Tuesday, January 16, 2007

Bandy case was actually worse than first reported.

Here are some additional facts regarding the case of Matthew Bandy. These update the information I have posted to date and give you a fuller understanding of exactly what happened. The ABC report, on which my first remarks were based, was not good but left out some information. All the additional information adds to the conclusion that what happened to Matt was a perversion of justice.

The images which police alleged were child porn were supposedly uploaded from the Bandy computer and not downloaded as many people assume. That is the images were put on the computer and then sent out from there. This strengthens the defense claim that the images were placed on the computer by malware so that they could be later distributed in some fashion.

A teenage boy might download porn but it is less likely he would be in business of uploading it to various sites. A police officer with no formal certification in forensic examination of computers sat down at the family computers and started looking through things. He claimed to find the images but never showed the family any of them. And he claimed that he could see activity on regarding the photos on a specific date. Jeanne Bandy, Matt’s mother, said the date in question couldn’t be anyone in the family as they were away from home then. She says he appeared “flustered” by that and then concocted a claim that the dates could have been changed later.

An investigator for the police later said that the images had been uploaded to Yahoo by someone with the user name “mrbob1980hoopdu” which was not the user name of Matt. There was also evidence on the computer that the file had been put on the computer by the same user. Nor could police who was using the computer when the photos were uploaded. So far so good for Matt, or so they thought. Instead they learned he was charged with nine counts of class 2 felonies -- a crime level just below murder!

The judge would have had no discretion in sentencing here. He could not sentence to less than 10 years imprisonment for each image.

Intent on a win at any cost the Maricopa County Attorney’s office offered Matt a plea bargain. He would spend 5 to 15 years in prison and be a registered sex offender for the rest of his life. Meanwhile the defense attorney Ed Novak was trying to get a copy of the hard drive so it could be properly investigated -- something the DA was opposing. Then the DA came back with another offer: one year in prison and register as sex offender for life.

The prosecutors fought every effort to allow the family access to the computer. They ignored court orders to allow it and the family actually had to take the matter to the Arizona Supreme Court. Only after months of trying did the state relent and allow an independent investigation of the computer. That investigation found 200 viruses, that anti-virus software had been disabled, one virus renamed hundreds of files to make activity difficult to trace and that “executable” files started operating at the time the images were being transmitted, which indicates that the order of transmission was being carried out for someone controlling the computer remotely.

Also what was not mentioned in the ABC report is that not only did Matt pass a lie detector test twice but both his parents also voluntarily submitted to the test to show that neither one of them could have been responsible either. All three of them passed this test as well. Now with an independent forensics report to back up the family along with the lie detector results and psychiatric examinations of all three family members things weren’t looking good for the government case.

In desperation the prosecutors offered Matt a deal where he would plead guilty to showing a Playboy magazine to some mates at school.

Jeanne Bandy emailed a consultant on the case the following:

"We were totally ready to take our case to trial. We felt that no jury in the country would convict Matt. From the beginning however, we were told we could not risk going to trial, and jeopardize Matt's life and freedom. As it became apparent over the course of the last year, the prosecution didn't care, and disregarded any evidence we presented to them, i.e. polygraph test, psychological evaluations, computer forensic evidence, and expert testimony. From the time they broke into our home they singled out Matt and was convinced he was guilty regardless of the evidence presented to them, and when we ask why they were doing this they said , "Because we can." They were just out to increase their conviction rate, and if some innocent people (children) got in the way too bad.

"Over the last year our belief and faith in the judicial system has eroded. Fundamental beliefs such as innocent until proven guilty, the police are there to serve and protect, they would never lie to you, everyone has a right to a FAIR trial have become no more than fairy tales to us. It slowly dawned on us, what our lawyer and psychologists were telling us was true, we could not win this one in court."

But the family was concerned. Jurors in Maricopa County were a problem. The jury pool included a lot of elderly people, unemployed people and people with low levels of education. These were people who would not understand computers well or how remote access to the family computer was possible. If the went to trail and lost Matt would go to jail for life and a pardon was not possible. The lie detector results were inadmissible as well. The family felt they couldn’t risk rejecting the plea since the risks were so high. So Matt agreed to the admit guilt in showing the Playboy to his friends. That is what he was to be sentenced for.

But Prosecutor Daniel Strange brought up the dropped charges and tried to convince the judge that the state was offering “a generous plea” because “the defendant would have been facing a hundred years minimum in prison.” (Note that a man arrested on similar charges in Arizona was sentenced to 200 years in prison recently.) Strange wanted the court to put Matt on three years probation and require he register as a sex offender so the state could “monitor this young man’s development and make sure that in the future there are no such pictures, pornography, adult or child, in his possession.”

Now think back to my original post on this case. DA Andrew Thomas said he wanted to teach the boy a lesson for “playing around on pornographic sites”. He wants the boy taught a lesson so he doesn’t do it again. As I wrote then:

Do what again? Look at erotica! This is really what Thomas is saying. There is no indication that Matthew Bandy did anything but look at adult erotica and Thomas is saying that he wanted the boy to learn the lesson to never do that again.

What Thomas is doing is trying to find ways to prosecute people for looking at legal images! He is saying that if you look for legal erotica and unintentionally come across illegal erotica that he will prosecute you so that you learn not to look for legal images!

Now look at what the prosecutor in the case said before the judge. He wanted the boy on probation so the state could come in and monitor him and his computer to make sure he never looked at “pornography, adult or child”. I didn’t realize that in their comments to the judge they admitted that they wanted to prevent Matt, who was 18 at the time of the sentencing and thus a legal adult when it comes to erotica, from looking at legal erotica. They really were targeting all erotica even if it was legal and even if Matt were legally allowed to view it. That is precisely what they said to the judge.

The judge found Strange’s remark strange indeed. Here he was bringing up charges that the state had dropped. The judge said, “the reason why this agreement took place is because you couldn’t prove the things you just alleged now, or else we wouldn’t be here.” Strange denied that saying it was not true. The judge said, “Well, that was my memory.”

What is more astounding is that Strange wanted Matt to register as a sex offender -- something that is very dangerous. Yet the Probation Report submitted to the court in this case specifically said: “An assessment indicates that the defendant does not fit the criteria for sex offender status and therefore it will not be recommended as a condition of probation.” But they also did say he should be forced to “make a donation of $2,500.00 to the National Center for Prosecution of Child Abuse.” In addition he was to pay various fees in order to be monitored and spied upon by the government. He was to be forbidden from consuming any drink that contains alcohol and go to counseling (for what was not specified).

The initial result of this was that the boy was deemed a sex offender. And adviser to the Bandy family Jonathan Bernstein says: “Those terms quickly resulted in Matt being treated very harshly by a probation officer and literally afraid to leave the house for fear he would somehow violate the order, which precluded any contact with children. He couldn’t go to the grocery store, a movie theater or even to church except under certain very stringent and embarrassing conditions (e.g., he was told that his pastor would have to know not merely what he pled guilty to, but what he was indicted for!).”

This is the outrage. They forced Matt into a corner where he accepted a plea bargain and said he showed friends a Playboy. Yet the state was now trying to punish him as if he had been convicted of the very crime they could not prove. Thankfully the court removed that the sex offender requirement bring Matt’s life back to some semblance of normality.

Now there is something important here. Why did Matt finally win something of a victory? There is one reason. His father is a surgeon and had the financial resources to hire the best legal representation and to pay for investigators, polygraph tests, psychological assessments and the multiple appearances in court (remember they went to the Arizona Supreme Court in regards to parts of this case). I would hazard to guess but I suspect they spent well over $100,000 on the defense of Matt.

I am sure that other people trapped between overzealous prosecutors, bad laws, computers that can’t be easily controlled by the average user, and a justice system that automatically throws massive sentences at defendants in such cases, simply can’t afford to mount the kind of defense needed. The prosecutor has access to other people’s money. He spends tax funds and doesn’t care if he spends $100,000 or $300,000 or more. He wants to preserve his reputation and it’s not his money.

Matt’s father, Gregory Bandy says that what was done to his family “could have happened to anyone, and actually will continue to happen at random throughout society until common sense and new laws are both employed and enacted.”

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