Overzealous Porn Prosecution Tramples Accused's Rights

Published January 23, 2007

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Matt Bandy is the Arizona teenager who, until recently, faced 90 years in prison for having nine images of child porn on his computer. Matt is also a reminder of why the Bill of Rights championed due process--the procedural rights of a defendant in the legal arena.

Due process was not championed as a protection against false accusations by a victim but as a shield against abusive prosecution by the State. The Founding Fathers knew that people sometimes lie but their focus was to limit the power by government.

Power corrupts. The ability to arrest and imprison another human being is an immense power that is held in bounds by principles based on common sense and common decency. The principles allow an accused to defend himself: for example, the right to confront witnesses.

Why should Matt Bandy's case serve as a reminder of these protections?

For two years, he endured a legal prosecution that cost his family over $250,000; they are now broke, and their nightmare is ending only because the case caught the attention of the media. ABC News program 20/20 covered the story, likely spurring other reporters to take interest.

As C/Net reported, "After being contacted by reporters, the Maricopa County Attorney's Office offered the boy a plea bargain."

The charges were dropped from nine felony counts that carried a life sentence down to three "class 6 undesignated felonies" with no jail time. Class 6 felonies are "non-dangerous, non-repetitive offenses under the criminal code."

To read a transcript of Matt’s sentencing, click here.

The ‘crime’ to which Matt ultimately pleaded guilty was showing a Playboy magazine to some 16-year-old classmates. His conviction may be the first of its kind in America. Being in possession of a Playboy is legal, but a teenaged boy who shows it to a buddy now risks being arrested as a sex offender.

Nevertheless, the plea bargain allowed County Attorney Andrew Thomas to tell ABC News that "this defendant did plead guilty in a court of law."

The extraordinary reduction in Matt’s charges hinged on a forensic analysis of his computer. Exculpatory forensics revealed that the nine images were probably downloaded without his knowledge onto his hard drive by a virus. Viruses with this capability are alarmingly common and can invisibly infect an operating system when someone clicks on an email attachment or the ‘wrong’ (not necessarily adult) website.

Last year, during the height of the Mocbot worm, an estimated 265,000 computers were infected daily.

Matt’s attorney vigorously sought to have forensic analysis performed on the computer, which was in possession of the police. With equal vigor, the District Attorney’s office (called the County Attorney’s office in Arizona) blocked access even though the defense had a legal right to examine evidence.

Court records reveal repeated requests for such disclosure.

Forensic analysis of computer files is akin to ballistic testing of a gun or DNA analysis of semen from a rape sample. If a defendant is guilty, then the forensics will bolster or prove the charges. If the defendant is innocent, then the results are essential to establishing a defense.

In a telephone interview, Matt’s father explained, "I don’t argue that they [the police] didn’t have a right to come with a search warrant but I can’t understand not giving someone a right to defend themselves."

As it was, the defense conducted forensic tests only after a court ruling gave them access. Even then the County Attorney’s office appealed the lower ruling to the Arizona Supreme Court, which refused to hear the case. The lower court’s ruling stood.

(Citing the Bandy case, the CyberCrime Law site advises, "The Department of Justice has released a 137-page "Investigations Involving the Internet and Computer Networks" manual aimed at local (and unsophisticated in fighting cybercrime) law enforcement units…This manual comes after several local law enforcement agencies bungled some high-tech investigations. "

The prosecution’s refusal to conduct forensic analysis is only one indication of overzealous prosecution. Consider two other indications.

First, the execution of the original search warrant, at 6 a.m., on Dec. 16, 2004. Matt’s mother Jeanne Bandy described the scene at the Bandy home on a web site dedicated to the case.

"There were about ten police. They made me and my kids go outside where we huddled together, frightened…My husband, Greg…was asleep upstairs with earplugs in. They pulled Greg (an emergency room physician) out of bed at gunpoint," the web site quotes Mrs. Bandy.

Second, upon being charged, Matt was required to wear an electronic bracelet on his ankle to track him 24 hours a day.

Third, despite disagreement from the probation department, "sex offender terms" were attached to Matt’s ‘Class 6’ probation. The "terms" severely restricted how close he could come to a minor.

In a recent phone interview, Matt stated that one of the first questions his probation officer asked was whether a minor was living in the Bandy household. Because Matt's sister Katie is 15 years old, there was a possibility Matt could not live at home.

When Matt asked about a planned family trip to Disneyland, the officer forbade him to go. Matt was ordered to "not even think about anything Disney," he said. Upon hearing this, Katie boxed up her Disney movies for fear that having them out would hurt her brother; an open search warrant allows authorities to search the house at will.

When Matt requested permission to attend church, he was told that the priest had to provide prior, written approval that reflected his understanding Matt was a sex offender. Matt was also required to sit in a separate pew away from children. He has not attended church since.

The "sex offender terms" were finally lifted by court order. When Prosecutor Daniel Strange reiterated the child pornography charges, the judge admonished, "I’ll just note for the record, as you were negotiating the plea agreement here, the reason why this agreement took place is because you couldn’t prove the things you just alleged now."

Why was the boy pursued so zealously? Jeanne calls it "a witch hunt" fueled by two factors: Thomas campaigned for office on a promise of being tough on sex offenders; and, he needs a high conviction rate in that area.

The real answer, however, may be the one Matt’s attorney reportedly received when he asked the County Attorney’s office, "Why are you doing this?"

According to Jeanne, he answered, "Because we can."

Wendy McElroy is the editor of ifeminists.com and a research fellow for The Independent Institute in Oakland, Calif. She is the author and editor of many books and articles, including the new book, "Liberty for Women: Freedom and Feminism in the 21st Century" (Ivan R. Dee/Independent Institute, 2002). She lives with her husband in Canada.

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