For years, scientists have peered into the brain and sought to identify deception. They have shot infrared beams through liars’ heads, placed them in giant magnetic resonance imaging machines and used scanners to track their eyeballs. Since the Sept. 11 attacks, the United States has plowed money into brain-based lie detection in the hope of producing more fruitful counterterrorism investigations.

The technologies, generally regarded as promising but unproved, have yet to be widely accepted as evidence — except in India, where in recent years judges have begun to admit brain scans. But it was only in June, in a murder case in Pune, in Maharashtra State, that a judge explicitly cited a scan as proof that the suspect’s brain held “experiential knowledge” about the crime that only the killer could possess, sentencing her to life in prison.

Psychologists and neuroscientists in the United States, which has been at the forefront of brain-based lie detection, variously called India’s application of the technology to legal cases “fascinating,” “ridiculous,” “chilling” and “unconscionable.” (While attempts have been made in the United States to introduce findings of similar tests into court cases, these generally have been by defense lawyers trying to show the mental impairment of the accused, not by prosecutors trying to convict.)

“I find this both interesting and disturbing,” Henry T. Greely, a bioethicist at Stanford Law School, said of the Indian verdict. “We keep looking for a magic, technological solution to lie detection. Maybe we’ll have it someday, but we need to demand the highest standards of proof before we ruin people’s lives based on its application.”

Law enforcement officials from several countries, including Israel and Singapore, have shown interest in the brain-scanning technology and have visited government labs that use it in interrogations, Indian officials said.

Methods of eliciting truth have long proved problematic. Truth drugs tend to make suspects babble as much falsehood as truth. Polygraph tests measure anxiety more than deception, and good liars may not feel anxious. In 1998, the United States Supreme Court said there was “simply no consensus that polygraph evidence is reliable.”

This latest Indian attempt at getting past criminals’ defenses begins with an electroencephalogram, or EEG, in which electrodes are placed on the head to measure electrical waves. The suspect sits in silence, eyes shut. An investigator reads aloud details of the crime — as prosecutors see it — and the resulting brain images are processed using software built in Bangalore.

The software tries to detect whether, when the crime’s details are recited, the brain lights up in specific regions — the areas that, according to the technology’s inventors, show measurable changes when experiences are relived, their smells and sounds summoned back to consciousness. The inventors of the technology claim the system can distinguish between people’s memories of events they witnessed and between deeds they committed.

The Brain Electrical Oscillations Signature test, or BEOS, was developed by Champadi Raman Mukundan, a neuroscientist who formerly ran the clinical psychology department of the National Institute of Mental Health and Neuro Sciences in Bangalore. His system builds on methods developed at American universities by other scientists, including Emanuel Donchin, Lawrence A. Farwell and J. Peter Rosenfeld.

Despite the technology’s promise — some believe it could transform investigations as much as DNA evidence has — many experts in psychology and neuroscience were troubled that it was used to win a criminal conviction before being validated by any independent study and reported in a respected scientific journal. Publication of data from testing of the scans would allow other scientists to judge its merits — and the validity of the studies — during peer reviews.

“Technologies which are neither seriously peer-reviewed nor independently replicated are not, in my opinion, credible,” said Dr. Rosenfeld, a psychologist and neuroscientist at Northwestern University and one of the early developers of electroencephalogram-based lie detection. “The fact that an advanced and sophisticated democratic society such as India would actually convict persons based on an unproven technology is even more incredible.”

After passing an 18-page promotional dossier about the BEOS test to a few of his colleagues, Michael S. Gazzaniga, a neuroscientist and director of the SAGE Center for the Study of the Mind at the University of California, Santa Barbara, said: “Well, the experts all agree. This work is shaky at best.”

None of these experts have met the Indian inventors and the investigators using the test. One British forensic psychologist who has met them said he found the presentation highly convincing.

“According to the cases that have been presented to me, BEOS has clearly demonstrated its utility in providing admissible evidence that has been used to assist in the conviction of defendants in court,” Keith Ashcroft, a frequent expert witness in the British courts, said in an e-mail message.

Two states in India, Maharashtra and Gujarat, have been impressed enough to set up labs using BEOS for their prosecutors.

Sunny Joseph, a state forensic investigator in Maharashtra who used to work with Dr. Mukundan as a researcher on BEOS in Bangalore, said the test’s results were highly reliable. He said Dr. Mukundan had done extensive testing, as had the state.

Here in Maharashtra, about 75 crime suspects and witnesses have undergone the test since late 2006. But the technique received its strongest official endorsement, forensic investigators here say, on June 12, when a judge convicted a woman of murder based on evidence that included polygraph and BEOS tests.

The woman, Aditi Sharma, was accused of killing her former fiancé, Udit Bharati. They were living in Pune when Ms. Sharma met another man and eloped with him to Delhi. Later Ms. Sharma returned to Pune and, according to prosecutors, asked Mr. Bharati to meet her at a McDonald’s. She was accused of poisoning him with arsenic-laced food.

Ms. Sharma, 24, agreed to take a BEOS test in Mumbai, the capital of Maharashtra. (Suspects may be tested only with their consent, but forensic investigators say many agree because they assume it will spare them an aggressive police interrogation.)

After placing 32 electrodes on Ms. Sharma’s head, investigators said, they read aloud their version of events, speaking in the first person (“I bought arsenic”; “I met Udit at McDonald’s”), along with neutral statements like “The sky is blue,” which help the software distinguish memories from normal cognition.

For an hour, Ms. Sharma said nothing. But the relevant nooks of her brain where memories are thought to be stored buzzed when the crime was recounted, according to Mr. Joseph, the state investigator. The judge endorsed Mr. Joseph’s assertion that the scans were proof of “experiential knowledge” of having committed the murder, rather than just having heard about it.

In the only other significant judicial statement on BEOS, a judge in 2006 in Gujarat denied the test the status of “concluded proof” but wrote that it corroborated already solid evidence from other sources.

In writing his opinion on the Pune murder case, Judge S. S. Phansalkar-Joshi included a nine-page defense of BEOS.

Ms. Sharma insists that she is innocent.

Even as the debate continues over using scans to trip up obfuscators, researchers are developing new uses for the technology. No Lie MRI, a company in California, promises on its Web site to use the scans to help with developing interpersonal trust and military intelligence, among other tasks. In August, a committee of the National Research Council in Washington predicted that, with greater research, brain scans could eventually aid “the acquisition of intelligence from captured unlawful combatants” and “the screening of terrorism suspects at checkpoints.”

“As we enter more fully into the era of mapping and understanding the brain, society will face an increasing number of important ethical, legal and social issues raised by these new technologies,” Mr. Greely, the Stanford bioethicist, and his colleague Judy Illes wrote last year in the American Journal of Law & Medicine.

If brain scans are widely adopted, they said, “the legal issues alone are enormous, implicating at least the First, Fourth, Fifth, Sixth, Seventh and 14th Amendments to the U.S. Constitution.”

“At the same time,” they continued, “the potential benefits to society of such a technology, if used well, could be at least equally large.”

By Anand Giridharadas
September 15, 2008

http://www.nytimes.com/2008/09/15/world/asia/15brainscan.html?_r=1&oref=slogin

Hat tip: Joanne Cuccia

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Meese, along with John Baker and Congressman Louie Gohmert (R-TX), participated in a Heritage Foundation panel held on June 17 that focused on the growth of federal crime laws and the shifting of the balance of power between state and federal governments.

According to both Baker and Gohmert, the federal government has taken powers away time after time from state governments, thus resulting in too many federal laws dealing with state issues.

As an original member of the American Bar Association’s Task Force on the Federalization of Crime, Baker, like Meese, said he had been involved in federal crime counts and studies before and said the current report was based on information found in previous studies done in the 1980s.

“As of early 1983, the Justice Department put the number at 3,000 crimes and we’ve worked off that figure,” said Baker. [They] did a hand count of 27,000 pages in the US Code. No one since then has [undertaken such a tally].”

After updating the new count of how many federal crimes there currently are, Baker said the research’s findings show an increase from the 1983 study. “The conclusion we come to, as of this date at least, [is that] we have roughly 4,450 crimes,” he added.

According to Baker, one of complications a researcher runs into while counting crimes within new legislation is that statutes created by the federal government may contain multiple crimes within the texts, and oftentimes do. “One statute in particular in the last eight years was enacted right after [September 11] It contains 60 crimes,” Baker observed.

In order to make sure the study’s current count of federal offenses was as close to perfect as possible, Baker said the research team searched all legislative documents for the words “fine” and “imprison” in order to get an accurate picture of how many federal crimes have been enacted since the last count.

Unfortunately, according to Gohmert, many Senators and U.S. Representatives do not search for new federal laws contained within the texts of bills and acts as thoroughly as they should, and in the end pass legislation that winds up taking away power from state governments.

To prove his point, Gohmert, who is the only former judge on the Judiciary Committee and who is currently serving as the ranking member of the U.S. House Subcommittee on Crime, Terrorism and Homeland Security, pointed to one instance when he spoke with one of his fellow House members about a proposed bill.

According to Gohmert, there was a penalty within the bill the Congressman was trying to pass and was shocked not only by Gohmert mentioning his concern over it, but also by Gohmert even reading the document at all. He said, “I went to him and I said, ‘Look, I don’t think this is doing what you really want it to do, and he said, ‘You read the bill?’ and I said, ‘Yeah, and as a former judge I’d have a real problem interpreting the bill, and I don’t think this is what you want.’”

However, Gohmert said one of the reasons politicians pass legislation that depletes the power of states is to not be considered “soft on crime.” In order to be seen as proactive and looking out for the security of the American people, members of congress present bills that contain more statutes turning state laws into federal ones. This proactivity, in turn, tends to pay off at the polls and get politicians re-elected.

“The power in Washington is like Tolkien’s ring,” said Gohmert. “Really good, wonderful people get the ring, and it changes them and they can’t put it down, they can’t let it go, they gotta fight and do whatever it takes.”

“The only people who want the federalization of crime are members of Congress, members of the Justice Department and members of the White House staff. Other than that, anyone who knows about criminal laws says ‘this is crazy.” And we attempted to try to marshal the arguments that would demonstrate the people that this is unnecessary and maybe dangerous,” Baker said.

“You’re worried about abuse of power on the left of search and seizure, etc. Well, what’s the basis for search and seizure? Probable cause. Probable cause of what? That a crime was committed? Well, the more crimes you enact, the more basis you create for probable cause,” Baker said.

“Who would have thought that the way the genius of the Constitution set things up that the judiciary would prevent the overzealous expansion of criminal laws? But if you look at the mentality of so many, and particularly the majority, on the Supreme Court right now, they want more power. How do they get more power? If Congress passes more laws giving the Justice Department more power, because then that gives them the impetus to take control over yet another area. So the check and balance is thwarted by everybody being a bit too overzealous,” Gohmert said.

According to Baker, sometimes things viewed as a federal offense are just an illegality. “People have come to the notion that if it’s wrong, it’s got to be criminally punished, and that’s complete nonsense. There are all kinds of things that are illegal but not criminal, and if criminal, do not necessarily have to be federally criminal,” Baker said.

“That’s where our real problem is, we don’t understand the difference between violation of a regulation and a crime,” he added.

Both panelists said they believed the imbalance of the checks and balance system would continue to grow if certain things are not realized about the system.

“The more that the American people come to accept that any federal agency with power is somehow a police power, we are, piece by piece, building the police state that the left worries about. Both left and right ought to be worried about the expansion of federal criminal law if we value our liberty which the Founders understood meant leaving general police powers at the local level,” Baker said.

“You want to know how you can get Congress to quit criminalizing so much? It’s gotta be you,” said Gohmert. “Too many people want to get re-elected and if you make clear that the way to do that is not to criminalize things that shouldn’t be criminalized, they’re going to hear you. It’s an amazing process. When the outcry is loud enough, then the elected officials respond or they don’t get re-elected. You can have that effect by being the grassroots, the seed.”

By Emily Ham
July 24, 2008

http://www.aim.org/briefing/making-a-federal-case/

Emily Ham is an intern at the American Journalism Center, a training program run by Accuracy in Media and Accuracy in Academia.

Comments are welcome at redstatepatriot@hughes.net. Please include the title of the article as your subject line. Selected responses, in whole or part, may be published (appended to the article).

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Response by Shelby Y.:
Very interesting. In my second year of law school (you probably were not born yet) I had a tax professor who said on the first day: "When I was a law student, we could carry the Internal Revenue Code in our heads; today we can barely carry it in two arms." Little did he realize that 50 years later we'd need a U -Haul!

I once told a group of students that our Founding Fathers were very smart -- they realized that we shouldn't have too many laws and regulations, so they set up a Constitution and government in which it would be hard to enact laws: They provided that laws require passage by both the Senate and the House, provided for little pay to lawmakers so they would busy themselves with other endeavors, provided they work only part of the year, gave the President the veto power, enabled the filibuster, etc. -- everything to impede the passage of more laws. Still, those bastards in DC finally figured out how to do it -- Thomas Jefferson and his pals never figured on lobbyists and pork-barreling for votes. In his new book, Fleeced, the born-again conservative Dick Morris castigates the present House and Senate as a "do nothing Congress," just as the Democrats in 1956 said Eisenhower was a "do nothing" President. In my onion, those just might be compliments!

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Response by Marty D.:
Every new law, and there are tens of thousands of them every year across the nation, creates a new class of criminals. It won't be long in this relentless march toward criminalization before most of us will be convicted felons, losing the right to vote and to bear arms in the process. Is that the unspoken intent?

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Who was the last Republican president who was a lawyer? Gerald Ford, who left office thirty-one years ago and who barely won the Republican nomination as a sitting president, running against Ronald Reagan in 1976. The Republican Party is made up of real people doing real work. The Democratic Party is made up of lawyers. Democrats mock and scorn men who create wealth, like Bush and Cheney, or who heal the sick like Frist, or who immerse themselves in history like Gingrich.

The Lawyers' Party sees these sorts of people, who provide goods and services that people want, as the enemies of America. And so we have seen the procession of official enemies in the eyes of the Lawyers' Party grow. Against whom do Hillary and Obama rail? Pharmaceutical companies, oil companies, hospitals, manufacturers, fast food restaurant chains, large retail businesses, bankers and anyone producing anything of value in our nation.

This is the natural consequence of viewing everything through the eyes of lawyers. Lawyers solve problems by successfully representing their clients, in this case the American people. Lawyers seek to have new laws passed, they seek to win lawsuits, they press appellate courts to overturn precedent, and lawyers always parse language to favor their side.

Confined to the narrow practice of law, that is fine. But it is an awful way to govern a great nation. When politicians as lawyers begin to view some Americans as clients and other Americans as opposing parties, then the role of the legal system in our life becomes all consuming. Some Americans become "adverse parties" of our very government. We are not all litigants in some vast social class action suit. We are citizens of a republic which promises us a great deal of freedom from laws, from courts, and from lawyers.

Today, we are drowning in laws, we are contorted by judicial decisions, we are driven to distraction by omnipresent lawyers in all parts of our once private lives. America has a place for laws and lawyers, but that place is modest and reasonable, not vast and unchecked. When the most important decision for our next president is whom he will appoint to the Supreme Court, the role of lawyers and the law in America is too big. When lawyers use criminal prosecution as a continuation of politics by other means, as happened in the lynching of Scooter Libby and Tom Delay, then the power of lawyers in America is too great. When House Democrats sue America in order to hamstring our efforts to learn what our enemies are planning to do to us, then the role of litigation in America has become crushing.

We cannot expect the Lawyers' Party to provide real change, real reform or real hope in America. Most Americans know that a republic in which every major government action must be blessed by nine unelected judges is not what Washington intended in 1789. Most Americans grasp that we cannot fight a war when ACLU lawsuits snap at the heels of our defenders. Most Americans intuit that more lawyers and judges will not restore declining moral values or spark the spirit of enterprise in our economy.

Perhaps Americans will understand that change cannot be brought to our nation by those lawyers who already largely dictate American society and business. Perhaps Americans will see that hope does not come from the mouths of lawyers but from personal dreams nourished by hard work. Perhaps Americans will embrace the truth that more lawyers with more power will only make our problems worse.

By Bruce Walker

Hat tip: Tom Dworzanski

Comments are welcome at redstatepatriot@hughes.net. Please include the title of the article as your subject line. Selected responses, in whole or part, may be published (appended to the article).

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Storming the Courts is a fast read - and an advertisement for the fun one can have by going to law school. This resonated with me, since my current job involves promoting the role of lawyers in national security. Still, I found myself getting annoyed by some of the ideological protagonists, like a student referred to as "Lisa Do-Good."

Lisa has never had a job in her life and cries when she hears about the employment offers received by her classmates. Adult employment, it seems requires and certain amount of nuance and subtlety, not something she has in large quantities. To young Lisa, the government's policy on the Haitians was "f----- racist," pure and simple. She spends hours on the computer, reading cases that might stoke the revolution. She even makes Koh weary by her constant harping. She eventually turns on her Haitian clients, saying "I've been killing myself for these people and they don't even give a damn." Welcome to the life of law, Lisa.

When Clinton is elected near the end of the book, Lisa and her classmates allow themselves the hope that the incoming administration will eliminate the Department of Justice's Office of Immigration Litigation (OIL), because its lawyers have the audacity to defend immigration judge rulings to assure that the American borders are not porous.

To these students, OIL is an "insular group with a fanatically anti-immigrant culture." Of course, Janet Reno saw things differently as did her boss, who suffered the political blowback of mass refugee populations of the type depicted in Brian DePalma's Scarface being housed into Arkansas.

I would have liked Storming the Courts better if Koh and his students took up the cause of women who are relegated to slave-like status in the Muslim world, forced to undergo a gruesome medical procedure to assure that they will never enjoy sexual intercourse. Of course, that would require these students to embrace a cause they would rather ignore, because it is championed by right-wingers they likely despise.

Koh and the Center for Constitutional Rights (CCR), which is also featured in the book, have done some good work over the years. I find myself cheering for them as they sue Latin American dictators and death squads and oil companies whose commercial activity leads to violent repression of native populations in Africa and Asia. To me, these cases represent American law at its best. I tend to cringe whenever one of them is thwarted by the appearance of the United States, as when the Justice Department - my employer over the past two decades - files "statements of interest" to stay to litigation against international villains in the name of foreign policy. Alas, my respect for CCR is unrequited. In a March 2007 Legal Times article, Michael Ratner publicly doubted that anyone likes me. I can take that, if that's the worst he can say about me.

Why am I such unlikeable person? For Ratner, it is because I have suggested that there is an unscrupulous form of lawfare. This is a shame, since I am enthusiastic about lawfare in general. It's only the bad form of it that frustrates me, because it makes my profession look ridiculous. This is not a distinction CCR understands.

Lawfare (efforts to achieve of military objectives through legal tools) has developed an unfortunate derogatory connotation, to describe the work of unscrupulous practitioners using legal institutions to thwart otherwise legal U.S. military operations. The problem is that war fighting is governed by international law, and its practitioners are hardly lawless. People who wrongly accuse the U.S. of war crimes are represented by lawyers who need a refresher course in legal ethics, and in what constitutes frivolous litigation.

These practitioners, I believe, deserve the criticism they get. I prefer to label what they do "bad lawfare" or "unscrupulous lawfare," thereby leaving open a form of the term that should be promoted. This distinction has not prevented a group of conservative legal commentators like Andrew McCarthy and Jack Goldsmith from sneering at the term itself, without the necessary qualification that I urge, nor has it prevented people from thinking that I invoke lawfare to condemn it in all forms. It's my goal to steal the term back from them.

I have written about this issue in FindLaw, an online legal magazine. The first of my lawfare articles introduced the concept (which, contrary to popular belief I did not coin), and suggested that lawyers have a vital role to play in counterterrorism, if for no other reason that they control certain levers of statecraft that are sometimes the only counterterrorism option. My second FindLaw article went further, arguing that the American legal community needs to look inward if we ever to take the term lawfare back from its derogatory connotation.

I wrote that there are anecdotal signs that certain American lawyers are practicing the odious form of lawfare, as when they use legal proceedings for their pet political causes or try to impose absurd legal requirements that would prevent the U.S. from fighting wars in a way that conforms with the Law of Armed Conflict. These efforts play into the hands of people who think that lawyers should be eliminated from U.S. national security decision making altogether. I maintain it is an obligation of lawyers to assess costs within our profession, to keep it clear of the taint of those who are inclined to dislike us. Of course I was not speaking on behalf of the United States. I was writing as a licensed lawyer, about an important matter to my profession

The second article apparently hit some FindLaw readers close to home. Over the weekend, I received a bunch of angry e-mails, mainly from human rights practitioners in Scandinavia and radical New York lawyers, who expressed chagrin in my comments.

I responded to all of them. This was easy, for they generally misunderstood my argument to say that lawyers should not be involved in counterterrorism or in seeking to enforce that the U.S. government act in a legal way. In fact, that was the exactly opposite of what I was saying. I made no apologies. Then, about a week later, I learned that Legal Times was planning an article on the controversy I had stoked, which would include suggestions that I had somehow violated ethics rules and should be fired from federal employment.

What an ironic way for lawyers to react, I thought, to a message with which they happen to disagree. Moreover, I was arguing in favor of lawfare, and limited my condemnation to the type of lawfare that gives lawyers a bad name. Since when is that a firing offense?

At the urging of the Department of Justice's Public Affairs Office, I spoke to the Legal Times reporter, explained my position, and pointed her to other articles I had written on the subject. She took it all in. The resulting piece was far more balanced than her initial inquires seemed to portend, though she included that quote from Michael Ratner that I am not a likeable person. Surely he was speculating, for we have never met. Still, that's fair. I don't much like Lisa Do-Gooder, though I've never met her.

The latest form of bad lawfare is exemplified by the absurd lawsuit CCR recently fired against Professor John Yoo. His crime was giving advice to his superiors when he was employed by the government. This advice included whether it was okay to hold Jose Padilla after he was arrested in the United States on his way to do something bad on behalf of al Qaeda.

Of course, we all know that Jose Padilla is being held incommunicado, deprived of the ability to see a lawyer. However, I seem to recall that the Supreme Court issued an opinion on Padilla's detention, which means that perhaps he did have a lawyer. I also heard a rumor that he had a trial, overseen by federal judge Marcia Cooke, and it involved a jury. I seem to recall that Padilla was convicted, and that there was something called a "sentencing hearing" this past week in Miami. At least that's what the newspapers say.

Given these rumors, what is it CCR alleges John You to have done? He spoke words to his supervisors. He even wrote words on papers that were routed to them. Now I seem to remember something about "sticks and stones," and how they might be contrasted with words, in terms of their ability to hurt. That may be just a rumor as well.

Of course, CCR believes that money - which can buy sticks and stone, as well as bombs and bullets - qualifies as something that can never cause harm. That is why they have argued that the United States cannot constitutionally criminalize the act of giving money to foreign terrorist groups, and that private lawyers suing on behalf of victims of Hamas terrorism cannot collect against those who gave Hamas money, even if the government has announced that it is foreseeable that all money sent to Hamas will help it wage its campaign of indiscriminate violence.

How would CCR feel about American manufacturing companies that sell some of its lawful products to the Israeli military? Is that unreachable? Hardly. Jennifer Green of CCR, who filed a lawsuit against Caterpillar for its acts of selling bulldozers to the Israeli government, stated "[I] imposing liability for knowingly providing substantial assistance in the commission of internationally wrongful conduct requires no revolutionary insight. It only requires faithful adherence to the understanding of the [American law] at its inception and the application of modern common law principles." Banks providing financial service to the South Africa Apartheid regime? Also fair game to CCR.

I see. So to CCR, it all depends on the identity of the defendant. If they have done something that CCR does not like, they can be sued. If not, such lawsuits are unconstitutional.

This makes likeability legally actionable. John Yoo's problem, like mine, is that he is not liked, at least to CCR. If CCR has its way, perhaps people will think twice before joining the McCain or Romney Administration. After all, there are a group of young lawyers and law students lying in wait, ready to storm the courts. Indeed, law can be fun.

By Jeff Breinholt
January 24, 2008

The original article can be found at http://www.familysecuritymatters.org/

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The sad snake oil sold to the American people is that a lawsuit is the economic equivalent of winning the lottery. They are told, and believe, that for every wrong there is a remedy and that courts are simply tools for the enrichment of those who have suffered some disappointment. As a result, courts throughout the nation are clogged with anxious plaintiffs complaining of simple slights that should never have seen a courtroom. A recent case was filed in San Diego by an electrician who got into an argument with a co-worker and was dismissed with a common epithet comprised of two words, the second of which was "you." It seems the poor dear experienced extreme emotional distress from this egregious act and asked for court intervention to relieve his suffering.

Though the case was dismissed, it consumed court and attorney time and resources – and is symptomatic of the resort to courts for civil relief for the slightest of insults. It arises at least in part from our culture of victimhood and the plaintiff's bar's success at squeezing ridiculous results out of juries. It comes, too, from the Left's success in getting the American people to buy the idea that companies should pay when someone is annoyed, irrespective of whether or not the companies have done anything wrong. And so plaintiffs roll the dice and see if they can cash in, encouraged by mobs of plaintiff's lawyers by promises of undeserved riches.

At the same time, the revolution wrought by Supreme Court jurisprudence in the 1950s and '60s convinced the public that they, by gosh, have rights. The Court found in the penumbras of the Constitution newly minted rights and issued attenuated opinions enshrining protections never contemplated by the Founders. A nation that freely accepted the death penalty at its founding suddenly discovered that it might violate the prohibition against "cruel and unusual punishment." Put aside the fact that the Congress that passed the amendment making that prohibition existed at a time when the death penalty was in full and frequent use throughout the land; a fact that did not seem to trouble those who passed the prohibition and who saw no contradiction in the act.

Criminal defense lawyers pressed ever more creative Constitutional theories and suggested inventive new remedies for their violation. So it was that criminals were set free by courts on the flimsiest of grounds to further engage in their predatory acts. The unsurprising result was an explosion of crime in the late '60s and throughout the '70s, as those inclined to criminality concluded that they were unlikely to be caught, less likely to be convicted, and still less likely to be punished if they were.

This prompted in the advocates of expanded readings of Constitutional rights no word of protest from their lofty perches high above the mean streets the citizenry had to navigate. It was easy to self-righteously suggest that this was an appeal to the best in us when they paid no direct consequence for it. Those paying the highest price were, as usual, the poor and most vulnerable who suffered a virtual holocaust of crime because modern Constitutional theory encouraged increased criminality. That is the trouble with idealism unleavened by experience and common sense. It is easy for a judge to let an obvious criminal free when protected by bailiffs and metal detectors in the armed citadels we call "courthouses."

It was only when the public, genuinely outraged by the excesses of a criminal justice system warped by Leftist academic legal theories, rose up in protest and handed votes to every politician who suggested he would fight crime and bring the courts to heal. It is no accident that Republicans who, until the late '60s appeared to be a permanent minority, began their inexorable political assent. They were for the death penalty. They were for determinate sentences. They were for putting the bad guys behind bars and leaving them there. And they were rewarded with votes.

But the impetus to odd Constitutional theory goes on. Today, the Supreme Court will hear arguments in Boumediene v. Bush, a case bearing on the "rights" of Guantanamo detainees. It is the next in line of a series of cases pressed for the purpose of vindicating odd notions of rights during wartime and the success of which would result in the same geometrical increase in international crime that was the result of the proponents' efforts during the Warren Court era.

The effort is no less than the ambitious attempt to apply all of the attenuated Constitutional theories that resulted in our last major national crime wave to international terrorism. It is an effort to extend American rights to non-Americans committing their crimes far from America against Americans. And it is being sold with same self-regard and self-righteousness that was employed in the '60s: "We are better than that. We must live up to our ideal of equal justice under the law." Equal justice under the law applies to those in the United States and only to those in the United States or subject to its laws.

The immediate question before the Court is whether Congress can oust the courts of jurisdiction to hear habeas corpus petitions. That is hardly a question worth debating. The "checks and balances" Leftists tout in other contexts exist so that each branch can, one way or another, limit the power of the others. Congress has always had the power to oust the federal courts of jurisdiction over matters of controversy. Indeed, the federal courts below the Supreme Court are a matter of grace by Congress, not a mandate of the Constitution. Congress has the power to repeal the various judiciary acts that create them without running afoul of the Constitution, which does not require that they be established.

Although the immediate matter before the Court is the more esoteric one of jurisdiction and Congress's power to limit it, there is no question but that the greater issue is whether American rights extend to other than those in the United States, subject to its laws. It has never been the law of this nation that the rights protected under our Constitution extend to every human being in every place on the globe. Law is a function of the culture in which it takes root. The United States was founded largely by the children of the enlightenment whose lives were informed by the profoundly civilized philosophical project of individual liberty. As a cultural institution, it depends on the underlying assumption that those who inhabit the culture have similar, if not congruent, social values and have bought into the overarching cultural assumptions that give cohesion to their society. Without the embracement of basic cultural and ethical norms, cultural standards will not be achieved by citizens, and the assumptions that make up voluntary obedience to law will not exist.

The fundamental mistake made by those who argue for American rights for Guantanamo detainees is that American law is effective for governing people who share neither American values nor American cultural norms. Law is the governmental imposition of the basic rules of a society. It is about the enforcement of fundamental cultural norms on those who accept an overarching cultural standard. Our treatment of foreign terror suspects is not about our values, it is about theirs. Our values are intact, but our constitutionally protected liberties can extend only to those who accept the basic cultural values that make them work. Those who reject those values do not accept the duties that go with living in the society that embraces them and, without the acceptance of those duties, the protections that accompany them for those who do, give only advantage to those who have no call on that benefit.

It is odd that the very people who argue that President Bush is hopelessly naïve in thinking we can promote democracy in countries that have no historical understanding of it, are the very same people who think that the complicated mechanisms of American law should be set to the wholly unprecedented situation of an inchoate international terrorist effort. The fact is that planted democracy is much more likely to take root than the imposition of American standards of constitutional protection is to serve the very function of law: to protect the innocent.

Extending American due process rights, including habeas corpus, to foreign nationals in time of violent conflict, has not only never been done by any nation at any time, it will lead to nothing but chaos and confusion in our soldiers who will be expected to understand legal norms that most lawyers do not even comprehend. The battlefield is a bad place to test new jurisprudential ideas and it is destructive to the mission. It has been said that the Constitution is not a suicide pact and where you are fighting people who will not be bound by the cultural values that serve as the basis for law, extending the protections of that law is not only inappropriate, it is wrong-headed.

That is why the plaintiffs in Boumediene are wrong. The cases are legion in which court after court, including the United States Supreme Court, has concluded that American Constitutional rights are enjoyed by Americans and those who commit crimes in our country. That is the conclusion of Johnson v. Eisentrager, a 1950 United States Supreme Court case in which it was decided that German detainees at the end of World War II were not entitled to habeas corpus. In ruling, the Court observed that extending the right to habeas corpus to foreign nationals in foreign countries would "hamper the war effort and bring aid and comfort to the enemy." Just so.

We live in a dangerous time with dangerous and determined enemies not tethered to formal governments. As such, they are not entitled to the protection of the Geneva Conventions. We have extended to them far more rights than any nation ever has enemy combatants. They have contested hearings before military judges; the same types of tribunals our military men and women get when accused of crimes in uniform. They have a review right in a federal court. For those who say "we are better than that" as if, somehow, extending less than the full protection of the Constitution of the United States to those not entitled to any of its rights is less than we should do, we must ask: how many nations provide due process to their own citizens as great as those we do these detainees? Why should these detainees receive more rights than our own soldiers?

Who, among nations, is in a position to criticize our handling of these prisoners? What nation would extend the protections we do? Where, then, does anyone get the idea that we lose our respect among nations when we provide more rights to these detainees than any of them would? Any nation or national leader who suggests that we are betraying our ideals in this regard is simply playing for political advantage. And, any such leader should be challenged to meet even these standards in his own country.

In the end, our treatment of these detainees is more civilized than they have any right to expect and certainly more humane than they would receive at the hands of any other nation. I spoke with a nationally known liberal radio talk show host who vigorously disagreed with my position in this regard, accusing me of being inhumane. When I pointed out that if we want to keep terrorists from being released by federal courts to terrorize again, the only alternative would be for soldiers to kill rather than capture them; he said that that would be more acceptable. So much for liberal compassion.

The original article can be found at http://www.familysecuritymatters.org/

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In the Medellin v. Texas case, which we addressed in a June 12 special report, the Bush Administration acted so committed to the primacy of international law and global courts that it took the President's home state of Texas to court on behalf of a group of convicted Mexican killers. The Mexicans had been sentenced to death for murdering U.S. citizens, including teenagers and young children. It is another low point in the presidency of George W. Bush but it helps explain the twisted mentality behind the administration's push for ratification of the dangerous United Nations Convention on the Law of the Sea (UNCLOS).

Medellin v. Texas figured in Mexico v. United States, the case brought before the U.N.'s International Court of Justice (ICJ). The ICJ ruled 14-1 on behalf of Mexico against the U.S., insisting that the killers were somehow denied their rights to seek outside counsel and advice from Mexican authorities. The ICJ was headed at the time by a judge from communist China, who also ruled against the U.S.

John B. Bellinger III, Legal Adviser to Secretary of State Condoleezza Rice, cited Mexico v. United States of America in a June 6 speech trying to convince international lawyers that the administration is doing what it can to enforce international law in U.S. courts. He noted with pride that Bush had come down on the same side as the U.N.'s International Court of Justice. In the ICJ decision, Bellinger said, "the ICJ ordered the United States to review the cases of 51 Mexican nationals convicted of capital crimes." And the President, he said, "acting on the advice of the Secretary of State," decided to "require each State involved to give the 51 convicts a new hearing." That's a total of 51 convicted killers that the President sided with. Assuming the role of a dictator, Bush ordered Texas and the others states to comply with this U.N. court. Texas and many other states resisted. Hence, the case now before the U.S. Supreme Court.

Bellinger's audience for his June 6 speech was gathered at The Hague, a city in the Netherlands which is home to over 100 international organizations, including the U.N.'s International Court of Justice and the International Criminal Court.

Bellinger may have mollified the globalists but the reaction that the case is getting here in the U.S. is very different. The reaction is one of anger and outrage. Fox News and the Laura Ingraham radio show are among the media which have featured emotional interviews with the father of one of the murder victims, Jennifer Ertman. He flatly accused Bush of being a liar when he said he wanted to see justice done in the case and the killers punished for their crimes. He noted that Jose Ernesto Medellin has been on death row longer than his daughter lived. Medellin and other gang members raped and murdered Jennifer Ertman and Elizabeth Peña as the girls were going home.

James Oliphant of the Chicago Tribune provides some of the graphic details about the case: "Medellin stopped Peña. When she tried to run, he threw her to the ground. Ertman ran to help her but also was shoved to the ground. They were gang-raped and beaten. Even as the girls begged for their lives, they were dragged to nearby woods and strangled, one with her own shoelace, the other with a belt and then by a shoe pressed on her windpipe. Their bodies were found four days later." Medellin had no regrets and bragged about the crime.

Bellinger acknowledged to the international lawyers that "The first defendant to try to take advantage of the President's decision was in the state of Texas, which objected to the President's decision. In response, the Texas Court of Criminal Appeals ruled that the President had no power to intervene in its affairs, even to obtain compliance with an order of the ICJ. This Administration has gone to the Supreme Court of the United States to reverse this decision. We expect a ruling from that Court this time next year."

This is the case before the Supreme Court on October 10. A decision, as Bellinger indicated, is expected next year.

We don't know how the Supreme Court will rule on this case. But the people don't have to wait before sending the President a strong message of protest. They can send that message by having the Senate defeat Bush's U.N. Law of the Sea Treaty and by drawing the line at further interference by U.N. courts in our sovereign affairs.

The American people have shown, through derailing the Senate's illegal alien amnesty bill, that they won't play dumb or go to sleep when the issue is American sovereignty. That is why the Mexican killers case is striking such a chord, leading many to wonder if President Bush has lost his mind by intervening on behalf of the corrupt U.N. and its foreign judges against his home state of Texas.

The problem, of course, goes far beyond the Medellin case or UNCLOS. Trying to appease his foreign audience at The Hague, Bellinger declared that Bush was now trying to get 35 treaties, including UNCLOS, ratified. Bellinger declared that "international law binds us in our domestic system" and that the Bush Administration had entered into 429 international agreements and treaties last year alone. He bragged that, "…I have a staff of 171 lawyers, who work every day to furnish advice on legal matters, domestic and international, and to promote the development of international law as a fundamental element of our foreign policy."

After hopefully defeating UNCLOS--and the battle is now underway--we should show Mr. Bellinger and his fancy legal team the door.

As for the President, it looks like he's trying to bring into being the New World Order his father only talked about. It's not a legacy to be proud of. But it's one that a President Hillary Clinton would like to inherit. (emphasis added)

Original article: Accuracy In Media
http://www.aim.org/aim_column/5807_0_3_0_C/

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The only explanation most people express is one of racism. If it was no big deal to have to stand, then why did the caucasian man demand to be seated? His action asserted a societal convention of racial superiority prevalent in the old South nearly a century after the end of a civil war, a convention that said no black person had ‘any right’ that a white man was bound by law or courtesy to respect, even in inconsequential things such as standing or sitting on a bus.

Most would argue that the man who was demanding Rosa Parks’ seat in the so-called colored-section of the bus, and the bus company that acceding to it, proved that the doctrine of "separate but equal" (that had existed before being outlawed by Brown v. Board of Education in 1954) was a lie. The demand for separation in itself created an entitlement of one race over another that violated basic notions of fundamental fairness and fundamental rights, as equal opportunity policies today shamefully do (with your acquiescence) in reverse. Do you understand the point?

Setting aside the emotional notions of race, what was the fundamental right, by staying seated in the face of a threat of arrest and jail, that Rosa Parks was asserting? As she told National Public Radio in a 1992 interview, "I did not want to be mistreated; I did not want to be deprived of a seat that I had paid for."

“I did not want to be deprived of a seat that I had paid for."

In short, Rosa Parks was asserting a fundamental property right. Rosa had purchased her ticket, and paid for it by the fruits of her own labor. She had boarded the bus first. She even sat in the section designated for her. Since she had purchased that seat and the bus company had sold it to her, nobody had a right to take her seat away from her. Rosa Parks' simple act of defiance was as profound a declaration of property rights and of freedom - as any in American history.

In her auto biography, "My Story," Rosa Parks wrote:

"People always say that I didn't give up my seat because I was tired, but that isn't true. I was not tired physically, or no more tired than I usually was at the end of a working day. I was not old, although some people have an image of me as being old then. I was forty-two. No, the only tired I was, was tired of giving in."

As far back as the Magna Carte in the 13th Century, it was established that "[n]o freeman shall be taken, imprisoned, disseised [i.e. dispossessed of property] ... except by the lawful judgment of his peers and by the law of land."

Rosa Parks’ rejection of the bus system's attempt to dispossess her of her seat was in line with what John Locke in his Social Contract theory would argue was the right to object by any individual denied his basic property rights, which governments are originated to defend, not offend.

Or, as Adam Smith in Lectures on Jurisprudence, declared:

"The first and chief design of every system of government is to maintain justice: to prevent the members of society from encroaching on one another's property, or seizing what is not their own (including earned wealth). The design here is to give each one the secure and peaceable possession of his own property."

Our most basic founding documents state, "all men are created equal, endowed by their creators with certain inalienable rights, life, liberty and the pursuit of happiness." What happiness can be pursued if government can simply take away anything that by "right" is supposed to be yours and yours alone? Maybe the government is telling you that what you think is your property is not yours, but belongs to the government.

Who will be the Rosa Parks of Eminent Domain property rights? Who will refuse to give up their seat on the bus that they have paid for and are entitled to keep, free from interference or seizure by the state, local municipality or corporate pirates? When that day comes, the whole nation will be in the bleachers cheering for the private property owner.

Who will be the Rosa Parks of gun ownership and refuse confiscation or registration of their privately owned and constitutionally safeguarded guns and ammunition?

Who will be the Rosa Parks of freedom of speech, the first to refuse political correctness? Don Imus had the opportunity but failed to rise to the occasion.

For that matter, who will be the next Rosa Parks? Are you willing to defend your property rights?

While you're thinking about it, keep in mind that everything is 'property rights,' at least in a free society with "liberty and justice for all." Conversely, whatever property it may be, if the State taxes it, the State owns it and rents to you the privilage of possession, transfer and/or personal use. If the State can take "your" property from you by any artifice for failure to pay taxes, then you never owned it.

The Bill of Rights comprises the first ten amendments to the Constitution. Those amendments were adopted between 1789 and 1791, and while many scholars attribute their intention to limiting the power of the federal government, the fact is that they were intended to protect your private property rights. They were added in response to criticisms of the Constitution by the state ratification conventions and by prominent individuals such as Thomas Jefferson (who was not a delegate to the Constitutional Convention). These critics argued that without further restraints, a strong central government would eventually become tyrannical. The amendments were proposed by Congress as part of a block of twelve in September 1789. By December 1791 a sufficient number of states had ratified ten of the twelve proposals, and the Bill of (property) Rights became part of the Constitution.

An "Amendment" is a change to the U.S. Constitution as it was originally written and ratified. The Constitution provides for several mechanisms for change, none of which include a judicial fiat, congressional legislation, or executive disdain for the rule of law.

A general interpretation of inapplicability to the states remained until 1868, when the Fourteenth Amendment was passed, which stated, in part, that:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ” The Supreme Court has interpreted this clause to extend most, but not all, parts of the Bill of Rights to the states. Nevertheless, the balance of state and federal power has remained a battle in the Supreme Court.

The amendments that became your Bill of Rights in 1789 were:

First (property right) Amendment: addresses the rights of freedom of religion (prohibiting the Congress' establishment of any religion over another religion through Law and protecting the right to free exercise of religion), freedom of speech, freedom of the press, the freedom of assembly, and freedom of petition.

Second (property right) Amendment: declares "a well regulated militia" as "necessary to the security of a free State", and as explanation for prohibiting infringement of "the right of the people to keep and bear arms."

Third (property right) Amendment: prohibits the government from using private homes as quarters for soldiers without the consent of the owners.

Fourth (property right) Amendment: guards against searches, arrests, and seizures of property without a specific warrant or a "probable cause" to believe a crime has been committed. Some rights to privacy (another property right) have been inferred from this amendment and others by the Supreme Court.

Fifth (property right) Amendment: forbids trial for a major crime except after indictment by a grand jury; prohibits double jeopardy (repeated trials), except in certain very limited circumstances; forbids punishment without due process of law; and provides that an accused person may not be compelled to testify against himself (this is also known as "Taking the fifth" or "Pleading the fifth"). This is regarded as the "rights of the accused" amendment. It also prohibits government from taking private property without "just compensation," the basis of eminent domain in the United States.

Sixth (property right) Amendment: guarantees a speedy public trial for criminal offenses. It requires trial by a jury (of peers), guarantees the right to legal counsel for the accused, and guarantees that the accused may require witnesses to attend the trial and testify in the presence of the accused. It also guarantees the accused a right to know the charges against him. The Sixth Amendment has several court cases associated with it, including Powell v. Alabama, United States v. Wong Kim Ark, Gideon v. Wainwright, and Crawford v. Washington. In 1966, the Supreme Court ruled that the fifth amendment prohibition on forced self incrimination and the sixth amendment clause on right to counsel were to be made known to all persons placed under arrest, and these clauses have become known as the Miranda rights.

Seventh (property right) Amendment: assures trial by jury in civil cases involving anything valued at more than 20 United States dollars at the time, which is currently worth $300, when accounting for inflation.

Eighth (property right) Amendment: forbids excessive bail or fines, and cruel and unusual punishment.

Ninth (property right) Amendment: declares that the listing of individual rights in the Constitution and Bill of Rights is not meant to be comprehensive; and that the other rights not specifically mentioned are retained elsewhere by the people.

Tenth (property right) Amendment: provides that powers that the Constitution does not delegate to the United States and does not prohibit the states from exercising, are "reserved to the States respectively, or to the people."

Your life is your property, as is every other form of your "property;" even your job is a form of property. Property rights are guaranteed to you by the U.S. Constitution and the Bill of Rights (first 10 Amendments). If you think the State, or your state, has extended their control to some aspect of your life in contravention of the Bill of Rights, then the State has diminished or seized (taken from you) some aspect your private property.

What specifically do you think you still own as private property that the State has not already seized (evidenced by the imposition of taxes) or regulated in some fashion? Do you even have freedom of speech?

Red State Patriot

Comments are welcome at redstatepatriot@hughes.net. Please include the title of the article as your subject line. Selected responses, in whole or part, may be published (appended to the article).

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Jeannie and Greg Bandy were shocked to discover that their son was charged with possession of child pornography.

One December morning two years ago, Matthew's life took a dramatic turn. In an exclusive interview with "20/20," the Bandy family reveals how the world as they knew it came crumbling down, and how Matthew's life has since changed.

A Family Shattered

It has been two years since police officers stood at the doorstep of the Bandy home with a search warrant bearing a devastating charge -- possession of child pornography.

"It was 6 a.m. It was still dark.there was this pounding at the door," Jeannie Bandy said. "I was petrified."

Police officers stormed into the house with guns pointed. "The first thing I thought was, someone's trying to break in our house," Matthew said. "And then there [were] police officers with guns pointed at me, telling me to get downstairs."

Greg Bandy was handed the search warrant and informed that the central suspect was Matthew. According to the warrant, nine images of young girls in suggestive poses were found on the Bandy family computer. Yahoo monitors chat rooms for suspicious content and reported that child porn was uploaded from the computer at the Bandys' home address.

"When they asked me have you ever looked up or uploaded or downloaded erotic images of minors, I was just taken aback and I said, 'No,'" says Matthew.

Nevertheless, Matthew did have an embarrassing confession. He had been sneaking peaks at adult erotic photos on the family computer. "I got the Web site from a bunch of friends at school. [It was] just adult pornography Playboy-like images."

Difficult to admit, but not illegal -- or so it seemed. Still, it didn't look good for Matt, as police confiscated the computer and left the house that December day. A family was shattered.

"I still remember when they were cleaning up and leaving and of course I was still in my pajamas and my bathrobe and my fuzzy slippers," Jeannie Bandy said. "I said, 'What do we do now? Should I contact a lawyer?' [The police officer] said, 'Well, they are felonies that the state takes very serious.'"

The Bandys would soon find out just how serious the charges against Matthew were. The family hired Ed Novak, a well-respected attorney from a large law firm in downtown Phoenix.

"20/20" correspondent Jim Avila asked Novak what the family was up against.
"We faced 10 years per count, there were nine counts," said Novak. "If Matt was convicted, those sentences would have to be served consecutively. In other words, he would have been sentenced to 90 years in prison. He would have served time until he died."

Greg and Jeannie Bandy knew their son well. They were shocked at the serious charges against him and frightened by the prospect of such a serious sentence.

"He's never done any drugs," Greg said. "He never drank a drop of alcohol. He's never been a problem, never stayed out late and gotten into trouble or anything like that."
A Sex Offender?

Arizona child pornography laws are among the harshest in the country. As soon as Matthew was charged, he was put on virtual house arrest, and an electronic bracelet was attached to his ankle to monitor his movements 24 hours a day.

"It was just terrifying. I didn't know what was going on. I didn't know why it was happening," Matthew recalled.

Matthew was in an awful predicament, and he tried to keep his house arrest a secret. He wore longer pants to hide the ankle bracelet, but he was scared he would be discovered.

"Yes, I was very scared," he said. "If they found out that I was wearing an ankle bracelet all of a sudden they would be wondering, why are you wearing that? And I had no good answer for them."

The shy young boy could not explain how such pictures appeared on his computer hard drive. The stress of the situation got so bad for Matthew that he told his parents the charges hanging over his head made high school impossible.

"He said 'Mom, I'm hurting,'" said Jeannie. "'I can't sleep. I don't want to disappoint anybody, but I just can't go on anymore.'"

Matt's dreams had been destroyed and his mother was crushed. And even though there was no proof that Matthew personally downloaded those nine pictures, it would be difficult to prove his innocence. Novak said that the pictures alone were practically all the evidence the police needed.

"I thought his chances of winning were probably 20 percent," said Novak. "They didn't care that I denied it," Matthew said. "They just kept on asking me and kept on thinking that I did it. They just had it built into their mind that this kid is guilty."

What is so frightening about Matt's case? It could happen to anyone.

"The computer had accessed a 'Yahoo' account where there was child pornography," Andrew Thomas, Maricopa County district attorney said. "That was the basis for the search warrants issued by a court."

Yet, the evidence submitted by the Phoenix police department did not identify a specific user. Matt's clean reputation, his good grades and protective family could not stand up to the cold fact that child porn was on that computer. The police and the district attorney had the incriminating photos from the Bandys' computer and the prosecutors were determined to send Matt away.

A Family Fights Back

Matthew Bandy found himself outmatched in the national campaign against child pornography -- harsh laws designed to keep track of pedophiles and punish them severely.

"They didn't care that I denied it, they just kept on asking me and kept on thinking that I did it," he said. "They just had it built in their mind that this kid is guilty, and we're going to make sure that he's convicted. No matter what the means are."

The Bandy family contends that Thomas was on a mission and that his desire to convict was so strong that he ignored important evidence -- like the fact that Matthew passed a lie detector test. The fact that the test indicated that Matt was telling the truth wasn't taken into account.

And that's when the Bandy family really began to fight back. They hired two polygraph examiners who confirmed Matthew was telling the truth. Then they ordered two psychiatric evaluations which concluded that Matthew had no perverted tendencies.

ABC's Jim Avila asked Thomas about the results of the lie detectors tests and Matt's psychiatric evaluations.

"Quite frankly, criminal defendants are not famous for being forthcoming with the facts," Thomas explained. "I'm not a big believer in polygraph tests. And certainly, they're not admissible in court. At the end of the day, we certainly felt there was a good faith reason to go forward with the prosecution." (To read excerpts of Jim Avila's interview with Thomas, see: http://abcnews.go.com/2020/story?id=2791529&page=1)

Despite the positive polygraphs and psychiatric exams, the district attorney pressed on. So the Bandys and their attorney tackled the most difficult question on the table. If Matthew didn't put the pictures on the computer, how did they get there?

For that answer, they turned to computer forensic expert Tammi Loehrs.

"If you have an Internet connection, high speed, through, let's say, your cable company, or through the phone company, that computer is always on, and basically you have an open doorway to the outside," Loehrs said. "So the home user has no idea who's coming into their computer."

Loehrs went into the Bandys' computer and what she found could frighten any parent -- more than 200 infected files, so-called backdoors that allowed hackers to access the family computer from remote locations, no where near Matthew's house.

"They could be on your computer and you'd never know it," she said.

Loehrs says she does not believe that Matthew uploaded those images onto his computer "based on everything I know and everything I've seen on that hard drive."

But police still had those pictures, and the harsh child porn laws made going to court risky for Matthew.

"All the jury would know is that there were these images on the computer," Matthew said. "And here's me sitting in the courtroom. Let's blame him because he was on the computer, obviously he did it."

'We Had No Faith'

Even if he was only convicted on one count, Matthew would have faced 10 years in jail, and have his "life ruined," said Novak.

"We had no faith," said Jeannie Bandy. "Our lawyers had no faith. We were told he more than likely would end up in jail."

So the Bandys took a deal from the prosecution. In exchange for dropping all counts of child pornography, Matthew pleaded guilty to the strange charge of distributing obscene materials to minors -- a "Playboy" magazine to his classmates.

"To be precise, he was charged with showing [a Playboy magazine to other 16-year-olds] before school, at lunch and after school," Greg Bandy said.

But the Bandy family nightmare was not over. While the prosecution deal offered no jail time for Matthew, he would still be labeled a sex offender. Under Arizona law and in most states around the country, sex crimes carry with them a life of branding. Matthew would be forced to register as a sex offender everywhere he lived, for the rest of his life.
"I have to stay away from children," said Matthew. "I cannot be around any area where there might be minors, including the mall, or the movies, or restaurants or even church. To go to church I have to have written consent from our priest, I have to sit in a different pew, one that doesn't have a child sitting in it."

'Computers Are Not Safe'

The judge couldn't believe the prosecution was insisting on sex offender status and invited Matthew to appeal. "20/20" was there when two years of fear and misery finally ended. A message arrived from the judge, ironically on the computer, informing them that Matthew would not be labeled a sex offender. Matt and his parents had won his life back.

In the den of the Bandy home sits the family computer, now unplugged from the Internet. The Bandys learned that, for them, the Web is simply too dangerous.

"It means that computers are not safe," said Jeannie. "I don't want to have one in my house. Under even under the strictest rules and the strictest security, your computer is vulnerable."

Copyright © 2007 ABC News Internet Ventures

Related: How To Protect Your Computer!
http://abcnews.go.com/2020/story?id=2791407&page=1

Hat tip: Frank Cuccia

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