someone makes informed and articulated statements, has a clear intent, and stands by his words.

  5. While this statement did not distort more than language, distortions of actual content, intentions, whatnot, do occur.

    In my case, it has been 50–50: The first (and so far only other) time that I gave a statement, some fifteen years ago,* non-trivial such distortions took place, both through “Chinese Whispers” and through a (natural) restriction to that which had actually been discussed. Here too, the discussion was led by the officer in a question/answer format, and he skipped over parts of what I had already submitted in writing**. (And here too, the well-short-of-Goethe formulations were the police officer’s—-not my own.) The situation was made worse by the officer insisting that he read the statement to me, and that I (the much stronger reader…) just sign it unread—I did not comply, seeing that this would have made my signature a complete travesty.

    *I am, unfortunately, a little vague on the details by now.

    **Note that this comes with a considerable risk that relevant input will never be given consideration, e.g. because someone makes a decision not to investigate further based just on the “official” statement, does not pay attention to the totality of the file during investigations, or similar.

    In the “Koch Media” case, I tried to steer against things being left out, drawing on my previous experience, but I strongly suspect that further distortions would have taken place without this effort. (Notably, I had to emphasize that I had given Koch Media an opportunity to react, and had received no such reaction, and that my previous texts explained why e.g. an accidental error on behalf of Koch Media was highly implausible.) To boot, I could only do this to the degree that I actually remembered things, which could have been a severe obstacle in a case with more events or details involved.

    With a written statement sent by post, the full events, my reasoning, whatnot, would not be in danger of distortion.

  6. The statement was also deficient in principle from another point of view: It was written as if it had simply taken down a spoken monologue, including use of quotation marks. In reality, it reflects what the officer found worth mentioning from a dialog driven by his questions. The DA is likely aware of such practices, but it is a potential source of confusion and simply unethical.

    A side-effect of this is that there is no excuse for using the language of a high-school drop-out: Because we do not have a monologue that is taken down verbatim, why should e.g. a sentence structure be used that emulates the spoken language? (But I stress that I would not have formulated myself in that manner even when speaking, as opposed to writing. People tend to speak differently than they write, but they do not automatically turn into high-school drop-outs. Indeed, if he had stated upfront what he wanted to know, I would have been able to dictate something better off the top of my head, be it stylistically or with an eye on e.g. structure).

    With a written statement sent by post, there could be no such confusion.

  7. The previous item at least points to the risk of leading questions providing an incorrect or technically-correct-but-misleading statement. While I do not claim that this happened here, such problems do occur, be it out of incompetence, prejudice, the wish to see a “politically” convenient result, or similar.

    With a written statement sent by post, this risk is reduced.

Unfortunately, the German justice system seems to have an obsession with oral statements and whatnots, even when the written word would have been superior, including for the increased ability to form a strong and thought-through argument. I can e.g. recall reading a blog post by a “Schöffe”*, who lamented that his judge had denied him access (!) to the files of a case that he was to co-judge—because the spoken word was all that mattered in court. Under such circumstances, it will be very hard for a Schöffe to do his job properly—and I have great fears as to the quality of the judge’s work too, with such an anti-intellectual attitude.

*A type of lay-judge, elected for five years, who has an equal vote with the (professional) judges in at least some trials. (Where e.g. the U.S. has a judge and a jury with different roles, Germany often has a small group of judges, some lay- some professional, simultaneously filling both roles.)

Excursion on historians and the like:
An unfortunate side-effect of this type of amateurish statement taking is that future historians who dig into the material can get an extremely wrong idea, with regard to what took place during such sessions, the education/language level of the population, and how people expressed themselves in general.* With people of individual historical interest, future biographers might be led severely astray.

*I am uncertain whether documents of this type are publicly available (now or after some time)—but a few hundred years from now, current rules are unlikely to matter in the first place.

Excursion on other problems this week:
I was originally invited* for an earlier date. Being ill, I sent an email to decline due to personal reasons, giving an indication of when I would be available. I received an automatic notification of receipt, and heard nothing more in the matter until the second invitation—accompanied by a note threatening me with a forced appearance, should I not appear voluntarily.**

*I am uncertain whether the English “subpoena” applies in this case. However, it does go beyond a regular, ignorable, invitation.

**Note that while I could see a cause for this in the case of a regular witness or the accused/suspect in a matter (when unexcused!), it seems absurd when applied to the complaining party. Here a better remedy would be to abstain from further proceedings due to non-cooperation.

As I arrived, almost the first thing out of the officer’s mouth, narrowly pre-empting my bringing the topic up, was to explain the need for this note with the claim that I had not appeared the previous time, and that I had presented no excuse for not appearing. As I pointed out my email and the notification of receipt, he claimed to have no knowledge of it.*

*I am far from certain that he was both telling the truth and innocent of own errors, e.g. of having accidentally deleted the email unread; however, it is possible that someone else is to blame, seeing that the only email address presented in the invitation was to a police-internal “mail center”, which might have failed in its promise to forward the email immediately.

Interestingly, in this email, I had made a point of mentioning my prior experiences and the drawbacks of answering questions without research time and whatnot (cf. above), and suggested a written statement based on any questions the police might have. If I had received a sensible answer to this email, all parties would have had less effort, the costs would have been smaller, and the DA would have received a more useful text…

Excursion on cross-examinations:
The above is not necessarily an argument against cross-examinations in court, notably through the difference that they allow the defense the opportunity to probe for weaknesses and contradictions in a testimony, while the above deals with an early input, at a time when the defense does not even yet exist. (However, even in court, I consider it wise for text to be the main form of input, because an oral testimony can easily and accidentally leave too much out, be too poorly reasoned, and similar.)

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Written by michaeleriksson

April 14, 2019 at 3:51 pm

Here we go again… (Jason Stockley trial and riots)

with 2 comments

Apparently, there has been another acquittal of a White guy who killed a Black guy—and another riot…

This ties in with several of my previous posts, including my recent thoughts around Charlottesville controversy and my (considerably older) observations around the Zimmerman—Martin-tragedy.

What is deplorable here is not the killing or the acquittal (see excursion below), but the utter disregard for the rights of others, for the justice system, and (in a bigger picture) democratic processes that is demonstrated again, and again, and again by certain (at least partially overlapping) groups, including parts of the Black movements, factions of Democrat supporters, and Leftist extremists (including self-appointed anti-fascists, notably various Antifa organizations, who are regularly worse fascists than the people they verbally and physically attack).

Looking at the U.S. alone, we have atrocious examples like the reactions around the Michael Brown and Treyvon Martin shootings, trials, and verdicts (followed by racially motivated or even racist outrage by large parts of the Black community) or the post-election protests against Donald Trump* (he is elected by a democratic process the one day; starting the next day, long before he even assumed office, there are protesters taking the streets to condemn him as if he was Hitler reincarnate). Of course, there is a more than fair chance that the Charlottesville riots (cf. link above) partially, even largely, fall into this category—here Trump is perfectly correct.

*Can or should we be disappointed, even distraught, when we feel that an important election has gone horribly wrong? Certainly: I would have felt horrible had Hillary Clinton won. (While I could live with Obama.) Would I have taken to the streets and tried to circumvent the democratic processes (had I been in the U.S.)? Hell no! When an election is over, it is over. (Barring election fraud and “hanging chad”-style issues.) Feel free to criticize poor decisions, make alternate suggestions to policy, attack abuse of power or Nixon-/Clintonesque behavior in office, whatnot—but respect the election result!

In Sweden and Germany (cf. the Charlottesville post), it is par for the course for any “right-wing” demonstration to be physically attacked by fanatical Leftists. Or consider the treatment of SD in Sweden. Or consider how, in Germany, immense efforts are taken to destroy the nationalist NPD, while a just as extreme and even more hare-brained descendant of the SED actually sits in parliament, and the far more extreme MLPD, openly calling for a communist revolution, is left in peace… Or take the methods of e.g. feminists* that I have written about so often, where dissenters are arbitrarily censored, unfairly maligned, shouted down, have their opinions grossly distorted, … In fact, at least in Germany, many Leftists seem to think that the way to change peoples’ mind is to make as much noise as possible—with no effort put into forming a coherent argument or presenting actual facts. To take the streets with banners, drums, and empty catch phrases far away from the politicians seems to be the only thing some of them are able to do.

*The old claim family that “If you want to anger a [member of a non-Leftist group], tell him a lie; if you want to anger a [member of a Leftist group] tell him the truth.” may be an exaggeration and over-generalization, but there remains a lot of truth to it. When applied to some sub-groups (notably feminists, the extreme Left, the likes of Antifa, …) it comes very close to being the literal truth. They walk through their lives with a pre-conceived opinion in their heads, blinders on their eyes, and simply cannot handle it, when some piece of contrary information manages to sneak into their restricted field of view.

There is a massive, truly massive, problem with large parts of the Left and its attitude that “if we don’t like it, it must be destroyed by whatever means necessary”—no matter the law, civic rights, democratic values, …

This insanity must be stopped!

Please respect freedom of speech!

Please respect democratic processes!

Please understand how “presumed innocent” and “beyond reasonable doubt” work in a court!

Please look at the actual facts of a matter before exploding in rage!

Please save the riots for true abominations—and direct them solely at the authorities*!

Etc.

*A common thread of (even politically motivated) riots is that they hit innocent third parties worse than the presumed enemies of the rioters, having more in common with random vandalism and violence that with political protest.

Excursion on the acquittal: As I gather from online sources, e.g. [1], [2] the killer was a police officer at the end of a car chase of the deceased, who was a known criminal* on probation—and who had heroin in his car. The exact events at and around the end of the car chase are not entirely clear, but applying, as we must and should, “reasonable doubt”, it is clear that there was nowhere near enough evidence for a conviction for the raised “first-degree murder” charge—even had the police officer been guilty (which we do not know and, basing an opinion on news reports, we do not even have a strong reason to suspect). Under absolutely no circumstance can we arbitrarily apply different standards of proof to different types of crimes (including sex crimes!), to different types of suspects, or based on our personal involvement or pet issues. To boot, we must understand that while e.g. a jury can contain members who have preconceived opinions and personal sym- or antipathies, who fall for peer or press pressure, who are deeply stupid, whatnot, the jury members will usually know far more about the evidence situation than even knowledgeable observers—let alone random disgruntled citizens: If they see things differently than the disgruntled citizen, then the explanation will very often be that they know what they are talking about and that he does not. (As can be seen quite clearly with the Zimmerman trial. Cf. earlier link.)

*An interesting observation is that all or almost all similar cases I have seen, have had a victim or “victim” (depending on the situation) that was not only Black, but also had a criminal history, albeit sometimes petty. This includes Anthony Lamar Smith, Michael Brown, Treyvon Martin, …—even Rodney King, who set his car chase in motion when he tried to hide a parole violation… (Which is not in anyway to defend the excessive violence used and unnecessary cruelty shown by the police in that case.) This is important: These cases have not occurred because of random harassment or (at least exclusive) “racial profiling”—these are current or former criminals, many which actually were engaging in criminal behavior during or immediately prior to the events.

There is a problem here, but it is certainly not the acquittal and almost certainly not the behavior of this specific police officer. Neither is there reason to believe that the killing was racially motivated. Neither is there reason to believe that an innocent man was killed (as might or might not have been the case with Treyvon Martin)—this was a criminal being killed while perpetrating crimes and trying to avoid arrest*. No, the problem is the general thinking within the U.S. justice system that guns are a reasonable early recourse and that it is better to shot first than to be shot. (This could in turn be necessitated by the surrounding society or the attitudes of the criminals, but moving beyond “motivated” is conjectural from my point of view.) Possibly**, use of tranquilizer guns might be a viable option. Possibly**, a rule that guns must only be used against a criminal/suspect himself with a drawn gun could work. Possibly**, a directive makes sense that an attempt must first be made to take someone out by other means*** before a likely lethal shot is allowed to be attempted. Either which way: If that would have been a legitimate cause for a riot, it should have taken place after the actual shooting—in 2011.

*He might not have deserved to die for these crimes—even criminal lives matter. However, there is a world of difference between killing an innocent, or even a hardened criminal, just walking down the street, and killing someone who has just recklessly tried to outrun the police in a car chase. If in doubt, he would almost certainly not have been killed, had he surrendered peacefully in the first place. Notably, without the heroin (and possible other objects) that he criminally possessed, he would have had no obvious reason to run.

**I am too far away and lack relevant experience to make more than very tentative suggestions, and I make no guarantee that any of the mentioned examples would prove tenable.

***Depending on the situation, this could include a tasering, a tackle, a (mostly non-lethal) leg or gun-arm shot, …; possibly, in combination with waiting for an opportunity for a reasonable amount of time. (In this specific case, e.g. that the suspect leaves the car.)

Written by michaeleriksson

September 16, 2017 at 9:39 pm

A call for greater limits on governmental surveillance of the population

with 6 comments

It feels like I cannot turn around without reading more news concerning surveillance of citizens by their own (or other) governments in various forms. This especially where computers are concerned, e.g. requests that the use of the infamous German “Bundestrojaner”* be expanded.

*A tool ordered and used by the German government to infiltrate computers in the same way that some illegal malwares do.

This is extremely unfortunate for a number of reasons, including (but likely not limited too):

  1. The contents of a computer can be extremely intimate and personal in many ways, some obvious, some not. If someone has access to the contents of a computer, this can* give insights into the owner in a manner that is usually not achievable e.g. through getting an ordinary search warrant and going through a house, top to bottom. Even a diary is typically less revealing, because a diary will be incomplete through factors such as limited self-knowledge, self-censorship (due to the fear that others do read the contents), and lack of time or space. A computer can contain personal notes, private correspondence, fan-fiction never intended for publication, … among the more obvious items; surfing habits, movie preferences, porn interests, sleeping patterns, … among the less obvious. This only passively reading the contents on or communications with the computer—install a surveillance tool and there is no limit to what can be found. A computer can simply give so much private information about someone that an intrusion can only very rarely, if at all, be ethically justified—we are on a completely different level from e.g. a (physical) search warrant, more comparable** to actually being in the head of the computer’s owner.

    *There is a great variation from person to person, but by now a majority would likely already be included in this “can”—and the proportion is rapidly increasing.

    **In some cases, myself included, there might actually be more to be deduced from the computer’s hard-drive than from the owner’s memory.

    If in doubt, Richelieu allegedly said If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him.—imagine what even a far lesser conspirator could do with an entire computer… Indeed, there are a number of things on my computer that could give a very wrong impression, including e.g. materials that I have down-loaded according to the maxim “know your enemy”—but which a naive or hostile spy could misconstrue as support for the corresponding ideology or whatnot.

  2. Digital evidence is so easy to falsify that its actual value is far smaller than for physical evidence. Yes, physical evidence can be planted. Yes, photos and film clips can be manipulated or even, by now, generated through CGI. No, they are not comparable to e.g. claims about what was found on a computer. As soon as another party has the ability to write to the disk, all bets are off. If a knowledgeable entity like the NSA decided to frame someone, it would be a walk in the park, if they had digital access*—and so long as digital evidence is allowed in a court system that has yet to catch on to the uselessness of such evidence.

    *Note that this need not be a case of physical access. Tools like the aforementioned “Bundestrojaner” could equally well be used to plant evidence remotely.

  3. Many of the measures used by governments risk the security of computers from other parties*. Consider e.g. the ever popular idea of limiting the key length of encryption methods or forcing software makers to install backdoors in the software for use strictly by the government and strictly after a court order: The shorter key length still makes it far easier for other hostiles to attack the computer; at least some of the backdoors will be discovered or published sooner or later (probably sooner…), and even those that go unpublished can still introduce weaknesses. Or consider recent claims of the U.S. government keeping back information about discovered security holes (so that they can use them), which prevents the software makers from fixing the problems, which opens the door for independent discovery and abuse by e.g. computer criminals…

    *An interesting physical example of the same principle is the “TSA lock” often seen on luggage today: It is there so that the TSA (and only the TSA) can unlock a piece of luggage without damaging it—ostensibly, all in the interest of the travelers. In reality, most (all?) key patterns have been leaked to the Internet, are available as input files for 3D printers, and any Tom, Dick, Harry with a 3D printer can get a set of physical keys and unlock any “TSA lock”…

    Other problems can occur that are out of proportion in comparison to what used to be the case. For instance, if someone was suspected of preparing a bank robbery or a terrorist attack, hording child pornography, trying to subvert the government, …, in the past, there might be a thorough house search and possibly some temporary confiscations, but by-and-large the house was still usable, most of the contents would still be present, and (barring an actual find) life would go on as before, except for an emotional scar. Today, the computer(s) would simply be confiscated, likely including any backups, and the victim/suspect would be severely hindered, possibly to the point that he cannot complete important business communications on time, cannot access important personal data, …

  4. For a “democratic”* system to work, one of the main purposes of the constitution and laws has to be to protected the citizens from the government. The system must work even when the government is evil. If the current government happens to be good, the laws still has to protect the citizens, because there is a considerable risk that the government will be evil at some later time. To boot, the very concepts of “good” and “evil” can be very subjective, with the most evil regimes (by the standards of many others) often being convinced that they are the good guys, actually defending** the world against evil… To boot, even a more or less “good’ government can contain bad apples, e.g. a DA looking for re-election and willing fake evidence for a conviction with great PR value or a policeman who “knows” who the perp is and plants the evidence that “should” have been there. To boot, the machineries of bureaucracy, the incompetence of civil servants, and similar problems, tend to make even the most well-intended system fall well short of “good”.

    *I am always at loss to translate concepts like “Rechtsstaat”, but (strictly speaking incorrectly) variations of “democratic” are often used, as are “civic rights”. U.S. citizens often refer to the opposite with variations of “unconstitutional”.

    **One of the reasons that I tend to judge people, parties, countries, …, based on their actions rather than their opinions: Fascist is as fascist does.

    The current trends make a mockery of the principles behind a sound constitution. How can the citizens defend themselves when the government uses any and all means to circumvent security—including absurdities like requiring suspects to hand out passwords to investigators.

Correspondingly, I call for a complete reversal of course, where “digital trespassing” is considered a very severe crime, government surveillance of its citizens is reduced to the absolute minimum, tools like the “Bundestrojaner” are categorically and unequivocally forbidden, the citizen’s right to protection (including a very wide interpretation of “taking the fifth” and its equivalents) against the government is given priority, etc.

Two concluding remarks:

Firstly, while there may be cases so extreme that they do require or can justify at least some of the above methods (say, that someone is suspected of planning a bombing of a soccer stadium), these cases do not, can not, and must not justify the extension of these methods to more trivial suspicions. The “slippery slope” is a particular danger, where data is gathered or methods used today for the specific purpose of investigating terrorism, but where the police, certain politicians, …, will clamor for their use for less severe crimes tomorrow—and where the movie and music industry will demand their use for civil cases two days from now.

(And even with extreme cases caution must be used, because one of the things a good justice system should protect against is accusations raised out of malice. If standards become to different when the crime changes, the malicious party only has to alter the crime of the accusation in order to circumvent the protections. I have myself been torn out of sleep and forced to open the door to police in the middle of the night, because a mentally demented piece-of-shit landlord had claimed that I would keep a woman captive in my apartment. Because the alleged crime was so urgent, the police insisted that they did not even need a search warrant…)

Secondly, there is always a risk that data is spread to the wrong group of people or the wrong time, as soon as even a non-hostile entity gets its hand on it. (E.g. because someone hacks a police server with confiscated data, because an individual member of the police, deliberately or accidentally, takes data home, because some juicy piece of information is leaked to the press in exchange for money, …) For instance, what if an in-the-closet gay movie star or politician is the suspect of a crime, acquitted, but the fact that he is gay is discovered and eventually made public without his consent? At a minimum, this is severe violation of his privacy. In a less gay friendly era or a less gay friendly country than e.g. modern Germany, he could have a very severe problem, starting with a termination of his career.

Written by michaeleriksson

May 24, 2017 at 12:27 am