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America, land of the
free...ha, ha, ha!

By Dave Duffy

Dave Duffy

Issue #104 • March/April, 200

Here are two stories that should scare you. They are about what happens in America when we have stupid laws, overzealous prosecutors who want their conviction rates up, and too many prisons that need to be filled.

The first is about Matt Bandy, a 16-year-old kid who barely escaped doing 90 years in prison for allegedly uploading child pornography to the internet. He was innocent but that didn't stop an Arizona prosecutor from pursuing him for two years at a cost of a quarter million dollars to the boy's family. Maybe you saw Bandy's story on ABC's 20/20 program on TV January 12.

The second is about Bradford Metcalf, a middle aged man who is doing 40 years in federal prison for allegedly possessing machine guns and conspiracy to commit terrorism. He was innocent too, as far as I can see, but he

didn't have any money to hire a lawyer so is now in his 8th year of prison. You probably haven't heard much about him. Programs like 20/20 don't do many shows on middle aged militia members charged with crimes involving firearms. He'll be eligible for release when he's 87.

Both of these stories are educational for anyone who still believes America is the land of the free. They illustrate just how far America has gone down the road from those innocent-looking random road stops to catch drunk drivers to full-scale invasions of ordinary people's homes to catch suspected pedophiles and terrorists. Your home may be next. Better pay attention so you can try to figure out what you might be doing "wrong."

Matt Bandy, the boy next door

Yahoo, which monitors internet chat rooms for suspicious content, reported to authorities that child porn had been uploaded from a computer at the Bandy's Phoenix, Arizona home. That was enough for Phoenix Police to get a search warrant. Ten officers raided the home at 6 a.m. December 16, 2004, while it was still dark. Matt was getting ready for school; the police woke his father, an emergency room doctor, at gunpoint. The cops grabbed the family computer and later arrested Matt. He was scared out of his mind, as only a 16-year-old kid who has never done anything out of the ordinary can be. He told police he had only looked at some Playboy type photos online.

It took until November 9, 2005 for prosecutor Dan Strange and his boss, Maricopa County Attorney Andrew Thomas, to charge Matt with nine counts of possession of child pornography images. These are Class 2 felonies, just one level below murder, and Matt Bandy faced the possibility of 10 years in prison for each count, served consecutively, with a judge having no discretion in sentencing. He was looking at the rest of his life behind bars, doing hard time as a sex offender.

He entered a not-guilty plea, but was required to wear an electronic monitoring band around his ankle from that point on because he had been charged with a "sex" crime. Shortly afterwards, the prosecutor offered a plea bargain: 5-15 years in prison, registration as a sex offender, sexual probation for life.

The Bandy family was reeling by this time. Matt was so traumatized that he told his mom he didn't think he could go on with his life. The family hired Ed Novak, a top notch attorney from a big Phoenix law firm. Novak brought in the top guns, like Jonathan Bernstein, a nationally known crisis manager and public relations expert, to garner media attention. Bernstein, in turn, hired Oliver Del Signore, who created and now manages the BHM website, to create a website called www.justiceformatt.com, and eventually got ABC's 20/20 program to feature Matt's story.

Matt's parents were deeply concerned about the publicity. They feared they might get "negative" publicity because of the nature of the charges, and they feared they might anger the prosecutor and judge, thereby jeopardizing their chances of getting a reasonable plea bargain offer.

Attorney Novak estimated Matt's chances of winning were about 20 percent because police had Matt's computer, which did contain images of child porn, and Arizona's child pornography laws are among the harshest in the country. The prosecution was determined to get a conviction. Their reputation as defenders of children from pornography and pedophiles was at stake.

Novak hired two polygraph examiners who confirmed Matt was telling the truth, then he ordered two psychiatric evaluations which concluded that Matt had no perverted tendencies. He then requested a mirror image of the computer's hard drive be given over to the defense so a forensic examination could be done. The Maricopa County Attorney's office initially refused, but eventually relented, and Novak hired computer forensic expert Tammi Loehrs to analyze its contents. She found more than 200 viruses on the hard drive, some of which would allow a hacker to take control of the computer through the internet and upload pornography. It was obvious to her that this is what had happened. It is an everyday danger for internet-connected computers that are not properly protected with virus software and firewalls.

Prosecutors faced mounting defense evidence. Finally, they said they would drop all the child pornography charges if Matt would admit to something. The "something" was "furnishing harmful or obscene material to minors." Matt was willing to admit he had taken a Playboy magazine to school and had shown it to three friends. The family, which by now had spent a quarter of a million dollars for their son's defense, was fearful of a trial before a jury that would be shown the pornographic images taken from Matt's computer. Would they convict out of ignorance, or because they couldn't understand the forensic evidence that would allow a hacker to turn Matt's computer into a "zombie" and remotely upload porn images to the internet? The family agreed to the plea bargain. They wanted the nightmare over and their son spared prison time.

Matt's plea agreement, which carried no prison time but branded him a sex offender who must register as such for the rest of his life, cannot be overturned according to Arizona law. And the governor of Arizona has no pardon power. The judge couldn't believe the prosecution was insisting on sex offender status and invited Matt to appeal. ABC's 20/20 was there when Matt's two-year nightmare finally ended. The judge, ironically, sent an e-mail on the computer, stating Matt would not be labeled a sex offender. The conviction, however, will stay on his record.

Bradford Metcalf, militia member

Bradford Metcalf was not so lucky. His nightmare is still going on nearly a decade after he was accused by a Michigan prosecutor of conspiracy to commit terrorism and possessing machine guns. He is now in his eighth year of a 40-year prison term without the possibility of parole. We've run letters from him last issue and in this one (page 85), and I invite you to read his detailed essay, A Malicious Prosecution, at the end of the Letters page for Issue #103 at BHM's website, www.backwoodshome.com. The essay would fill five pages of this magazine, but here's my brief summary:

Metcalf was a member of one of the many small militia groups that started up back in the 1990s in response to government raids at Ruby Ridge, Idaho (August, 1992) and Waco, Texas (April 19, 1993). After the Timothy McVeigh bombing of the Murrah Building in Oklahoma City (April 19, 1995), President Clinton's Attorney General, Janet Reno, decided to get tough on militias. Several groups were infiltrated, raided, and their members imprisoned. Metcalf's story is one of them.

In August, 1997, about 70 agents from the BATF, FBI, and Michigan State Police raided Metcalf's home, along with the homes of two other militia members, Ken Carter and Randy Graham. Metcalf was a firearms hobbyist, having been a federally licensed firearms dealer for 6 years, a competitive shooter, and reloader. He owned 28 guns, all legally configured. Militia members had been meeting at his home, shooting at his range (he had 40 acres), and talking about how government was out of control.

Seven months later, in March, 1998, all three were arrested. The prosecutor, Lloyd K. Meyer, subsequently offered Metcalf a 3-years-in-prison plea bargain. He refused. Meyer offered Graham the 3-year plea bargain if he'd testify against Metcalf, but he refused. He offered Carter, who suffered from emphysema, a 5-year plea bargain, bypass surgery, and a lung transplant, which Carter accepted.

The trial was a one-sided affair. Government testimony was mostly allowed, while Metcalf's attempts to introduce evidence in his own defense was mostly denied. The judge, Richard Alan Enslen, repeatedly recommended to Metcalf that he get an attorney. The prosecutor painted Metcalf as a home-grown terrorist and paraded Metcalf's gun collection in front of the jury as evidence, claiming some of them were machine guns. Metcalf's evidence to the contrary was ruled inadmissable. Metcalf was ultimately given a 40-year prison term, 10 for each machine gun. (This was the outcome the Bandy family feared, namely, conviction by an ignorant jury.) The judge added on 10 more for "use of a firearm in a violent crime," even though no violent crime was specified. And the judge added a "terrorist enhancement," which allowed the years to be "stacked" on top of one another. Graham later got 55 years. Carter got his surgeries, did his 5 years, and died 6 months after release.

Metcalf has appealed his case several times without relief, and is now trying to convince noted Second Amendment attorney, Stephen Halbrook, of Fairfax, Virginia, to take his case to the Supreme Court. In January, 2005, Metcalf applied for a Presidential pardon. He asks concerned people to write President Bush on his behalf.

I don't hold out much hope for him. He has no lawyer, no money, and no access to the mass media. Most in the mass media are not interested in taking up the banner of a "gun nut" like Metcalf. I think Metcalf is as doomed as Matt Bandy would have been had his parents not had a quarter of a million dollars to buy justice. No telling who government's next victim will be. Maybe you, maybe me. Got to keep them prisons full to keep all those government bureaucrats employed. America has the highest per capita imprisonment rate in the world.

America has become a sick society with sick government systems in place. Not that many people even care. They're too busy watching television. They don't even want to hear this stuff. America, land of the free...ha, ha, ha!




Read More by Dave Duffy

Read More Opinion / Commentary

 
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