Dr. Frank Kardasz (Ed.D)

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Defense In Child Porn Case Distorts the Truth

Sunday, January 28, 2007

By Rachel Alexander, Deputy County Attorney, Maricopa County

Recent media reports, including a Jan. 23 column by FOXNews.com
columnist Wendy McElroy, and a Jan. 19 broadcast of the ABC news program
20/20, have portrayed the prosecution of an Phoenix, Ariz., teenager in an
Internet child pornography case as an overzealous prosecution by the
Maricopa County Attorney's Office.

The Maricopa County Attorney's office would like to make clear our
contention that these reports grossly misrepresented the facts involved,
and that the characterization of this case in the media is the result of
the juvenile defendant's parents denial of the evidence of their son's
guilt and unfortunate initiation of a media disinformation campaign.

The Bandy’s even hired Bernstein Crisis Management to design a web site
attacking County Attorney Andrew Thomas and further spread
disinformation. The “experts” quoted on the website were not given the specific
facts of Bandy’s situation; they were simply asked broad questions about
viruses hijacking a computer.

This case was not about adult pornography, nor was it about a computer
virus surreptitiously downloading child pornography to your computer--
as the media, family and defense counsel have portrayed it. The
prosecution of then 16-year old Matt Bandy was about an investigation that
yielded overwhelming evidence of the defendant viewing, downloading,
uploading and sharing pornographic images of children being sexually abused,
and burning them to a CD.

Matt Bandy admitted to detectives that he visited pornographic websites
as well as an online group known for sharing pornographic images of
children. A burned CD was found in his home, which contained the same
pornographic images of children found on his computer. The images were
saved in a file named "Lolita," which is a term used by child pornographer
traffickers to refer to underage images.

Bandy’s defense attorney asserted that a “virus” or “trojan” must have
downloaded the child pornography to Bandy’s computer without his
knowledge. Even if this were true, it is the County Attorney's contention
that a virus could not have burned those images to a CD, titled them
“Lolita,” then physically removed the CD from the computer and place it
elsewhere within the family home. The fact that child pornography was found
on the CD at his home cannot be ignored.

The investigation was initiated by the Phoenix Police Department after
Yahoo! reported the transfer of child pornography to the Center for
Missing and Exploited Children, as required by law. Evidence subpoenaed
from Yahoo! revealed that pornographic images of children had been
uploaded from a username “mrbob1980hoopdu” to a Yahoo! online group called
“beth_lard9.”

Beth_lard9 was an online group created for exchanging child
pornography. Bandy admitted to the Phoenix police detectives assigned to the case
that he participated in this online group, and said his username was
“joebean1988hoopdu.” Yahoo! provided information showing that the
username that uploaded the child pornography, “mrbob1980hoopdu,” was
registered as “Ms. Joe Bean”-- a clear link to Bandy.

In addition, both the IP address assigned to the Bandy computer by the
Bandy’s Internet service provider Cox and the MAC address of the Bandy
computer were matched to the newsgroup postings by “mrbob1980hoopdu.”

Ms. McElroy's column reported the defense assertion that the
prosecution refused to perform a forensic analysis of the juvenile’s computer,
and that a forensic analysis found that “nine images were probably
downloaded without his knowledge onto his hard drive by a virus.”

This is not accurate. The prosecution’s forensic examiner, a detective
with over 400 hours of training in computer forensics who is certified
by the International Association of Computer Investigative Specialists,
the leading organization in this area, performed a lengthy analysis of
Bandy’s computer. The results of this examination were detailed in a
report over 100 pages long. This detective found 72 images of child
pornography on the computer, stored in folders created on his computer
entitled “…kidlolitagood ones.

The Bandy family hired their own forensic examiner, whose resume does
not indicate she is certified with IACIS and whose expertise and
training is seriously questioned by the prosecutors. This examiner is
responsible for the claim that a virus probably downloaded the images without
the juvenile’s knowledge.

(Fox News Editor's note: each side in this case disputes the expertise and
qualifications of the forensic examiner used by the other side. )

If this were the case, what would stop anyone accused of downloading
child porn from using that excuse? That excuse has been used with little
success in the past by defendants. Last summer, in U.S. v. O’Keefe, the
11th Circuit Court of Appeals upheld the child pornography conviction
of a defendant who blamed a virus for placing child pornography on his
computer. In that case, the prosecution’s forensic analysis of his
computer indicated there were viruses on his computer, but they were not
capable of downloading child pornography.

If the analysis by the forensic analyst hired by Bandy provided
exculpatory evidence, it should have been presented during the prosecution of
the case. The only report that has been provided to our office was a
seven-page document consisting of some conclusions; there was no report
on scanning for viruses, no mention of the CD that was found or the work
the examiner performed – no mention of any viruses supposedly
responsible for the activities described or the CD.

In fact, our office’s forensic examiner who examined the computer
acknowledged after the case blew up in the media that there were child porn
images present on the computer nine months before the viruses infected
the computer, so the viruses could not have been solely responsible.

It is a prosecutor’s responsibility to try cases where there is a
reasonable likelihood of conviction. Bandy’s defense attorney has publicly
acknowledged that there was an “80 percent” chance of conviction if the
case went to trial.

The plea agreement reached in this case has been misrepresented as an
indication that we did not have a strong case. This too is not accurate.

Arizona has one of the toughest child pornography laws in the nation,
requiring a minimum sentence of 10 years in prison for each image of
child pornography, and multiple counts must be served consecutively. By
these laws, Bandy could have faced 90 years in prison.

Our office never intended to ask for a sentence of 90 years in prison,
as has been so greatly exaggerated, and the plea reflects our office
efforts to avoid giving the juvenile 90 years in prison. Our office has a
duty to examine each case on its own merits and reach a result which is
just. In light of the circumstances surrounding this case -- such as
the age of the juvenile and his lack of prior criminal conduct -- we felt
90 years was disproportionately harsh and offered a plea bargain
allowing Bandy to plead guilty to the lesser charge of distributing
pornography to minors. Bandy accepted this agreement.

The victim in this case is not Matt Bandy. The victims are the children
who are exploited and made virtual sex slaves. Some of the children in
the images found on his computer and CD were recognized as past victims
of exploitation, and some were under 10 years old.

This case is not about pornography, it is about child pornography.
Child pornography sexualizes children for profit. If you can justify a
crime as horrible as child pornography, you can justify any heinous crime.

Our office did what it thought was right in this situation, and a media
disinformation campaign cannot change the overwhelming evidence of
Bandy’s guilt.

Unfortunately, the court removed the sex offender registration terms
from Bandy’s guilty plea, so he will not receive the treatment he needs
to avoid this happening again. Individuals who become involved in child
pornography have a hard time breaking free from it. We can only hope
that Bandy does.

Rachel Alexander is the deputy county attorney with the Maricopa County
Attorney’s Office, Maricopa County, Arizona.

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