Doubting Thomas

Matt Bandy was a 16-year-old kid who'd never committed a violent crime, had absolutely no prior record, and yet was looking at 90 years in prison.

Acting on a tip from Yahoo!, Phoenix police had searched the Bandy family computer in December 2004 and found 10 images of child pornography. Prosecutors, convinced they were Matt's, charged him with ten felonies, each worth a non-negotiable 10 to 24 years in the slammer — served consecutively.

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.


Matt Bandy

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."

Matt's probation officer, his mother says, insisted that if he wanted to accompany his family to church, he needed a signed letter from their priest, saying it was okay.

If a kid sat down next to him in the pew, Matt had to move.

"Have you ever had one of those dreams where nothing was making sense?" asks Jeanne Bandy, shaking her head. "This was literally a nightmare."

It was only Maricopa County Superior Court Judge Arthur T. Anderson who served as a voice of reason. In Matt's sentencing hearing on November 22, Assistant County Prosecutor Daniel Strange argued that the prosecution was being "generous" and stressed the presence of child porn on the Bandys' computer.

"I believe it's appropriate to 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," Strange said.

"Okay," Judge Anderson replied, according to the transcripts.

"And I'll just note for the record," the judge continued, "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, or else we wouldn't be here."

"I'm sorry, Your Honor," Strange said. "That's not true."

"Well, that was my memory," the judge said. ". . . Was my memory wrong, Mr. Novak?" (Novak, of course, agreed that it was not.)

Anderson told the Bandys he wouldn't change the plea agreement — he didn't want either side to walk away, leaving Matt to face, once again, 90 years in prison. But the judge strongly encouraged the family to appeal the sex offender designation to his probation officer, according to the transcripts.

In December, the probation office granted Bandy's request. He's still on probation for another two years, but the more onerous sex offender terms have been stricken.

The county attorney is characteristically unrepentant. He told 20/20 that he still believes Bandy was guilty, according to the transcript of his interview.

"The juvenile was interviewed," Thomas said. "He admitted at least partially, the substance of the crime, which was yes, he used the computer to go on the Internet to access pornographic sites. It turns out . . . he says it was only adult sites. Quite frankly, criminal defendants are not . . . famous for being forthcoming with the facts. So you've got to weigh that . . ."

But outrage has erupted among bloggers and even, apparently, some Arizona legislators. Defense attorney Novak says he's been talking with Republican senator Barbara Leff about getting a change to the law to prevent this type of thing from happening.

He's learned not to count on prosecutorial discretion — or even common sense.

"The treatment of this defendant is typical of the treatment of accused sex offenders in general by Andrew Thomas," Novak says. "He ran on a platform of being tough on sex offenders, and tough on immigration crime.

"He's not worried about what people like you or I think of a case like this. He's worried about the newspapers saying he's let someone off the hook."

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