Letter
Home Page Up One Level Introduction Affidavit Letter

 

William F. McIver II, PhD.

127 West 96th. St. (PHA)
New York, NY 10025

_________________________________________________________________________________

(212) 663-0833

Sent in 1994

Hon. Rives Kistler
Oregon Supreme Court
1163 State St.
Salem, OR 97301-2563

Justice Kistler:

      I write this on the chance you've cast off your prosecutorial blinders.

      In a 11/27/92 brief to the appellate court you gave a starkly deceptive version of
testimony given by a state and defense expert in a post-conviction hearing.  You parroted
the judge's Memorandum of Opinion without reading the transcript.  Or, with a highly
selective inattention to fact, you read it and cherry-picked to win a case.  No matter, the
result was the same. You denied appellate justices the truth.  Which, if they were
objective, would have led them to grant a retrial. I enclose your brief and a transcript of
the expert’s actual testimony.

      This isn't an attempt to argue the case. I'm simply going to lay out examples of your
false statements and invite you to correct the situation.

      Summary: I was found guilty of tampering with evidence prior to a civil malpractice
case. Of getting a former secretary to erase the plaintiff's name from a 5:00 PM slot in a
12/16/83 appointment book page and rewrite it in the 1:00 PM time so it wouldn't look as
if I saw her after hours.

      To quote your opening paragraph:

      "Petitioner was convicted of tampering with witnesses and evidence.  His
conviction was based primarily on his secretary's testimony that petitioner directed her to
change an appointment log. On post-conviction, petitioner argued that because the log
had not in fact been altered, his secretary's testimony was either perjured or inaccurate.
The post conviction court found, however, that petitioner offered "no persuasive or
credible evidence" to support his claim... Its finding is amply supported by the evidence.
The state offered petitioner's earlier sworn testimony that his secretary "erased or crossed
out" entries in the appointment log and put them in at different times. ... Petitioner's
expert conceded that the appointment log could have been altered if it were done
carefully, and the state's expert agreed. Far from being "uncontroverted," as petitioner
argues, the evidence was both controverted and supported the post-conviction court's

2

finding. If the log were altered, then the factual predicate for petitioner's post-conviction finding claim fails."

      Conversely, if the log wasn't altered, the post-conviction claim is true.

      It comes down to whether a name in an appointment book time slot was erased.
Prosecutors initially insisted, and had their witness repeatedly testify, it was the 5:00 PM
slot for 12/16/83.  But when, prior to a post-conviction hearing, she was confronted with
the actual page, she admitted there was no erasure there.  The prosecutor immediately
called for a break and took her outside the deposition room.  Her witness returned to say
the time she'd claimed to a grand jury and in civil and criminal trials must have been
wrong.  It might have been the 4:00 PM slot.

      You sidestepped both expert's testimony they found no signs of erasure at either time.
Here's what you wrote about Dr. Grimsbo's testimony out of context:

(p. 4): "The primary factual inquiry at the post-conviction trial was whether the
appointment log had been altered. More specifically, because the names were written in
pencil, the question was whether there was evidence that the names had been erased. Dr.
Ray Grimsbo was petitioner's expert witness.  Dr. Grimsbo testified that he "found no
indication" of "any alteration, obliteration, or prior writing."

"Finally, the deputy district attorney impeached Dr. Grimsbo's opinion.  As the post-
conviction court explained, Dr. Grimsbo "backed off his initial opinion quite
substantially, conceding that he [previously had] told the District Attorney, in substance,
that he might not see something [some alteration] by way of erasure if "someone had
erased very cleverly."

(p. 9-10) "It is difficult to see how petitioner can regard evidence as "uncontroverted"
when he testified that Mrs. Dobson "erased or crossed out" the patient's later appointment
at his direction and when petitioner’s own expert testified that the log could have been
altered if it had been erased very carefully."

      Dr. Grimsbo examined the document with his naked eye, a Sony infrared video
camera, various filters, and hot light to test for graphite particles left by erased writing.
He wrote his initials on a test section and erased them.  He used a stereo microscope at 20
to 30 power and saw erasing disrupted the page fibers.  This showed erasure was
detectable. He also used the microscope to examine alleged alterations.  And oblique
lighting (electrostatic data process) to see if there were signs of indented writing.

      Here's what Dr. Grimsbo actually said and the context in which he said it:

Grimsbo Testimony (Transcript, p. 89)3

By Mr. Mackesson:

3

Q. All right.  Now, on the entries that you examined, let's take the 1:00 o'clock entry first.
Were you able to determine, do you have an opinion as to whether or not there was any
alteration, obliteration, or prior writing on the 1:00 o'clock entry?

A. I found no indication that there was. And my opinion would be that there wasn't
any obliteration or writing.

Q. And the same question with respect to the 5:00 o'clock entry.

A. I would answer it the same way.

Q. And the same question with respect to the 4:00 o'clock entry.

A. I would answer it the same way.

Q. In your examination of that page of Exhibit 1 on those three entries, is there any
evidence at all of any alteration or obliteration or prior writing on any of those three
entries?

A. I didn't see any.

      Does this sound like he "backed off his opinion quite off substantially"?

      It couldn't be plainer.  He examined the page at 1:00 PM, 4:00 PM, and 5:00 PM. He
found no sign of prior writing or erasure. No microscopic trace of graphite.  No
indentation. No disrupted fiber. Nothing but the absence of alteration, obliteration or
prior writing.

      Which, in contrast to your account, is exactly what state expert Hurley found.

      Ms. Barnett referred to a conference call and asked (p.109) "In fact, in this
conversation on the, in the conference call, didn't you say that you didn't observe
anything? You didn't detect anything, and you didn't believe it had happened unless
somebody had, quote, "erased very carefully"?

Grimsbo: "That's correct."

      You didn't tell the court about the redirect, in which Dr. Grimsbo was allowed
to explain what he meant by "erased very carefully." I'll quote the whole of it so you see the
context:

(Transcript, p. 109)

By Mr. Mackesson:

4

Q. Well, Dr. Grimsbo, in fact there are other stray marks on that particular page for
December 15, 16, and 17; are there not?

A. That's correct.

Q. And, in fact, there was an erasure at the 2:00 o'clock entry; isn' there (sic)?

A. Macroscopically there appears to be an erasure at that point, yes.  One has to
remember, when we're dealing with pencil, that if we put a page over the pencil and write
on that, that is going to transfer through like carbon paper.  So because we see something
there, doesn't necessarily mean it was there prior to or at any other time.  It can be simply
a transfer area, so there are a lot of other marks on the page dealing with pencil.  We have
graphite and carbon substances that float around.

Q. Now, you've examined other pages other than the one I just referred to, the December
15, 16, and 17?

A Yes, I did.

Q. And does the pencil handwriting appear to be consistent in terms of the amount of
pressure applied in the various other entries?

A. I couldn't say.  I don't recall.  I looked at the other marked page.

Q. Well, let's just take the one page that we have, and take a look at the various other
entries on that page.

A. It doesn't look inconsistent pressure wise. I mean, the amount of pressure and the
amount of lead or the depth of the writing, if one would call it that, the darkness of the
pencil marks on there, it doesn't look like someone very gingerly placed a letter down as
opposed to just writing it.

Q. When you're saying that it would be possible to erase without leaving a mark, what
assumptions would you have to make in order to cause that to come about?

A. Well, in the first place, "without leaving a mark" implies both a transfer of lead to the
paper and the indentation and whatnot.  And to erase it, one would have to write lightly in
the first place, so it would have to be preconceived to knowing that they may erase this.

So they would write it lightly, and then they would have to, using a fine edge or a fine
eraser, go along the mark itself and doing it very, very lightly so it didn't disrupt the paper.

Q. Something other than the eraser that you would find at the top of a #2 pencil?

5

A. “ When I erased with mine, I did it fairly lightly, and it was obvious that there was an
eraser mark there. So I suppose if you sharpen the edge of the eraser on a #2 pencil, you
could edge it out, but again --

Q. If you speculate on that, you’re really talking about somebody intentionally making a
mark on the paper so light it would be very faint and then intentionally going back over
the exact course of the lead in order to remove that mark without making or leaving some
trace of it on the page?

Barnett: Objection, Your Honor.  That goes beyond the expert’s ability to answer.  That is
speculation.

The Court: Go ahead and answer it if you can.

Witness: In my opinion, if I was going to write something that I wanted to be able to
obliterate totally, I would do it lightly.  If I was using a different leaded pencil -- they
come in different numbers -- one with a very hard lead, I would have to press harder to get
a darker image. The lighter the lead -- the #2 flows very easily, and so you get a dark
image without a lot of pressure on it. So what we end up doing -- it just depends on the
writing implement and basically your intent, how much care you want to take in
obliterating that object.

By Mr. Mackesson: (Continuing)

Q. Would you please take another look at the 4:00 PM entry?  Are there any stray or
inconsistent pencil marks on the 4:00 o’clock entry?

A. Two, maybe three.  Depending on where you want to dot the "I " in Mills.  There are
two little dots in the area of the "M."

Q. Is there any indication or any evidence at all that the name Betty Baggs was written in
originally on the 4:00 o’clock entry on December 16, 1983?

A. Not that I could see.

So Barnett asked Dr. Grimsbo if it wasn't possible there could have been an
undetectable erasure there: (Transcript. 115)

Ms. Barnett: "Now, the truth is, Mr. Grimsbo -- the truth is that you didn't detect any
erasure, but that doesn't mean that there wasn't one there?"

Dr. Grimsbo: "If we're looking at it from the fact of 100% certainty, I cannot say that
someone would not have erased that.  As an example, I could go to Mervin's to buy a
sheet, and the sheet is pressed, folded, and in a plastic bag.  I buy the sheet in good faith
that it hasn't been on another bed.  I don't believe it to have been on another bed, but I
can't say with 100% certainty that it has never been on another bed.

6

The same way here.  I can't find any indication that there was writing in those areas.  My
opinion is, based on that, that had not been written and obliterated.  I can't say 100% that
it couldn't have happened, because things do happen.  There is always the possibility."

Barnett: This is not the same as Mervin’s at all, is it? In fact, your statement was on the
telephone conference, "I couldn’t see anything, but it might have happened if someone
erased very softly, very carefully?"

Grimsbo: That’s what I’m saying.

      There are no absolutes in science.  Barnett asked if it was possible undetectable
erasures could exist.  Dr. Grimsbo explained, by analogy, anything was possible, but in
this case, the probability was negligible. However Judge Huckleberry (and, apparently,
you) turned his statement on its head to mean there was an acceptable probability an
undetectable erasure existed.

      Our language is replete with abstract ways to compare things; to say "big" and "little"
and "more than" and "less than."  Analogies like: "He's got the chance of a grasshopper
tossed in a bass pond," "When pigs fly," or "A snowball’s chance in hell" . . . usually get
the idea across without numerical elucidation.  They mean virtually no possibility;
infinitesimally small likelihood.  Zip.

      It takes a shifty agenda to interpret “When Mervin’s sells used sheets for new” any
other way.

      State expert, Lt. Hurley, used a stereo microscope, standard microscope, filters,
different types of high contrast film, different printing papers, an ultraviolet high intensity
Luma light, a long wave and a short wave ultraviolet light, and electrostatic data process.
He couldn't find any sign of prior writing or erasure at 1:00 PM, 4:00 PM, or 5:00 PM.

     Yet you, Judge Huckleberry and Ms. Barnett gave a brazenly false version of Lt.
Hurley's testimony.  Your depiction is a deceptive, across-the-board reversal, the opposite,
of what he actually said:

Memorandum

"Lt. Michael Hurley . . . testified that given the nature of the paper upon which these
appointments were noted, he is unable to form an opinion one way or another whether an
erasure had occurred."

      Your version (p. 5)

"Finally, the state’s expert testified that he was unable to form an opinion whether the
paper had been erased because the type of paper used in the log permitted erasures
without disrupting the paper fibers."

7

      You gave your discussion of his testimony pretty short shrift, considering the weight
you attribute to it.

      Please read it.  In the direct, you’ll see a guy do his damndest to slide around the truth
while the prosecutor slaps on the grease.  Pinned down in the cross, he finally has to admit
he saw no evidence of prior writing, obliteration or alteration at 1, 4, or 5:00 PM.  Which
is exactly what Grimsbo stated.

Here’s Hurley in direct:

Transcript p. 143.

Barnett:

Q. Now, as to the time in the area where one cannot see visually the erasure to bring
anything up?

A. Yes.

Q. And were you able in the area where one cannot see the erasure to bring anything up?

A. No I wasn’t.

Q. Now, as to the time on December 16, the 1:00 o’clock, the 4:00 o’clock and the 5:00
o’clock time, did you get similar results there with the techniques you used?

A. Yes.

Q. So you were unable to determine if something had been altered in those areas?

A. I couldn’t demonstrate that, no.

Q. In your opinion, what, in your opinion , You got to hear Ray Grimsbo’s opinion.  Do
you think his conclusion is correct?

Mr. Mackesson: Objection.

The Court: Sustained.

Ms. Barnett; I’m sorry.  That’s ...

The Court: The form of the question is improper.

Ms. Barnett: Let me rephrase that.

8

Q. What is your opinion as to those three times in terms of them being altered or raised?

A. Three times being?

Q. The 1:00 o’clock, 4:00 o’clock, 5:00 o’clock on December 16th.

A. The 1: 00 o’clock has some extra lines in it, which suggests to me that there may have
been something else with that signature.  The 3:00 o’clock - No.  Excuse me.  4:00
o’clock, I can’t say one way or the other.  And I guess that’s, I guess that’s what I’m
saying about the 5:00 o’clock as well.

The fact that the 5:00 o’clock position on this date is blank, in my opinion, does not mean
that there was nothing there, because, in my opinion, I think this paper, I think an
individual could possibly have written something and erased it and it wouldn’t be
detected.  That is a possibility that can’t be discounted."

And here’s Hurley without wiggle room:

Transcript of Lt. Hurley’s cross examination testimony (p.150) By Mr. Mackesson.7

Q. Did you subject the entries for 1:00, 4:00, and 5:00 PM on December 16 to those three
tests?

A Yes.

Q. With respect to the 1:00 o'clock entry, was there any evidence of a prior writing or
obliteration or alteration?

A. I couldn't detect any.

Q. With respect to the 4:00 o'clock entry, was there any evidence at all of any prior writing or
alteration or obliteration?

A. None that were detected.

Q. Same question with respect to the 5:00 PM entry.

A. No, sir, none were detected.

Mr. Mackesson then asked if he used the electrostatic data test on the three entries in
question on December 16:

A. It would be the entire page, sir.

Q. Was there any evidence of obliteration, alteration or prior writing by use of that test at
the 1:00 o'clock entry?

9

A. No.

Q. Same question with respect to the 4:00 o'clock entry.

A. No.

Q. And the same question with respect to the 5:00 o'clock entry.

A. No.

Q. Did you do any other tests other than the ones I've covered in the cross-examination?

A. The different, I guess pure photographic techniques that would be using high
contrast film and various types of filters, different red filters and green filters and
paperwork and development techniques, but other than that, no.

Q. The ones you -- the tests you just described, did you use those in examining the 1:00,
4:00, and 5:00 P.M. entries on December 16?

A. Yes.

Q. And did any of those tests disclose any alteration, obliteration or prior writing in any
of those three entries?

A. No.

Q. And did any of those tests disclose any alteration or prior writing in any of those three
entries?

A. No.

      Under cross examination, without Barnett’s guidance, Lt. Hurley clearly did not
testify, that, as you wrote, "...that he was unable to form an opinion whether the paper
had been erased..."

      The polar opposite.

      You didn’t disclose Hurley's unqualified "No" when asked if he could find any signs
of "alteration, obliteration, or prior writing" in any of the time slots he examined."

      The transcript shows both experts' testimony was unequivocal.  They said they didn't
see any signs of alteration at 1, 4, or 5 PM (the time allegedly erased): "I didn't see any"
... "none that were detected"... "No."

10

      "No" isn't up for interpretation.  There's no part of "NO" to misunderstand.  You, Judge
Huckleberry and Ms. Barnett falsified the experts' opinions.  You defrauded the court out
of the truth.

      You echoed Judge Huckleberry's fiction in your 11/27/92 brief:

      "Petitioner's expert conceded that the appointment log could have been altered if it
were done very carefully, and the state's expert agreed. Far from being "uncontroverted."
as petitioner argues, the evidence was both controverted and supported the post-
conviction court's finding. If the log were altered, then the factual predicate for
petitioner's post-conviction claim fails."

      To repeat: By implication, the verifiably unaltered log shows the factual predicate for
the post-conviction claim was justified, and Barnett's claim and Judge Huckleberry's
decision weren't justified.

      The primary evidence is a 1"x 2" time slot for 5:00 PM on a 12/16/83 page in an Ideal
appointment book.8  Prosecutors claimed I had Mary Dobson erase, from this page, the
name "Betty Baggs" written at 5:00 PM, and rewrite it at 1:00 PM.  They copied the
original during the 9/86 Hutton vs. McIver trial.  D.A. Stapleton, Asst. D.A. Hammersly,
and, later, Asst. D.A. Barnett, saw the original.  Which means they could only have seen
signs it had not been tampered with.  In Oregon vs. McIver they displayed a copy,9
though it couldn't conceivably show signs of tampering not on the original page.

      Because it's physically impossible to see, in the 5:00 PM time slot of the original, any
signs of tampering which, in spite if your claim to the contrary, defense and state experts
in a 1/17/92 post conviction trial10 testified they couldn't detect.  And which independent
scientists at McCrone Associates, Inc., a laboratory specializing in ultramicroanalysis,
microscopy, and solid state chemistry, cannot detect with state of the art techniques.  They
concluded: "...we could find no evidence whatsoever that a name had been written in the
5:00 PM slot and subsequently erased or otherwise altered.  Because of the physical
characteristics of the paper, had an alteration taken place, it would have been quite
apparent."11  I include their report and photomicrographs of the page.

      The hackneyed "Evidence of absence isn't absence of evidence" is pointedly true in
this case.  The evidence is no alteration.  The absence is readily confirmed and verifiably
certain.12  It's tangible, rock solid, proof clearly visible to the naked eye.  The slot's just a
three-dimensional slice of untouched compressed paper fibers with no indentation,
smudge, smirch, or even ultramicroscopic trace, of graphite.13

      Incidentally, I didn’t testify, as you wrote, I had Dobson change Baggs’ appointment
time. (p. 9)  Although it’s easy for someone bent on saying I had Baggs’ name changed to
see it that way.  You put in considerable time and effort to distort and slant the record to
score a win.

11

      I ask you now to do me the courtesy of reading the relevant parts of the transcript
along with my comments which explain my actual testimony. (Page 24 through page 35
of the Affidavit).

      But no matter if I’d sworn from the rooftops I actually had Dobson erase and rewrite
Baggs’ name, as you, two judges, four prosecutors and two other lawyers claim, physical
evidence proves it wasn’t erased or rewritten.  I went to her house after Huegli filed his
first malpractice case against me.  Four months before he discovered his client also had
sex with Jesus three times while He was on the cross and he solicited Baggs to file.

      Fleeting comment on a couple of your statements on page 6 of the brief: "At the time
of the post-conviction trial Mrs. Dobson had died.  Her husband testified, however, that
on September 16 or 17, shortly after the patient’s suit had been filed, petitioner visited
their home "in regard to a patient appointment log and some other records."  Earl Dobson
lied.  Understandably.

      During the criminal trial psychiatrist George Kjaer, M.D., testified he thought she had
brain damage.  We called her a liar.  It also came out that she couldn’t account for
thousands of dollars taken from the office.  When Barnett gave him a chance to try and
clear her name her husband took it.14  (Of little consequence, but it’s discussed on page
24 of the affidavit.  By the way, I briefly discuss you on page 63.)

      You wrote: (p. 6) "One of Mrs. Dobson’s co-workers testified that in mid-September,
Mrs. Dobson told her that petitioner asked her to change the appointment."  This gal,
Sharon Gribble, had bilked her insurance company out of thousands of dollars by falsely
( and unknown to me until the trial) listing her son and husband as my patients and
pocketing the insurance money.  She also stole patient’s files and billing records from the
office for lawyer Huegli, DA Stapleton, Asst, DA Hammersly, and AG investigator
Jeanine McGloughlin (your old office), and gave them names and billing records of all
my patients, who they proceeded to contact.  In return, they gave her immunity from
charges of theft and, presumably, perjury.  (Discussed on page 22 of the Affidavit.)

      I invite you to do the right thing now and arrange for me to present my case to the
appellate justices, or some honest legal forum.  I can’t afford a lawyer.  It won’t take long.
I’ll show them transcripts of the experts’ testimony, the McCrone report
(with photomicrographs of the pristine area of the phantom erasure), and the actual page.
I realize another state prosecutor will tell them up is down, they don’t see what they see,
and experts mean the opposite of what they say.  But I’ll take my chances.

      The enclosed Affidavit is the skeleton of a book.  It best fits the RICO format.  Every
charge backed by documents and testimonial evidence.  The lack of alteration is supported
by the Grimsbo and Hurley testimony, the McCrone report with photomicrographs, and
the appointment book itself (the prime witness in this case).  It would be presumptuous of
me to expect you to read it all.  But, in addition to pages I’ve suggested, you might find it
interesting to glance at the introduction.

      You were attacked because you spoke honestly about your sexuality.  You got a
chance to prove yourself and came through admirably.  I was attacked for speaking up
about the excesses of the child abuse industry and dishonest prosecutors.  As a result, I
was convicted for a crime that never happened.

I’d appreciate it if you’d give me a chance prove it.

Sincerely,

Enclosed:

Transcripts of testimony by Dr. Grimsbo and Lt. Hurley.

Your Brief to the Appellate court.

Affidavit

A report with photomicrographs issued by McCrone Associates.

  1   McIver v. State of Oregon, Trial Court # 904733, Appellate Court # A 73725.  [Back]
  2 Note: Prosecutors who promulgated tampering charges resolutely ignored the physical reality of paper, writing, and erasing. Paper is a three-dimensional mat of interlaced fibers compressed to form a solid surface. It has density, texture, and thickness. Pencil lead is a honeycomb of layered graphite sheets bonded in gum. An eraser is mostly rubber and pumice, hardened with zinc oxide and sulphur, held together with burnt vegetable oil, rough buffed and compressed. Writing disrupts. It drives graphite into, under, and between fibers. It indents. Erasing tears. It pulls, pushes, and rips out graphite particles lodged in the mat. It slashes, shears, twists, and bends fibers. The more thorough an erasure the greater the destruction. It can't be undone. There's no such thing as an immaculate extirpation.
  3 Emphasis added  [Back]
  4 Hurley testimony; McIver vs. Oregon, Lincoln Co. # 904733;
  5 Knowing the 5:00 PM time for 12/16/83 hadn't been altered, prosecutor Barnett asked Lt. Hurley to see if he could find Baggs' name erased anywhere in the book. He found it had been erased from the 6:00PM time for 6/28/83 and was clearly written at 1:00 PM. But the name replacing it at 6:00 PM ("Dr. K.") wasn't Dobson's writing, it was mine. Letter from Lt. Hurley to Steve Tolliver, DA’s office.
  6 Barnett apparently wrote the opinion; Judge Huckleberry, the conclusion.
  7 Emphasis added.  [Back]
  8 This report, along with photomicrographs, is enclosed.  [Back]
  9 I didn’t have the appointment book at trial. I’d long suspected someone was stealing documents from my office. Suspicions confirmed when lawyer Huegli displayed several in court, and an ex-secretary testified she turned them over to him as well as the DA’s office. I showed the book to Des Connal, who confirmed the time was unaltered. He didn’t want to be in the evidence chain, so gave it back to me. I hid it along with a number of files and couldn’t find it for the trial. That simple.  [Back]
10 McIver vs. Oregon, Lincoln Co. # 904733.  [Back]
11 McCrone Associates, Inc., Affidavit and report - [E 157-180].  [Back]
12 "... capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy." [Uniform Rules of Evidence 9 (2) (d)].  [Back]
13 Which is a serendipitous gas! Appointment books are held together by erasures. People cancel, change, forget. Prosecutors were so hot to knock me off the witness chair they didn’t bother to see if their frame could appear to jibe with reality. Or, surely, they would have come up with some slot that was erased.  [Back]
14 Incidentally, this was the first time Earl came up with this. Even though the question about when I went to their home had been raised as early as 1986, six years before. He didn’t claim this until after prosecutor Barnett contacted him.  [Back]
15 The evidence is in a 200 page book with mostly four reduced document copies to a page. You’re welcome to a copy. If you think you might refer to it I’ll be happy to mail it straightaway.

7/31/10: Your lawyer responded to this letter to inform me (that in perverting the truth) you practiced “advocacy.”

What you practiced was deceit.

 

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