A Commissar Arises

Commissar Andrew Thomas addressing his neo-totalitarian comrades at a gathering of the artfully misnamed Federalist Society.

A little more than two years ago, Matthew Bandy of Phoenix, Arizona was a well-mannered and unremarkable 16-year-old boy who displayed a defect common to males of his age: An undisciplined adolescent libido.

A little more than two years ago, Andrew Peyton Thomas of Phoenix, Arizona was a 39-year-old County Attorney who displayed numerous defects common to those who eschew honest work and instead place themselves on a public payroll. For the purpose of this discussion, we'll limit our inventory to just one of those failings: Thomas was indecently eager to use the power of his office to stage high-profile prosecutions for reasons of ambition and ideology.

On December 16, 2004, the Bandy family was rudely awakened by a 6 am knock on the door. Armed policemen, their guns drawn and their game faces on, shouldered their way into the home and handed Greg Bandy a search warrant, telling him that his son Matthew was suspected of possessing child pornography.

Greg adamantly denied any interest in, or possession of, erotic images of children. He did grudgingly admit to downloading more conventional smut from the Web. The police confiscated the computer; a cursory investigation found nine child porn images on the hard drive. This confirmed a report to the Phoenix police from Yahoo monitors, via the National Center for Missing and Exploited Children, that nine child porn photos had been uploaded to a chat room from the Bandy family's household computer.

Arizona's child porn laws are draconian and inflexible, and Maricopa County Attorney Thomas, borrowing a favorite trope of Bill O'Reilly, had campaigned as the scourge of child exploiters. He charged 16-year-old Matthew Bandy with nine counts of possession and distribution of child pornography, each of which was a class 2 felony with a mandatory ten-year sentence.

Those sentences would have run consecutively, not concurrently. Which means Matthew Bandy would have died in prison – either of old age, prison violence (most likely involving some form of sexual degradation), or suicide.

Thomas, in effect, was prepared to steal a 16-year-old's life from him as punishment for a sex crime in which he never laid a hand on another human being.

Now, compare the sentences Matt Bandy faced with the wrist-slap – no, more like wrist-caress – given to 18-year-old Clifton Bennett, son of Arizona State Senate President Ken Bennett, for molesting 18 young kids with a broomstick at summer camp. The judge in Bennett's case – with the support of the prosecution – consolidated the 18 counts to one for the express purpose of helping the privileged teenager avoid jail time. Dear young Cliffy's powerful Daddy complained that a felony would prevent his son from serving a mission for the Mormon Church.

In this, as in so much else, we see that in our feudalist system of “justice,” mercy is for the powerful.

Immediately after being charged, Matthew was confined to virtual house arrest and forced to wear an electronic tracking device on his ankle. His family hired a high-octane defense attorney named Ed Novak, who demanded to have the hard drive tested by independent forensic experts. On Novak's initiative, Matt took and passed polygraph tests and psychiatric evaluations.

Thomas's office, instead of providing the hard drive for inspection, offered another deal: Matthew could spent up to 15 years in prison, and be a registered sex offender for life. The latter would mean he could have no contact of any kind with children or be in proximity to minors in any setting.

Novak again demanded to see the hard drive. Thomas again refused to provide it, even ignoring court orders to do so. Eventually the Bandy family took the matter to the state Supreme Court and forced the intransigent Thomas to turn over the drive for examination.

When it was presented for inspection by computer forensic specialist Tammi Loehrs, the hard drive was found to contain more than 200 infected files, including "backdoor Trojans" (I heard that -- stop snickering, Beavis) that apparently permitted a hacker to use the Bandy computer to store the child porn and upload it to the Yahoo chatroom. Remote infestation of home computers by child porn is horrifyingly common.

Even so, prosecutor Thomas, displaying a vicious tenacity that would make Shylock look like the very soul of reasonable compromise by comparison, insisted on a deal in which Matt would plead guilty to one charge of distributing obscene material to minors – by taking a copy of Playboy to school and showing it to three of his friends. No jail time would have resulted from this charge. However, Matthew – unlike, say, those who corrupt youth with the State's blessing via “sex education” -- would still be labeled a sex offender and serve 18 months' probation.

Amazing as it may seem, this matter was heard by a judge who possessed a particle of rationality and a smidgen of common sense. He accepted the guilty plea, but threw out the sex offender designation.

It is not my intention to say that peddling pornography is a victimless act. (There's an interesting discussion of that claim in – of all things – Hundred-Dollar Baby, the current Spenser novel by Robert Parker. The novelist, who is by no means a conservative, appears to believe, as I do, that pornography inflicts severe damage on both the consumers and producers, and that its collateral damage is substantial as well.) The facts of the Matthew Bandy case are these: He was accused of a crime the government couldn't prove, and then blackmailed into pleading guilty to an act that has not been prosecuted as a crime within living memory.

Behind this lurks the smirking, self-satisfied figure of Andrew Peyton Thomas, the bland, artfully coiffed personification of the new totalitarianism (and, perhaps not coincidentally, a near ringer for David Duke when seen from certain angles). After doing his considerable best to steal the life of a predictably misbehaving teenage boy, Thomas still insists that he has done nothing wrong, that he had actually performed some variety of public service by teaching Matt that "you know, these kids really shouldn't be takin' [nervous chuckle] Playboys to school."

If Thomas wants to sermonize, he should resign as prosecutor and pastor a church. In fact, he should resign anyway, or be forced out of office, before he mutates into a more consequential brand of career criminal, on the order of Alberto "Habeas Corpus isn't a fundamental right" Gonzalez, or John "Child Sexual Torture is a presidential prerogative" Yoo.

Before oozing his way into his current office, Thomas wrote extensively about his views of crime, punishment, and public order. He is one of those writers (I suspect I may be another) who confuse prolixity with profundity. The Phoenix New Times dipped a hand into the raging stream of Thomas's literary output and withdrew observations like the following:

*“The root of our crime problem is a rights-happy radical individualism.”

It makes much more sense to say that the root of crime is insufficient respect for the rights of others, but this view isn't easy to reconcile with what Thomas describes as his “Hobbesian view of government.”

Here's another:

* “All able-bodied men without a criminal record should once again be subject to obligatory service for community crime surveillance.... Their sole duty would be to inform police of crimes in progress. Women should not be subject to such conscription for the same reason that they have traditionally been spared combat duty.... Properly strong criminal penalties would deter those who might be tempted to dodge the draft [to serve in these neighborhood patrols] by committing a crime and acquiring a criminal record.”

What Thomas is describing here is hardly novel; it's a system akin to “block committees” set up in National Socialist Germany, as well as similar snitch-and-bully arrangements found in such enlightened societies as Castro's Cuba, Mao's China, Revolutionary Iran, and Saudi Arabia. What is somewhat original in Thomas's version is the idea of conscripting men into such service, on pain of severe criminal penalties should they rebel at the prospect of serving as neighborhood snitches.

In light of Thomas's truly perverse desire to lock up Matt Bandy for the rest of his life, it's worth wondering what "strong criminal penalties" he would prescribe for those who dodged his proposed "draft."

Questions of this sort aren't entirely academic. Thomas is probably fairly typical of the commissars coughed up by the neo-conservative legal culture. He's entirely of a piece with the Bu'ushists who are demolishing our Anglo-Saxon system of liberty under law, and there are doubtless thousands more like him gestating in the movement's womb even now.

Video bonus

As I've admitted elsewhere, I'm an incorrigible sci-fi geek. Among my favorite programs of the past decade was Star Trek: Deep Space Nine (the first reader to identify the connection between that program and the novel mentioned above gets ... well, an enthusiastic "Atta-boy!")

During the its last three seasons, DS9 featured a lengthy war between the Federation and a multi-layered enemy called The Dominion. At the top of The Dominion's power structure was a cunning race of devious shape-shifters called the Founders; their orders were carried out by a genetically engineered warrior race called the Jem'Hadar, who were controlled through their dependence on a narcotic called Ketrecel White.

The Dominion's intermediaries were drawn from a race of unctuous, officious bureaucrats called the Vorta; they control the Jem'Hadar, and defer slavishly to the Founders, whom they revere as "gods." I've come to think of them as a race composed entirely of amoral, vicious lawyers ... you know, people like Andrew Peyton Thomas.

In this clip, two Federation Good Guys -- the valiant Klingon Worf and Ezri Dax -- are offered a plea bargain by a Vorta "prosecutor" named Weyoun. I can't bring myself to disapprove of Worf's reaction.