Doubting Thomas

It's a case that recently attracted attention from the ABC newsmagazine show 20/20, and it's easy to see why: 90 years is a long time for any teenager to be facing.

And, when it comes to heinous crime, a 16-year-old looking at 12-year-olds isn't at the top of the list. A 16-year-old is practically a kid himself. Especially a sheltered 16-year-old like Matt, who went to Valley Christian Academy, acted in school plays, and liked going to Disneyland.

All that's beside the point, though, because Matt insisted he was innocent. Yeah, he told the cops, he'd looked at adult porn on the family computer. But child porn — no way.

They all say that, of course. But records show that Matt passed two lie detector tests, one administered by a nationally recognized expert. He also passed a psychosexual evaluation with a local psychiatrist.

Matt, the doctor concluded, was not a pervert and not into little kids.

Ultimately, the case was resolved last November in a bittersweet way. Maricopa County Attorney Andrew Thomas dropped the child porn charges, Matt copped to three other felonies, and the only question left was whether the now 18-year-old should be labeled a sex offender.

But what makes this case so shocking is what the record now shows: Thomas had an appalling lack of evidence. His investigators had never even checked out the most basic facts that would ultimately vindicate Matt.

Thomas' spokesman, Barnett Lottstein, declined comment, but Matt Bandy and his family were happy to talk. Matt, who has enrolled at Scottsdale Community College, skipped his first day of class last week to talk about the case with his parents and New Times. (The family's also put up a Web site, www.justice4matt.com.)

"The idea to go public with this — all along, it was Matt," says Jeanne Bandy.

"I don't want this to happen to anyone else," Matt adds. "And it's going to happen again. Computers are so unsafe — and the prosecution in this state is so harsh — it could easily happen to someone else."

Matt's father, Dr. Gregory Bandy, is an emergency room physician. He has a hard time believing everything that's happened to his family in the last two years.

"They don't have to prove you're guilty — you have to prove yourself innocent," Gregory Bandy says, and the disbelief is clear on his face.

"They've turned the Constitution upside down."

In retrospect, the case against Matt Bandy was always incredibly weak. Still, resolution took a long time.

The plea deal came two years after police showed up at the Bandy's door, and a year after Matt was charged and forced to wear an ankle bracelet, recording his every move.

Blame Thomas' typically hard-nosed approach. When his prosecutors initially offered a deal, says Ed Novak, Matt's attorney, it was contingent on Matt copping to two second-degree felonies, spending a year in Tent City, and registering as a sex offender. The Bandys, convinced of Matt's innocence, said no.

But the long wait also occurred because prosecutors hadn't done their homework, yet seemed intent on keeping the defense from doing it for them.

Novak, a savvy Phoenix attorney with little patience for prosecutorial grandstanding, had gotten a court order requiring Thomas' office to give him a complete copy of the Bandys' hard drive. He'd hired an expert in Tucson to see what was really on there.

The prosecutors appealed the order, but the appeals court refused to grant them a stay and then refused to hear the case.

So Thomas went on to the Arizona Supreme Court. Again, the court refused to give him a stay. And again, the court dismissed the argument without a hearing.

But all that took time and energy. It took Novak two months — and two court orders — to get the data turned over. (The prosecutors had a right to appeal, but without a court-ordered "stay," the defense was supposed to get the material in the meantime.)

And so while Matt was saddled with an ankle bracelet, and while his parents shelled out thousands of dollars and worried about keeping him out of jail, Novak waited for a copy of the hard drive.

Only after the defense had the hard-drive information did the evidence against Matt Bandy become a bit more clear.

"The hard drive was infected with hundreds of viruses and spyware and backdoor Trojans," says Tami Loehrs, the expert Novak hired. She works with a firm called Law 2000 and consults on many porn cases. "With a backdoor Trojan, anyone can actually get into your computer."

Including someone who was dealing in child porn — someone who'd have particularly good reason not to save the contraband to their own hard drive.

"They're doing it so they don't get caught with it," Loehrs explains. "If I'm on your computer thanks to a backdoor Trojan, I know everything you do. I can get your user name, your password, everything. And I can make it look like you're the one posting pictures."

As it turns out, the sum total of the prosecution's evidence against Matt Bandy was that someone with access to his family's computer had posted child porn on a Yahoo! chat room.

That might have been anyone with a bit of computer savvy, as Loehrs determined. Thanks to the Trojans, a person didn't have to be in the Bandy home to be accessing the family's hard drive.

The prosecutor's computer "expert," Detective Larry Core of the county attorney's office, had never even bothered to check out the possibility of a virtual intruder.

"Did you find any viruses, evidence of any virus?" Novak asked, according to the transcripts.

"I didn't look," Core replied.

"Did you look for any evidence of hacking?" Novak asked.

"Nope," Core replied.

"Did you look for any evidence of back-door entries into the computer?"

"Nope," said Core.

Los Angeles-based computer expert Jeff Fischbach first started consulting on porn cases 11 years ago. He immediately assumed, he admits, that if someone was charged with possession of child porn, they were guilty.

But since that time, Fischbach has learned to make no assumptions. Viruses that allow remote access are on practically every hard drive, he says, yet few prosecutors bother to look for them and weigh their presence before throwing the book at a defendant. (Really, the only way most people can guarantee safety is to have a full-time IT expert, like most big companies. Long before the police showed up at their door, after all, the Bandys had asked their salesman at Best Buy how to make the computer safe, and followed his recommendations. Clearly, that was not enough.)

But despite what any outside party would likely consider reasonable doubt, good criminal lawyers have learned that they have little chance of winning over a jury, even with a virus-riddled hard drive.

Their only hope is to convince a prosecutor to be reasonable — to look for evidence of someone with a child porn problem, not just someone with a few random images on a pregnable hard drive.

"The minute you get these images before the jury, their ability to think about anything else is gone," says Fischbach, who has consulted on numerous cases. (He was not involved with either side on the Bandy case.) "At that point, somebody's responsible. Somebody's got to pay. The problem is, in that process, lives get ruined."

That very nearly was Matt Bandy.

He spent months wearing an ankle bracelet. He dropped out of high school because of the stress of trying to hide it from his classmates — and the stress of facing life in prison. His parents, who believed in his innocence from the beginning and never wavered, spent $250,000 on attorneys and experts.

Mindful of the fact that a jury trial could easily net 90 years in prison, Matt agreed in October to plead to lesser felonies: three counts of showing a Playboy around at school, when he was 16.

And he agreed to be registered as a sex offender — despite the fact thatthe report from the county's probation department decreed that Matt "doesnot fit the criteria for sex offender status" and recommended against it.

"I had to be in by 9 p.m.," says Matt. A tall, gawky kid who'd like to be the next Steven Spielberg, his quiet manner masks a dry wit.

"I couldn't have anything depicting a woman in a sexual manner — basically, I couldn't even have a Sports Illustrated with a cheerleader in it. I couldn't be around children. If I wanted to date anyone, I had to inform her on the first date what I'd done and take her to meet my probation officer."