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Diebold Whistle-Blower Charged With Felony Access

Posted by CmdrTaco on Mon Feb 27, 2006 11:12 AM
from the see-what-you-get-for-doing-good dept.
Government The Courts News Politics
Vicissidude writes "An employee of law firm Jones Day found legal memos showing that their client, Diebold Election Systems, had used uncertified voting systems in Alameda County elections beginning in 2002 - violating California election law. The whistle-blower turned over the memos to the Oakland Tribune, which published the legal memos on its website in April 2004. The company's AccuVote-TSx model was subsequently banned in May 2004. Now, the whistle-blower, Stephen Heller, has been charged in L.A. Superior Court with felony access to computer data, commercial burglary, and receiving stolen property. If convicted on all three counts, Heller could face up to three years and eight months in state prison. Blair Berk, Heller's attorney state, "Certainly, someone who saw those documents could have reasonably believed that thousands of voters were going to be potentially disenfranchised in upcoming elections." Sandi Gibbons, spokeswoman for the L.A. County district attorney's office rebuts, "He's accused of breaking the law... If we feel that the evidence shows beyond a reasonable doubt in our minds that a crime has been committed, it's our job as a criminal prosecutor to file a case.""
+ -
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  • And in other news, whistle-blower Charleton Heston has been charged with attempts to incite a riot as well as breaking and entering at a government food production facility. Although the production of their main product was found to use human beings as a source for protein and flavoring agents, Mr. Heston has been brought into custody.

    His public outcries of "Soylent Green is people!" led to a riot that left 4 people dead and many hospitalized in various conditions.

    "He did not have clearance to enter the facility. He broke the law, and that's that", said the prosecuting attorney while nibbling on a cube of Soylent Yellow.

    The NRA President faces up to 5 years in prison if convicted.

  • Legal Questions (Score:3, Insightful)

    by XorNand (517466) * on Monday February 27 2006, @11:13AM (#14808879)
    Most of what I know about the legal system I learned from watching Law & Order, so maybe a real lawyer can pipe in here: Would the whistle blower's work be protected from disclosure as attorney-client work product? But if the information he had was evidence of a continuing criminal conspiracy, wouldn't the attorney-client privledge be invalidated? BTW, the man (Stephen Heller) was not an employee (as started in the blurb), but a subcontractor. Does this change the legal questions?

    One thing that I don't need a JD to see is that the prosecutors have their work cut out for them in convincing a jury that this man deserves to go to prision. In fact, I wouldn't be surprised to see a politician who's up for reelection in November introduce and grandstand over some new legistlation that would have protected this guy.
    • Would his failure to act on his knowledge of alleged lawbreaking make him an accessory?

        • If I knew a big corporation like Diebold was doing something like this in the USA, and I wished to prevent it, I would go to the media, rather than the law. I might of course do both, but realistically, which is going to get results in any kind of timescale that is meaningful.

          What do you do? Call the local police? Lot of faith there. Begin procedings yourself? With what financial backing? Go to the government? At the speed they move and when there's a suspicion of complicity (not unreasonable with Diebo

    • IANAL either, but it seems to me that a law criminalizing the act of an employee revealing internal company documents makes sense, especially when this involved attorneys speculating on the legality of actions of their client. I mislike calling information "property" -- for the life of me I can't understand why this guy is being charged with theft -- but the I think the principle of this suit is sound and makes for good policy.

      Now, whistleblowing is good, but part of attorney-client privilege is that peo

      • I can't comment on CA, I work in WA, but there are some exceptions to confidentiality for WA state attorneys [wa.gov]. RPC 1.6(b)(1) allows breaking confidentiality to prevent a crime. Just to be clear, this is WA's rule and CA could be different.

        As this guy wasn't an attorney, and the Rules of Prof. Conduct exist to scare attorneys into good behavior, the prosecution is likely based on some law in a "computer tresspass" vein. Whatever -- the prosecutor needs to have his head examined. What a freakin' idiot.

        Th
          • Folk seem to be going down the wrong road here, the issue is not whether the Attorney has a right to keep his client's information confidential, it is whether there was a duty . That comes under much more general trade secret and client confidentiality laws.

            I am not a lawyer but I am pretty sure that CA law does not protect client confidentiality in cases where the client is planning an overtly criminal act. But that does not mean that disclosure to the press is necessarily protected.

            It seems somewhat u

    • The whistle-blower turned over the memos to the Oakland Tribune, which published the legal memos on its website in April 2004.

      If he'd been working with police on an investigation he might be in the clear. Turning it over to a newspaper could present a problem for him though.
      • To me it's amazing the Tribune printed anything about the case, since it seems to omit any reporting on crime in Oakland... But I've voted in Alameda county since 2001, and I have no faith any of my votes have ever been counted. The incompetence of the poll workers, combined with the easily hackability / uselessness of the machines (one year I could have voted twice, in the same kiosk, with the same 'smart card') is just stunning. Not to get too local, but does anyone from SF know who makes those voting sys

    • Jury Nullification (Score:4, Insightful)

      by C10H14N2 (640033) on Monday February 27 2006, @11:26AM (#14809008)
      It's a Good Thing.

      I'll never have to serve on a jury as I find it my civic duty to ask a question relevant to the case that forces the judge to explain that concept to those jurors who _are_ allowed to stay. The job of the jury is to ensure that _justice_ is done, not that the law is followed. If they determine that application of the law is itself unjust, they are absolutely 100% in their rights to find "not guilty," even if every single shred of evidence screams out otherwise.

      • Someday we will have a law holding jurors criminally responsible for their verdicts. Sometimes their verdicts are so outrageous. We can call it the "Protect America from Treasonous Juries Act". Any Congressman who votes against this should go to prison. :-)
                • Consider why we have juries, rather than just allowing a judge to make all the judgements. The jury is the final check in a system of checks and balances. If congress enacts an unjust law, the president passes it and the courts uphold it, but twelve average citizens won't convict based on it, then the law shouldn't stand. This is how our jury system originally worked, but things have changed and now juries are not allowed to judge the law itself, only the facts. Think about it, if only the facts are to be d
  • ...that he "found" these memos, does it actually mean that he broke the law to gain access to them in the first place?

  • Wow (Score:5, Insightful)

    by Ravenscall (12240) on Monday February 27 2006, @11:18AM (#14808925)
    If this is not summarily dismissed for the crock it is, Whistleblowing in this country will officially be dead, federal protections notwithstanding.

    Living here is becoming creepier and creepier, I think some of Katz's old paranoid ramblings here may not have been so paranoid.

    • Welcome to Dick Chenney's New America!

      Whistle blowing is still allowed if you are connected to the White house and you are outing a CIA agent for no good reason.

      Also, if you have the right connections you can shoot a man from 20 feet away and wait till you sober up the next day to talk to the police and tell them he was 90ft [infowars.com] away.

    • Re:Wow (Score:3, Insightful)

      by drinkypoo (153816)
      As they say in the excellent movie Strange Days, "It's not whether you're paranoid [Lenny], it's whether you're paranoid enough." It's not like I'm the first person to notice that something smells rotten in the white house and point it out to people, but people who were calling me paranoid and insane just a few years ago are coming around to my way of thinking... starting in the last few years. I was a paranoid little shit as a teenager and now I'm bigger, and still paranoid.

  • Is this really a crime? (Score:5, Insightful)

    by Ckwop (707653) * <Simon.Johnson@gmail.com> on Monday February 27 2006, @11:19AM (#14808930) Homepage

    "Certainly, someone who saw those documents could have reasonably believed that thousands of voters were going to be potentially disenfranchised in upcoming elections."

    So let me get this straight. His "crime" was the fact he alert people to the fact that the local elections were flawed due to the use of uncertified equipment? Is it their argument that because of this people might have disengaged from local politics and that hurts society and thus requires punishment? That's not just absurd, it's scarey.

    He's accused of breaking the law... If we feel that the evidence shows beyond a reasonable doubt in our minds that a crime has been committed, it's our job as a criminal prosecutor to file a case.

    No it is not. It is your job to prosecute if the following criteria are met:

    1. There is sufficient evidence against the person in question.
    2. It is in the public interest to prosecute.

    While the first criteria may well be true, the second one is not. As an aside, pne of the assignments that my brother was asked when he was studying for his law degree was to answer the following question: "Given the fact that Parliament can make any law it pleases, without being constrained by the decisions of previous Parliaments, would the courts uphold a law that sactioned the execution of every blue-eyed baby in the country."

    The answer is no. Technically, the court would be obliged to rule in favour of Parliament. This is because we do not have a written constitution that safeguards our rights [1]. However, the view is that the courts would never uphold this because of it's incredible abhorence.

    The point of the excercise is to demonstrate one thing to woodbie lawyers: "Just because it's the law does not make it right." Morality and law are seperate beasts. Lying to your wife is immoral but it not a crime. In this case he may have broken the law, but frankly I think that is price worth paying for the value of the information he gave us. What he did was a crime but it was not immoral and did not seek to undermine society.

    Simon

    [1] - This is becoming less and less true. While in terms of legal theory it is certain that Parliament is not constrained by the decisions of previous Parliaments, in practice this isn't true. There are some acts that would be pretty much impossible to repeal. The European Communities Act (ECA) is a prime example of this kind of legislation. While it's legally possible to repeal the act doing so would require leaving the European Union which will never happen.

    Thanks to the ECA, we are slowly acquiring a constitution. The Human Rights Act of 1998 was derived from the European Convention on Human Rights and was the first act of Parliament to acknowledge our fundamental rights in the positive. (i.e. Paraliment stating we have these rights explictly rather than simply failing to prohibit these actions).

    • So let me get this straight. His "crime" was the fact he alert people to the fact that the local elections were flawed due to the use of uncertified equipment? Is it their argument that because of this people might have disengaged from local politics and that hurts society and thus requires punishment? That's not just absurd, it's scarey.

      No, he's accused of illegally accessing confidential information from a computer. An analogous case might be if your neighbor suspected you of criminal activity and broke
    • "jury nullification" is for when the jury thinks the person on trial is getting a raw deal. The system's been rigged so that the judge won't instruct the jury members of their right to acquit even if they think the accused technically broke the law.

      Common Law only has two parts that've been discovered thus far:
      • Do all you have agreed to do (contract law)
      • Do not encroach on other people or their property (golden rule)

      Civil law is when someone says "there oughta be a law". Legislators make shit up, try to

    • I'm as much an opponent of rigged elections as anybody. But in your zeal to see black and white, you missed the point.

      It's not that alerting the citizenry that a voting machine is uncertified is bad, nor even that blowing the whistle is bad. This is not a simple case of retribution against a whistleblower.

      It's stealing documents that's bad. Violating attorney-client privilege is bad. Why, you ask?

      Even those accused of murder and child molestation have a right to a fair trial. In fact, the more heinous t
    • Yes, this really is a crime. The devil is in the details.

      This guy is an employee of a law firm whose client sent them confidential information. This guy then took it upon himself to violate attorney-client priviledge and turn the documents over to a newspaper.

      IMHO, this is nothing like some poor bugger who informs on his employer for dumping toxic waste.

  • Public Good? (Score:4, Insightful)

    by 1_brown_mouse (160511) on Monday February 27 2006, @11:19AM (#14808931)
    Is this lost in the political posturing of a grandstanding procecutor?

    How can one balance the voter fraud versus the revealing of "trade secrets?"

    More and more it is of the People, for the rich, by the ownership class.

    *mumbles about the revolution and walls*
  • The whistle-blower turned over the memos to the Oakland Tribune

    There's something seriously fucked with our public trust in this country. Why would this guy take this stuff to the media instead of the appropriate government authorities? Shouldn't he at least have tried to go through official channels first? It's not like the 'media' option would have gone away had those attempts failed.

    There are plenty of ways he could have accomplished all the same things without breaking the law.

  • Justice American-style (Score:5, Insightful)

    by Billosaur (927319) * <`wgrother' `at' `optonline.net'> on Monday February 27 2006, @11:22AM (#14808969) Journal
    The charges arise from Heller's alleged disclosure two years ago of legal papers from the Los Angeles office of international law firm Jones Day, which represented Diebold at the time. Heller was under contract as a word processor at Jones Day.

    The documents included legal memos from one Jones Day attorney to another regarding allegations by activists that Diebold had used uncertified voting systems in Alameda County elections beginning in 2002.

    And so, once more, the American public has been saved from a shameful case of fraud by its justice system, ensuring that decent, law-abiding citizens everywhere will fear for their lives if they point out that the Emperor has no clothes.

    Was what he did wrong? By the law, yes; by morality, no. If you know something bad is happening and you're in a position to do something about it, shouldn't you? Is that what the whole Enron trial is, pointing out that the people in the know not only didn't do anything about the destruction of the company, they helped it along. When was someone at Enron going to stand up and say, "hey guys, you're doing bad things."

    But that's just it. They had to pass laws to protect whistle-blowers in the first place, because once you did it, you had a bullseye painted squarely on your back. It was the only way to assure people that they could speak up about the wrongs they were seeing committed every day. And yet those protections do not go far enough as evidenced by this, where the old saw "no good deed goes unpunished" has apparently been made law of the land. All Ican say is, I hope this does not get pursued or there will be a freezinf effect that will allow big business to continue to steamroll people everywhere.

  • Lesson Learned (Score:4, Insightful)

    by LaCosaNostradamus (630659) <LaCosaNostradamus AT mail DOT com> on Monday February 27 2006, @11:23AM (#14808982) Journal
    Well, Heller is learning the modern lesson about corporations: if you cross them, they will slap (SLAPP [nolo.com]?) you down HARD. The harder you cross them, the harder they will slap you down. In this case, crossing a highly Republican corporation in a politically-charged topic, the victim is facing THREE FELONIES.

    Of course, if it were me, I'd go to prison with a big, shit-eating grin on my face. The corporations are trying to Rule the Earth, and so this is a war between normal citizens and the elite. In war, people get hurt; I accept that. Heller may be a necessary sacrifice. He can eat at my dinner table anytime, and he can always ask me for a job when he gets out of prison. I hope there are many citizens who feel the same way and will help him when he needs it.
      • The election-machine companies are frighteningly Republican. Of course, to be fair, they'll sell their easily-compromised election machines to anyone who wants to buy them.

        I mean, this is the fucker of the thing: corporations who market election systems are serving ONE type of client only. That client is the highly partisan board of elections in each electoral district. Highly partisan boards of course would want systems that they can perform vote fraud upon, as either more fraudulent votes in the fu
  • I can't imagine they* (the LA county DAs) would prosecute him just for leaking the fact that the machines were uncertified. They listed the charges, but what actions did he take to get those charges?

    Is he being prosecuted for taking part in the use of illegal voting machines? Is he being prosecuted for leaking diebold source? It couldn't just be for telling people about the illegal voting machines.

    Something doesn't quite add up here, maybe we shouldn't be so quick to defend him. Why does the

  • Maybe we should put G. Washington on trial (Score:5, Insightful)

    by ip_freely_2000 (577249) on Monday February 27 2006, @11:24AM (#14808993)

    You read this and your blood runs cold. It makes you wonder what would happen to George Washington if he was attempting to break the colonies from Britain today.

    Sometimes government becomes so complacent, the people accepting of crap, that both need a good house cleaning.

    In any event, this country needs a reminder of what the founding fathers had in mind when they formed this country.

    It's all quite sad.
  • ...let's first kill the messenger.
  • Man that guy was bold for trying to show that Diebold was acting fraudulently.
    Send him directly to jail, that'll show him! Problem solved!
  • Die, Diebold!

    Seriously, though, I can see where the Attorney's office would be upset about someone taking legal memos from a law office. I mean, it wasn't a Diebold memo, TFA said it was a memo between two of Diebold's lawyers, and that is the property of the law office.

    On another note, it seems that with all the "errors", faulty machines and mysterious voting numbers, uncertified changes 1 week before the election, etc., I still personally go with my first statement.

  • Ah, yes (Score:3, Insightful)

    by typical (886006) on Monday February 27 2006, @11:36AM (#14809120) Journal
    When everyone is afraid to speak, there will be no dissenting voices.

  • The Problem is with the media (Score:4, Interesting)

    by stlhawkeye (868951) on Monday February 27 2006, @11:45AM (#14809204) Homepage Journal
    The "whistleblower" status is for people who know that something dirty and wrong is going on and turn over their evidence to internal agencies of the government to deal with it. A whistleblower takes his knowledge and does not go public with it. This guy mailed this stuff to the newspapers, that's why he's in trouble. Had he contacted any one of a dozen agencies to handle the complaint, he'd be in no legal trouble. The whisteblower law would protect him. THat's why all these "leakers" are landing in hot water. WE learned from Watergate that if you go public with something incriminating, you become a hero to the media. So now people leak all kinds of shit trying to be the next "Deep Throat." Well, that's not why we have whistleblower laws. The whistleblower law is to protect a consciencious objector to an unlawful government practice. In this case, a company working on the government dole breaking the law. If the guy wanted legal protection to busing Diebold on their shitball hardware, there's a legal recourse to do so. He didn't use it. He leaked to the goddam newspaper. That's exactly the opposite of what you're supposed to do. He's geetting what he deserves. Now, if only Diebold can be held to the same standard.

    • The "whistleblower" status is for people who know that something dirty and wrong is going on and turn over their evidence to internal agencies of the government to deal with it.

      This is wrong. Whistle-blowers status is to protect individuals who divulge information vital to the welfare of the people in which the people have an overriding interest. In many cases they are reporting on government corruption and cannot be expected to trust other elements of the government. It is important that they can provid

      • This is wrong. Whistle-blowers status is to protect individuals who divulge information vital to the welfare of the people in which the people have an overriding interest. In many cases they are reporting on government corruption and cannot be expected to trust other elements of the government. It is important that they can provide their information to law enforcement and the public via any channel, public or private.

        Go read the whistleblower statutes. You're incorrect. Insightful, but incorrect. behavi

        • Go read the whistleblower statutes. You're incorrect.

          Actually, I have read them both for this state and several others. I was speaking of the stated purpose of the whistle blower statutes, which I was paraphrasing. The details of the implementations may or may not actually do that, but the majority of them state that the purpose is to protect the interests of the people by offering protection for those who act in the interests of the people when that interest is in exposing government corruption, publi

    • Wrong! (Score:5, Insightful)

      by wytcld (179112) on Monday February 27 2006, @12:35PM (#14809723) Homepage
      A whistleblower is anyone who protects the public interest by releasing information of wrongdoing. In the case of California elections, the officials in charge of them have been arguably complicit in using uncertified as well as easily-hackable equipment. Reporting the problem quietly to them would be like going to the mob-associated mayor and telling him the proof you had about the city garbage contract - you'd be likely to find yourself amongst the garbage in the next truck. (Nor is there anyone on the federal level to report it to when it's a state law being violated.)

      Responsible whistle-blowing goes public. That's what it means: You're standing there blowing the whistle as loudly as you can to get attention to the wrongdoing. You're not finding some official to whisper quietly to about it.

    • Re:Just because you agree with him (Score:5, Insightful)

      by sammy baby (14909) on Monday February 27 2006, @11:34AM (#14809095) Journal
      Just because you agree with him... doesn't make his actions ok.


      Correct.

      (Warning: IANAL)

      Diebold was knowingly using uncertified software to operate their voting machines, in clear violation of both the law and their agreement with the state of California. At best, this is breach of contract: at worst, it could be considered felony vote tampering.

      Jones Day, a law firm which was advising Diebold and where the whistleblower was temping, sent several memos to their client about the subject. The memos appear to show that not only was the firm aware of the illegality of Diebold's actions, but was actively providing their client advice on how to evade detection, making them party to their illegal activities.

      Heller discovered the documents, which he believed provided evidence that both companies had conspired to defraud the state of California. Days after their exposure, the state decertified the Diebold machines. The lawsuit which followed cost Diebold $2.6 million to settle out of court.

      This isn't about upholding the law. This is about putting the fear of god into future whistleblowers when they dare to cross paths with a powerful corporation.

      And that's what makes Heller's actions okay.
    • doesn't make his actions ok.

      If it is not, then let us make it OK! In this case particularly, he should not be alone. He definitely has balls to be a whistle blower (either that or he is an idiot to get himself in trouble). Regardless, if we leave him alone and let him fight this battle alone, Americans should be ashamed of themselves. You do realize that if this doesn't make news, eventually your vote really doesn't amount to any thing when every election is managed or upstaged by Diebold. This is not abou

      • If you commit a crime to prevent a much bigger and reprehensible crime...the law should help you there....isn't that logical ?!

        In other cases there is no consideration for things like this....for example if someone breaks into your house and becomes injured going up the stairs, you are liable for his injuries because you neglected to fix that broken bannister he was using. Or if you set something up to trap burglars in your basement while you were on vacation and is forced to eat outdated food in your r
    • This is the same situation with the leak about Bush's illegal wiretaps. The administration's response: "We'll launch an investigation to find out who's compromising national security by blowing the whistle on our [illegal] wiretap program." It's just shameless what the government does nowadays.

    • Re:Don't blame the DA (Score:5, Insightful)

      by MillionthMonkey (240664) on Monday February 27 2006, @12:33PM (#14809697)
      You don't understand the notion of representation by an attorney. A DA is not expected to be an unthinking automaton like Inspector Javert- he represents the state and among his duties is consideration of the interests of the state when charging people, for which he has to be given discretion. Consider this recent story from Utah [jacksonholestartrib.com] where a part-time judge (and part-time truck driver) was thrown off the bench for having three wives:
      Utah Attorney General Mark Shurtleff praised the court's decision, saying someone breaking the law should not be in a judicial role. Shurtleff had declined to prosecute Steed.
      He said his office intends to stick to its policy of only prosecuting bigamy cases that involve other crimes such as domestic violence or sex with minors.
      "If you charge one where do you stop? You start prosecuting 10,000 people and have 20,000 kids go into the (child welfare) system?" Shurtleff said.
      If district attorneys behaved as you think they should, mindlessly prosecuting every violation of statute with no discretion allowable, it would not serve the state's interests at all. Not only would it have to build more prisons than it can afford, it would quickly run out of district attorneys- in fact it would run out of courts! Real criminals would be roaming the streets while prisons would fill with technical violators. As its legal representative the DA has a duty to take all of the state's interests into account. Prosecuting violations of statute is one of them- but not the only one.

    • You are fully familiar with cases concerning OJ Simpson and Michael Jackson aren't you, dear reader?

      Yeah, I'm familiar with how one guy was acquitted because the case against him was horribly mismanaged and distorted by clearly corrupt police, and I'm familiar with how the other guy was acquitted because the evidence against him basically amounted to 'look at him, he's weird'.

      Not every trial _has_ to end in a conviction. The idea is to find _whether_ it can be _proved_ that the defendant is guilty.

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