Monday, April 24, 2006
Jones Day papers focus of theft case
Diebold information leaked to writer
Alison Grant
Plain Dealer Reporter
A criminal case involving Cleveland law firm Jones Day,
Summit County voting machine maker Diebold Inc. and an
obscure, part-time Hollywood actor is expected to unfold in a
Los Angeles courtroom today.
The actor, Stephen Heller, has been charged with felony theft
of confidential records from a Jones Day office where he was
temping in 2004.
Heller is alleged to have given the records to an investigative
writer who had just published a book saying Diebold had
installed uncertified voting systems in California. A copy of
the records landed in the hands of an Oakland Tribune
reporter who used them to report embarrassing details about
Diebold's hasty use of uncertified software with its machines.
The prosecution of Heller has raised eyebrows because it is
unusual to bring criminal charges in a case like this. Critics
say Heller qualifies as a whistleblower who should be
protected. Jones Day scoffs at that, saying Heller stole its
legal papers and moreover broke a confidentiality pledge he
signed when he started at the law firm. The firm also says it's
important to defend attorney-client privilege, which it says
Heller violated.
However, the case, which the district attorney's office says
has already cost Jones Day more than $1 million in damages,
also stirs up fresh negative publicity for the giant law firm.
Heller, who did not return calls, is on record in newspaper
accounts as saying he's not a political activist. But he
describes himself as a news junkie, and Diebold's name was
familiar to him because of media focus on the company as it
brought touch-screen voting to California.
Diebold Elections Systems, the Texas subsidiary of Green,
Ohio-based Diebold Inc., referred questions on Heller's case
to Jones Day.
The Los Angeles County district attorney's office says that on
five days over a three-week period in early 2004, Heller copied
more than 500 pages of Diebold-related documents. Some
were stamped "attorney work product, privileged and
confidential." One was an estimated Jones Day budget of
$535,000 to $925,000 for two months of Diebold work.
Prosecutors say Heller met Bev Harris, founder of the
elections watchdog group Black Box Voting, in a Ventura
County park and gave her the records. Harris allegedly gave
them to a third person, who in turn gave them to California's
then-Secretary of State Kevin Shelley. However, no one at
that office or the attorney general's office recalls receiving
the papers, a spokeswoman for the district attorney's office
said.
Harris had earlier become a plaintiff in a lawsuit that charged
Diebold with making false claims about the security and
certification of its voting systems in Alameda County, Calif.
The Oakland Tribune reported that Jones Day had warned
Diebold in late 2003 about using uncertified software. The
news story said Jones Day knew Diebold faced the threat of
criminal charges and banishment from California elections.
Although the state never charged Diebold criminally, Heller's
defenders say the information he uncovered helped trigger
an administrative crackdown on Diebold.
Diebold was already under the microscope in California
because many of its e-voting systems failed in the March 2004
primary.
Shelley, the secretary of state, called Diebold's conduct in
aggressively marketing e-voting equipment "deceitful" and
"reprehensible," banning it in several counties.
The state also joined the lawsuit brought by Harris and other
activists. Diebold eventually paid $2.6 million to settle it.
As a new secretary of state reversed California's Diebold ban
this year and gave conditional approval to its machines, Heller
was about to get hit by the fallout from his three-month stint at
Jones Day.
The 44-year-old actor from Van Nuys, Calif., learned in August
2004 that he was under investigation when police officers
showed up at his house with a search warrant and seized his
computer and various papers.
But it was not until February 2006 that the DA's office charged
Heller with felony access to computer data, commercial
burglary and receiving stolen property. He pleaded not guilty.
Heller could face up to three years in prison if convicted.
His supporters say he should be praised for shedding light on
irregularities at Diebold, not charged with theft.
That question - thief or whistleblower? - is central to the case
that begins today at a preliminary hearing. Blair Berk, a Los
Angeles defense attorney who counts Halle Berry and Reese
Witherspoon among her clients, represents Heller.
Berk said Heller's case "will necessarily involve the act of
whistleblowing on a multiplicity of levels."
Michael Kohn, general counsel for the National Whistleblower
Center, sees Heller as a "quintessential whistleblower" in the
vein of Daniel Ellsberg, who released the classified Pentagon
Papers to The New York Times in 1971. The Times' publication
of lengthy excerpts shed damaging light on the U.S. military's
execution of the Vietnam War.
"This is a very rare instance," Kohn said of the Heller case, "in
fact the only one of which I'm aware, in which a whistleblower
has been charged with a felony. I find it outrageous."
Jones Day rejects casting Heller as a virtuous figure and
whistleblower.
"That's a ludicrous defense," said John Majoras, a partner in
Washington. "This is a person who stole documents. He
purposely released them to someone who had an agenda
against [Diebold]."
Jones Day said there's no cause-and-effect, either, between
the published memos and California's sanctions against
Diebold in 2004.
Majoras noted that state employees interviewed by a district
attorney's investigator said the Jones Day records played no
role in the state's examination of Diebold.
Earlier, Jones Day had tried to squelch use of the memos by
the Oakland Tribune. The firm sued to get the records back
and impose a ban on future stories based on them.
Jones Day dropped that effort when the newspaper argued
that would be illegal "prior restraint." Jones Day later stopped
trying to retrieve the documents, too, saying it was pointless
since the information was already out.
Now the Tribune is suing Jones Day for legal fees it incurred
in the fight.
No one is suggesting that Heller got any money or other
material benefit for his alleged deed. But Majoras said his
actions smack of politics.
"If you review the Black Box Web site, you'll see there's a
great deal of effort to disparage either electronic voting in
general or Diebold in particular," Majoras said. "It certainly
implies to me that there was an agenda."
Heller also violated the attorney-client privilege, Majoras said.
The privilege protects communications between clients and
their attorneys. Legal assistants working on confidential
client matters can be held to the privilege.
The DA's office said Jones Day reported more than $1 million
in damages, including fees it had to refund to Diebold.
Majoras would not confirm the amount but said, "We certainly,
as a result of this, had to reach accommodations with our
client, who was upset about it."
Heller has become a cause celebre to electronic-voting
critics, who say he helped prevent voters from being
disenfranchised in California. Black Box Voting has
contributed $10,000 to his legal defense fund.
Heller's case is showing up on liberal blogs like Daily Kos and
The Huffington Post, where political activist Lyn Davis Lear,
the wife of television producer Norman Lear, argued that
Heller deserved "a medal of gratitude instead of jail."
As for Heller, he and his wife have covered his legal bills with
personal savings and a second mortgage on their home. He
was fired from two jobs when employers learned of his
criminal case and is, according to his lawyer, "desperately
looking for work."
Jones Day papers focus of theft case
Diebold information leaked to writer
Alison Grant
Plain Dealer Reporter
A criminal case involving Cleveland law firm Jones Day,
Summit County voting machine maker Diebold Inc. and an
obscure, part-time Hollywood actor is expected to unfold in a
Los Angeles courtroom today.
The actor, Stephen Heller, has been charged with felony theft
of confidential records from a Jones Day office where he was
temping in 2004.
Heller is alleged to have given the records to an investigative
writer who had just published a book saying Diebold had
installed uncertified voting systems in California. A copy of
the records landed in the hands of an Oakland Tribune
reporter who used them to report embarrassing details about
Diebold's hasty use of uncertified software with its machines.
The prosecution of Heller has raised eyebrows because it is
unusual to bring criminal charges in a case like this. Critics
say Heller qualifies as a whistleblower who should be
protected. Jones Day scoffs at that, saying Heller stole its
legal papers and moreover broke a confidentiality pledge he
signed when he started at the law firm. The firm also says it's
important to defend attorney-client privilege, which it says
Heller violated.
However, the case, which the district attorney's office says
has already cost Jones Day more than $1 million in damages,
also stirs up fresh negative publicity for the giant law firm.
Heller, who did not return calls, is on record in newspaper
accounts as saying he's not a political activist. But he
describes himself as a news junkie, and Diebold's name was
familiar to him because of media focus on the company as it
brought touch-screen voting to California.
Diebold Elections Systems, the Texas subsidiary of Green,
Ohio-based Diebold Inc., referred questions on Heller's case
to Jones Day.
The Los Angeles County district attorney's office says that on
five days over a three-week period in early 2004, Heller copied
more than 500 pages of Diebold-related documents. Some
were stamped "attorney work product, privileged and
confidential." One was an estimated Jones Day budget of
$535,000 to $925,000 for two months of Diebold work.
Prosecutors say Heller met Bev Harris, founder of the
elections watchdog group Black Box Voting, in a Ventura
County park and gave her the records. Harris allegedly gave
them to a third person, who in turn gave them to California's
then-Secretary of State Kevin Shelley. However, no one at
that office or the attorney general's office recalls receiving
the papers, a spokeswoman for the district attorney's office
said.
Harris had earlier become a plaintiff in a lawsuit that charged
Diebold with making false claims about the security and
certification of its voting systems in Alameda County, Calif.
The Oakland Tribune reported that Jones Day had warned
Diebold in late 2003 about using uncertified software. The
news story said Jones Day knew Diebold faced the threat of
criminal charges and banishment from California elections.
Although the state never charged Diebold criminally, Heller's
defenders say the information he uncovered helped trigger
an administrative crackdown on Diebold.
Diebold was already under the microscope in California
because many of its e-voting systems failed in the March 2004
primary.
Shelley, the secretary of state, called Diebold's conduct in
aggressively marketing e-voting equipment "deceitful" and
"reprehensible," banning it in several counties.
The state also joined the lawsuit brought by Harris and other
activists. Diebold eventually paid $2.6 million to settle it.
As a new secretary of state reversed California's Diebold ban
this year and gave conditional approval to its machines, Heller
was about to get hit by the fallout from his three-month stint at
Jones Day.
The 44-year-old actor from Van Nuys, Calif., learned in August
2004 that he was under investigation when police officers
showed up at his house with a search warrant and seized his
computer and various papers.
But it was not until February 2006 that the DA's office charged
Heller with felony access to computer data, commercial
burglary and receiving stolen property. He pleaded not guilty.
Heller could face up to three years in prison if convicted.
His supporters say he should be praised for shedding light on
irregularities at Diebold, not charged with theft.
That question - thief or whistleblower? - is central to the case
that begins today at a preliminary hearing. Blair Berk, a Los
Angeles defense attorney who counts Halle Berry and Reese
Witherspoon among her clients, represents Heller.
Berk said Heller's case "will necessarily involve the act of
whistleblowing on a multiplicity of levels."
Michael Kohn, general counsel for the National Whistleblower
Center, sees Heller as a "quintessential whistleblower" in the
vein of Daniel Ellsberg, who released the classified Pentagon
Papers to The New York Times in 1971. The Times' publication
of lengthy excerpts shed damaging light on the U.S. military's
execution of the Vietnam War.
"This is a very rare instance," Kohn said of the Heller case, "in
fact the only one of which I'm aware, in which a whistleblower
has been charged with a felony. I find it outrageous."
Jones Day rejects casting Heller as a virtuous figure and
whistleblower.
"That's a ludicrous defense," said John Majoras, a partner in
Washington. "This is a person who stole documents. He
purposely released them to someone who had an agenda
against [Diebold]."
Jones Day said there's no cause-and-effect, either, between
the published memos and California's sanctions against
Diebold in 2004.
Majoras noted that state employees interviewed by a district
attorney's investigator said the Jones Day records played no
role in the state's examination of Diebold.
Earlier, Jones Day had tried to squelch use of the memos by
the Oakland Tribune. The firm sued to get the records back
and impose a ban on future stories based on them.
Jones Day dropped that effort when the newspaper argued
that would be illegal "prior restraint." Jones Day later stopped
trying to retrieve the documents, too, saying it was pointless
since the information was already out.
Now the Tribune is suing Jones Day for legal fees it incurred
in the fight.
No one is suggesting that Heller got any money or other
material benefit for his alleged deed. But Majoras said his
actions smack of politics.
"If you review the Black Box Web site, you'll see there's a
great deal of effort to disparage either electronic voting in
general or Diebold in particular," Majoras said. "It certainly
implies to me that there was an agenda."
Heller also violated the attorney-client privilege, Majoras said.
The privilege protects communications between clients and
their attorneys. Legal assistants working on confidential
client matters can be held to the privilege.
The DA's office said Jones Day reported more than $1 million
in damages, including fees it had to refund to Diebold.
Majoras would not confirm the amount but said, "We certainly,
as a result of this, had to reach accommodations with our
client, who was upset about it."
Heller has become a cause celebre to electronic-voting
critics, who say he helped prevent voters from being
disenfranchised in California. Black Box Voting has
contributed $10,000 to his legal defense fund.
Heller's case is showing up on liberal blogs like Daily Kos and
The Huffington Post, where political activist Lyn Davis Lear,
the wife of television producer Norman Lear, argued that
Heller deserved "a medal of gratitude instead of jail."
As for Heller, he and his wife have covered his legal bills with
personal savings and a second mortgage on their home. He
was fired from two jobs when employers learned of his
criminal case and is, according to his lawyer, "desperately
looking for work."
| April 24, 2006 Cleveland Plain Dealer |
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