aTypical Joe: a gay New Yorker living in the rural South
Sunday, February 18, 2007
Another prosecutor, another case of a kid victimized by laws intended to protect them
A commenter points to Justice for Matt, the story of a 16 year old accused of “possession of child pornography.” Matthew’s case was featured in a 20/20 segment last month.
Matthew Bandy, who admitted to looking at adult content, was fortunate enough to be able to afford solid legal counsel, computer forensic experts, lie detector and psychological testing that demonstrated he was not guilty of the charges, and a crisis manager, Jonathan Bernstein. (How does a family recoup such expenses?) All of that and still he was advised that with the strict Arizona sex-offender laws and the aggressive prosecution his chances of being found innocent “were probably 20 percent.” Matthew took a deal - he admitted showing a Playboy around at school - that labeled him a sex offender. Fortunately for Matt, a judge, said to be appalled at the prosecution, invited an appeal and ruled in his favor.
Bernstein suggests we read the transcript of Jim Avila’s interview with County Attorney in the case, Andrew Thomas. Some excerpts:
JIM AVILA: So there was a huge amount of evidence that in fact, this kid was not involved in a sex crime. And yet, your office and you yourself continue to believe and put him through two years of hell, because you continue to believe despite lie detector tests, court psychiatrist reports, a report from the computer expert who said it could have come from anywhere…you continue to say…
ANDREW THOMAS: (Overlap) Well…
JIM AVILA: …that he did it.
ANDREW THOMAS: Well, I…again, I…I’m not sure that that’s totally right. But you gotta…
JIM AVILA: (Overlap) Halfway right?
ANDREW THOMAS: …you gotta (Inaudible)…
JIM AVILA: (Overlap) (Inaudible) right here.
ANDREW THOMAS: Well, our…our experts certainly didn’t think…
JIM AVILA: (Overlap) Your experts…
ANDREW THOMAS: (Inaudible) could have gotten it from anywhere.
(Overlapping Comments)
JIM AVILA: Your … your experts…
ANDREW THOMAS: I mean (Laughter) …
JIM AVILA: …your expert was not an expert who…who did any analysis whatsoever…
ANDREW THOMAS: Well…
JIM AVILA: …as to where it came from. All your expert did was say it’s here.
ANDREW THOMAS: Well, right.
Emphasis mine. Read on, but I come away from the exchange with a clear understanding that once accused, you will be charged. And once charged, you either go to trial or take a plea. They see a charge as accusation + evidence (no matter if selectively chosen or circumstantial). Statements to the contrary be damned. Says Thomas, “Quite frankly, criminal defendants are not…famous for being forthcoming with the facts.”
He discusses the plea bargaining process from a prosecutorial perspective:
JIM AVILA: It sounds a bit like you’re trying to have it both ways. Because you’re saying…you…you didn’t charge him with any …you…and at the end of the day, you let him go. But you…you…the final…at the end of the day, he wasn’t charged with any child pornography. None. He was … he …
ANDREW THOMAS: Right.
JIM AVILA: He…
ANDREW THOMAS: Well, but he was charged with solicitation to furnish uh…to furnish…
JIM AVILA: (Overlap) He bought a Playboy magazine …
ANDREW THOMAS: … sexual exploitation…
JIM AVILA: …and took it to school and showed it to other 16 year olds.
ANDREW THOMAS: That’s what he pled to, but …but that’s…that’s a… a little …uh, that requires a little bit of explanation. It is very typical in plea agreements…what you have to do is, if you decided okay, we want to try to resolve this case because the criminal charges were originally brought… we want to try to resolve it and specifically, you bring the charges down.
And what you have to find is an appropriate uh, offense at that level of felony so that you can …can enter into the plea agreement. That’s typically how the…the decision making process is done. So um, although I wasn’t privy to that decision making process, it was a…a line prosecutor who handled tip…I’ve done that. And typically, what you do is you would find in this case, a classics on designated felony where there’s a factual basis so that … I mean, you can’t just pick any…uh, any classic felony.
It has to be something that relates to the crime as alleged so that the defendant can go forward and admit guilt in court. And…and I should note, not to put too fine a point on this, but this defendant did plead guilty in a court of law.
So once in the system it’s assembly-line justice (the “line prosecutor") and to start out they throw everything they can at you to see what sticks; then because they’ve thrown so much at you they have to get a guilty plea that bears some resemblance to their charges. Even if you’re guilty of nothing more than a youthful rite of passage!
Then they reverse-engineer the justification:
ANDREW THOMAS: But the ultimate outcome was what it was. And the defendant accepts that, the state accepts that, and I’m content that the appropriate sanction was imposed to hold him accountable, teach him a lesson, teach him that this isn’t fun and games. If you’re goin’ to start playing around on pornographic sites, and you come across child pornography then, you know, you better accept the consequences of that.
And whatever happened in his case, uh, w- …presumably we’ll never know because, uh, we…we haven’t been able to…to fully get to the bottom of that. But, uh, an important lesson was taught here. But justice was served in that the appropriate outcome wasn’t to send this guy to prison for 50 years. Was to teach him a good, hard lesson so he doesn’t do it again. And that’s what happened.
That’s the thinking!!! That justice is served and a lesson taught when two years of the kid’s life, how much of the family’s money, and what amount of criminal justice resources was spent on criminalizing a kid for looking at porn. Isn’t that a parental role? And if our law enforcement busies itself with this nonsense, what of the real child pronographers? At the very least, it takes away from that fight. All the while generating prosecutorial statistics that politicians can tout as progress.
We must learn from the DNA evidence that is revealing innocent people who have been jailed for years. WE NEED A COMPUTER FORENSICS INNOCENCE PROJECT; a Barry Sheck and Peter Neufeld of the computer forensics world. We need experts who believe in the presumption of innocence and are willing to spend the time it takes to dig through logs, registry entries and hard drives to find exculpatory material when present. Prosecutors who look for - and presume - guilt do selective searches for data supporting guilt; those accused rarely have the resources to pay computer forensics experts to counter that selective evidence. In this case they did and look what happened. Imagine the awful consequences in the many cases without those resources.
