Monday, February 27, 2006
A word processor accused of stealing damaging documents about electronic voting machine manufacturer Diebold Election Systems was arraigned Tuesday on three felony counts.
Stephen Heller was charged in Los Angeles Superior Court with felony access to computer data, commercial burglary and receiving stolen property. He pleaded not guilty.
"It's a devastating allegation for a whistle-blower," said Blair Berk, Heller's attorney. "Certainly, someone who saw those documents could have reasonably believed that thousands of voters were going to be potentially disenfranchised in upcoming elections."
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.
In the memos, a Jones Day attorney opined that using uncertified voting systems violated California election law and that if Diebold had employed an uncertified system, Alameda County could sue the company for breaching its $12.7-million contract.
The documents also revealed that Diebold's attorneys were exploring whether the California secretary of state had the authority to investigate the company for alleged election law violations.
The Oakland Tribune published the legal memos on its website in April 2004. By then, the issue of whether Diebold used uncertified systems was already receiving widespread attention, because many of its systems failed during the March 2004 primary. As a result, poll workers had to turn away some early voters in San Diego County, and Alameda County voters had to use paper ballots.
A subsequent report by the secretary of state's office found that Diebold had marketed and sold its systems before gaining federal qualification and had installed uncertified software on election machines in 17 counties.
The company's AccuVote-TSx model was banned in May 2004, but Diebold machines were conditionally recertified by Secretary of State Bruce McPherson last week for use in 17 counties for this year's elections.
McPherson ordered Diebold to make long-term programming changes and submit the modifications to a federal panel for recertification.
The conditional recertification follows a turbulent history for Diebold's electronic voting systems.
In November 2004, the company settled a civil lawsuit brought by two activists and later joined by the state attorney general after he dropped his criminal investigation of the company.
Diebold paid $2.6 million to settle the suit, which alleged that the company had sold its touch-screen voting systems to Alameda County through misrepresentations about their security and certification.
One of the activists, Jim March, said he was the person who actually turned over the allegedly stolen documents to the Oakland Tribune and the state attorney general's and secretary of state's offices.
Sandi Gibbons, spokeswoman for the Los Angeles County district attorney's office, refused to call Heller a "whistle-blower."
"We call him a defendant," she said. "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."
Although state law protects whistle-blowers from retaliation by their employers, they can still be criminally prosecuted, said Tom Devine, legal director at the Washington, D.C.-based Government Accountability Project.
"It's very rare that it's successful," he said. "It's a tactic where the primary goal may be to scare other would-be whistle-blowers rather than a realistic attempt to obtain a conviction."
Heller's preliminary hearing date will be set at a trial conference April 24.
If convicted on all three counts, he could face up to three years and eight months in state prison, Gibbons said.