From the archive, originally posted by: [ spectre ]

http://www.insidebayarea.com/oaklandtribune/ci_3597037

http://www.hellerlegaldefensefund.com/
http://www.eff.org/
http://www.BlackBoxVoting.org

Diebold software leak makes whistle-blower a folk hero to activists

One night early in 2004, a few weeks before the presidential primary, a
Van Nuys actor making ends meet temping as a word processor listened on
headphones as a young lawyer laid out a defense for Diebold Election
Systems Inc.’s use of unapproved voting software in Alameda County.

Sitting at a computer terminal on the 45th floor of a Los Angeles
skyscraper, Steve Heller transcribed the lawyer’s taped memo suggesting
that Diebold could claim the software was a new, “experimental” voting
system, even though it had handled two Alameda County elections in
2003.

Heller led a quiet life in the San Fernando Valley with his wife, dog
and an occasional supporting role in film, TV or commercials, usually
cast as someone’s neighbor or dad, which is what he looks like. He was
an “experienced and competent” word processor but no “heavyweight” in
the eyes of his night-shift supervisor, who doubted Heller knew his
computer commands were recorded.

Heller is a self-confessed “news junkie.” In an interview, he declined
to talk about the case but said, “I would not describe myself at all as
an activist” on electronic voting or anything else.

Yet the night after hearing the Diebold defense proposal, according to
investigators who recreated his actions from computer logs, Heller went
back to work inside the word processing center at the law firm Jones
Day and began printing every document he could access that its
attorneys had created for Diebold – 107 memos, charts, actions plans
and e-mails.

One memo warned that Die-bold could be prosecuted for illegally
handling votes on Election Day. In a draft letter, Jones Day attorneys
studiously avoided telling California elections officials of Diebold
changes in a voting system component that ended up failing in
presidential elections. In one e-mail, Jones Day advised Diebold of the
need for sweeping civil and criminal defenses, billed at up to $450,000
a month.

In a meeting in a Ventura County park, the documents landed in the
hands of Diebold’s most vociferous critics at BlackBoxVoting.org. From
there, some were faxed to a documentary filmmaker for attempted
hand-delivery to then-California Secretary of State Kevin Shelley in
Manhattan.

The Oakland Tribune reported on the memos, and almost overnight they
appeared on Web sites from Washington to California to New Zealand,
then elsewhere. Two weeks later, Shelley withdrew his earlier approval
of Diebold’s flagship touchscreen voting system, calling the firm’s
behavior “fraudulent” and “despicable.” It took more than two years and
numerous improvements before Diebold again could sell its
electronic-voting products in California.

Heller himself remained largely unknown until two weeks ago when the
Los Angeles District Attorney’s Office charged him with a computer
crime, second-degree burglary and receiving stolen goods – offenses
carrying up to four years in prison – and propelled him to folk hero
status among voting reform advocates, computer scientists and critics
of electronic voting.

The case poses the value of whistleblowing about an industry that
zealously guards its secrets and counts the nation’s vote against a
bedrock principle of the legal profession, the sanctity of
confidentiality that allows clients to share their troubles with their
lawyer.

Publication of Jones Day’s confidential Diebold work, firm lawyers told
investigators, was “a grievous violation” that damaged a top 25 client
worth millions of dollars a year in billings.

The Electronic Frontier Foundation and some leaders of the Association
of Computer Machinists, the nation’s oldest group of computer engineers
and scientists, are seeking pro-bono defense for Heller.

“He found evidence that the problems that people were complaining
about, and that Diebold was belittling, were real and that Diebold was
skirting the rules,” said EFF legal director Cindy Cohn.

“I think people are really heartsick,” she said. “This is a guy who the
people of California should be thanking and yet he’s facing litigation
titled ‘People vs. Heller.'”

Protest e-mails and phone calls have been pouring into the offices of
the Los Angeles district attorney, most of them from outside
California.

Bev Harris, founder of BlackBoxVoting.org, set up a legal defense fund
for Heller, starting with $10,000 of $76,000 that she and colleague Jim
March received from Diebold as part of a $2.5 million settlement of a
lawsuit alleging the firm used false claims to get its machines
approved and sold in California.

Harris told investigators that she met Heller in a Ventura County park
and was handed 500 pages of documents. She told this newspaper that she
was asked to “get them to the right place.”

“He’s really one of the purest whistleblowers I’ve ever met. He’s never
one of the people who looked for any attention or any gain in any way.
His only concern was for protection of voters and the vote,” Harris
said.

Heller is being prosecuted for offenses similar to those that the
California State Bar tried in 2002 to exempt from its own ethics rules,
at least for government attorneys. The state Legislature also approved
a similar whistleblower measure that year for government attorneys.

Both bodies approved measures freeing government lawyers to report
“serious misconduct” if unaddressed in their own organizations.

“This rule, we think, is the best possible rule,” said State Bar
governor Ann Ravel of San Jose. The amendment “will be helpful to
public lawyers.”

But the Supreme Court found the new rule conflicted with state statute
and rejected it, and then-Gov. Gray Davis vetoed the Legislature’s
change to the statute.

“While this bill is well intended, it chips away at the attorney-client
relationship which is intended to foster candor between an attorney and
client,” Davis said in his veto message. “The effective operation of
our legal system depends on the fundamental duty of confidentiality
owed by lawyers to their clients.”

Jones Day lawyers in charge of the internal investigation identified
Heller as their chief suspect and pressed the district attorney’s
office for prosecution, beginning in July 2004.

John Majoris, a Jones Day partner in Washington who manages the firm
relationship with Diebold, told investigators that Diebold was a
“pillar client,” ranking in the top 25, often top 10 for billings,
amounting to “millions of dollars each year for legal services.”

“Jones Day was fearful that Diebold was going to fire Jones Day due to
the compromise of the documents,” a D.A.’s investigator wrote in
summarizing his interview with Majoris. “This will cost Jones Day more
than $1,000,000 in fees refunded to Diebold.”

Daniel McMillan, a Jones Day partner who led the Diebold casework in
California, told investigators the impact of the compromise of the
documents was “devastating” and a “grievous violation” of
attorney-client confidentiality.

“He now has a hard time trusting others at working, including both
contractors and other Jones Day employees,” the investigator wrote.
“McMillan’s 20-year legal career is in jeopardy due to the act of the
criminal who was working at Jones Day.”

Attorneys for the California Attorney General’s Office and the
Secretary of State said the documents did not influence their actions
regarding Diebold, nor did they see Jones Day’s conduct as unethical.

California has some of the strongest whistleblower laws in the nation,
but none apply to criminal acts.

A whistleblowing defense boils down to an argument of necessity – one
had no choice but to commit the crime – and “it rarely works as a
defense,” said Laurie Levenson, a former prosecutor who teaches
criminal law and legal ethics at Loyola Law School in Los Angeles.

“He may have the best motivations but that’s not necessarily an excuse
to violate the law,” Levenson said. “This is really called stealing.
Even when people have a good motive, it can still be a crime.”

Attorney-client confidentiality is considered sacrosanct and can be
broken only when a lawyer believes the disclosure would prevent a
violent crime, according to Stephen Bundy, who teaches legal ethics at
Berkeley’s Boalt Hall School of Law.

“The employee, if they’re properly contracted, would have the same
obligations,” Bundy said.

The evidence gathered by the district attorney’s investigators includes
a copy of Jones Day’s confidentiality agreement, signed by Heller on
Feb. 11, 2004. By then, it appears, Heller had been working in the
firm’s offices, handling its documents, for more than five weeks.
Computer logs say someone working his hours at his terminal printed
documents two more times before Heller left Jones Day.

“Here there was whistleblowing on the client, and since he’s an
employee, he takes on the obligations of the lawyer,” said University
of San Diego legal ethics professor Fred Zacharias, an expert on
attorney-client confidentiality rules in California. “You can see why
the rules have to be that way because otherwise lawyers have to operate
without support staff. The moment you get into disclosing clients’
secrets you get into problems, then your rights are limited, just like
the lawyer’s.”

Heller’s case could ride on jury nullification – on finding at least
one like-minded juror willing to set aside the law.

“It may help him in terms of jury sympathy if he can get this in front
of a jury,” said Loyola’s Levenson, “because sometimes jurors decide
they like a defendant more than they like the law or the victims.”

At dawn Friday the 13th of August 2004, Heller and his wife Michele
awoke to someone pounding on the front of his house and ringing the
bell. Ten police officers and investigators confronted him with shouted
demands for a search.

“I couldn’t believe it. I thought it must be a mistake,” he said. “I
kept thinking they had the wrong house, that they were after someone
else … It was just very frightening, it was so surreal.”

The agents seized his address book listing Bev Harris as a contact. His
computer contained bookmarks to voting Web sites, as well as the
document postings, plus a letter about electronic voting and an e-mail
that they said “boasted” of taking the documents.

Heller declined to answer the agents’ questions and hired Blair Berk, a
Harvard-trained defense lawyer. He was fired from the temp agency.
Legal fees exhausted the couple’s personal savings, and they took out a
second mortgage.

“I have a lot of confidence that ultimately I’ll be given a chance to
defend myself. I just hope I’ll be able to do that without losing my
house,” he said. “It’s strange to be under this scrutiny from
authorities and other people who are interested. It’s uncomfortable. I
just want to book some (acting) work now and then, go to my day job and
have my little life with my wife and dog.”

“For what he’s alleged to have done, there was nothing in it for him,”
filmmaker and friend Peter Soby Jr. wrote last week on Huffington Post.
“No financial gain (in fact a serious financial loss, because he got
fired from his job, and he’s had to pay 10s of thousands of dollars to
his lawyers, and owes them 10s of thousands more). And he’s now at risk
of over 3 years in state prison. It’s insane.”

Officials at the district attorney’s office say Heller has no criminal
record and probably would get probation if convicted. But he would lose
his right to vote.

{Contact Ian Hoffman at ihoffman [at] angnewspapers [dot] com [dot]}