April 21, 2006
WHISTLE-BLOWER PROTECTION DEPENDS ON
WHO HEARS WHISTLE
By Tamadhur Al-Aqeel, Daily Journal Staff Writer
Stephen Heller, a temporary worker for Jones Day in Los
Angeles, was alarmed by what he heard on an audiotape he
was assigned to transcribe for a lawyer.
On the tape, attorney Scott Shaw is heard describing how the
firm's client, Diebold Election Systems, violated a $12 million
contract with the state of California by changing the software
in its voting machines. On the tape, Shaw explains how the
firm would defend the company if Secretary of State Kevin
Shelley discovered the software switch.
After transcribing the tape into a memorandum, Heller, an out-
of-work actor, began searching Jones Day's computer
archives, downloading and printing anything he found about
Diebold - roughly 500 pages - over the next four days in
January 2004.
Three months later, in the March 2004 presidential primary,
Diebold's voting machines in Alameda County failed. Voters
were given paper ballots. San Diego County didn't have a
back-up plan when their Diebold machines failed that day. An
estimated 40,000 people were unable to vote.
In April, a month after the election called into question
Diebold's voting machines, four of the Jones Day memos
were posted on the Oakland Tribune's Web site. Heller had
given them to a voting-rights activist who gave them to a
reporter.
Now, two years later, Los Angeles District Attorney Steve
Cooley has charged Heller with three felonies: unlawful
access to computer files, commercial burglary, and receiving
stolen property. A judge is expected Monday to set a
preliminary hearing date in Heller's case.
Heller's supporters say he should not be prosecuted, that he
should be protected under whistle-blower law because he
made public information of interest to all California voters.
The district attorney's office maintains that whistle-blower
status does not apply when a person violates attorney-client
privilege.
"There is a way if a person wants to provide information of
misconduct to authorities," district attorney spokeswoman
Sandi Gibbons said, "[but] it doesn't protect them from
attorney-client privilege violations."
Michael Kohn, general counsel of the National Whistleblower
Center in Wasington, D.C., said Heller was just following in
the steps of other courageous whistle-blowers. Exposing
wrongdoing to a government agency is not required.
"The press is perfectly acceptable," Kohn said. The
"grandfather of all whistle-blowers," Daniel Ellsberg, gave the
"Pentagon Papers" to the New York Times, Kohn said.
Charges against Ellsberg, who stole the documents from
Santa Monica-based Rand Corp., where he worked, were
eventually dropped.
The 1990s case of Dr. Jeffrey Wigand has many similarities to
Heller's case. Wigand revealed to the television news
magazine "60 Minutes" evidence the tobacco industry
manipulated nicotine levels in cigarettes to make them more
addictive. Wigand decided to become a whistle-blower after
looking at documents smuggled out of law firm Wyatt, Tarrant
& Coombs, which represented tobacco company Brown &
Williamson. The documents were given to him by a
concerned paralegal, Merrell Williams. In June 1994, the New
York Times ran long articles based on thousands of
documents taken from Brown & Williamson's lawyers.
Furthermore, UC San Francisco medical professor Stanton
Glantz put the documents on the Internet.
Both federal and state whistle-blower statues protect an
employee or former employee from retaliation, legal or
otherwise. The laws, however, leave prosecutorial discretion
to law enforcement agencies.
In the Wigand case, Brown & Williamson hired a public
relations firm to pitch news stories that called into question
Wigand's credibility. Wigand sued the tobacco company and
won.
When the Diebold memos were made public, Jones Day
launched an internal investigation of the firm's word
processing department to find the person responsible for
leaking sensitive internal documents. A trail of computer
access codes, building pass keys, and the word processing
department's own computer serial number tracking system
led them to Heller. In a detailed letter to Los Angles police
detectives Juan Martinez and Brian Collins, Jones Day
partner Brian O'Neill outlined the firm's investigative methods
and findings. "During our meeting you raised a question of
whether copying documents from a computer system such as
the Jones Day system would comprise a violation of [the state
Penal Code]. Clearly such conduct would violate the statue,"
O'Neill wrote.
"What we've done here is how you would expect a victim of a
crime would react," said Jones Day attorney John Majoras,
who brought client Diebold to the firm.
Gibbons said Heller is a thief. To qualify as a whistle- blower,
Heller would have had to give the documents to the Los
Angeles Police Department or some other government
agency, she said.
"But it doesn't make any difference," Gibbons said. "He's not
charged with what he did with the documents. He's charged
with taking them."
"That makes no sense," Kohn said. "Saying if he turned them
over to government he would have been protected - there's
no law that provides for that."
Whether the documents were turned over to the government
or to the press, the same "crime" was committed, Kohn said.
The important part is "the fact that he turned them over with
no self- interest. [The district attorney] should refuse to
prosecute. They should be protecting someone who shed
light on crime."
Gillian Lester, a visiting law professor at Boalt Hall, said the
fact Heller was working for Diebold's attorneys limits his
ability to be a whistle-blower.
"Attorney-client privilege is sacrosanct," Lester said. "If he
were working for Diebold when he took the documents, it
would have been different."
Again, Kohn disagrees. Attorney-client privilege is not the
cover it used to be, he said. "Attorney-client privilege does
not protect clients from perpetrating a fraud."
Under the Sarbanes-Oxley law Congress passed in 2002 to
clean up corporate fraud, lawyers are required to expose
clients if they are lying to investors or to the Securities and
Exchange Commission. And, recently, the 5th U.S. Circuit
Court of Appeals in New Orleans allowed attorney-client
privileged documents to be used in the defense of an
in-house lawyer who blew the whistle on his employer for
violating environmental laws.
"[Heller] engaged in what the government considered a
criminal act. [But] that doesn't define someone as a whistle-
blower," Kohn said. "What does is their loyalty to the truth."
When the Tribune referred to the leaked Diebold memos in an
April 2004 story and posted them on its Web site, Jones Day
didn't go after Heller. The firm sued the Tribune's parent
company, MediaNews Group. Days later, the law firm dropped
the suit. MediaNews Group still is trying to get a court to
order Jones Day to pay the newspaper's legal fees for
defending what the newspaper claims was a frivolous lawsuit.
Majoras said the law firm continues to believe the lawsuit was
justified and therefore should not have to pay legal fees.
"The motivation for dropping the suit was because the
information was already out in the public," Majoras said. "So
litigating to get something back was pretty fruitless."
Federal prosecutors and the state attorney general both
looked at the Heller case but did not file charges.
Spokesman Tom Dresslar said Attorney General Bill Lockyer
never considered prosecuting Heller. Gibbons said the
district attorney took the case "because the crime happened
[in Los Angeles County]."
Kohn, who wrote a book on whistle-blower law, said, "The
charges are bogus. It's not commercial burglary because
[Heller] didn't gain financially by taking the documents.
Receiving stolen property is a bogus charge because the law
firm and the attorney cannot hold as property evidence of
fraud."
Heller accessed the computer files using a pass code given
to him by Jones Day.
Kohn said Jones Day had some options to help their client if
they knew Diebold had made false statements to California
officials. "They can withdraw and not represent them," he
said.
The firm also could "convince the client to do the right thing.
If they fail to do either of those, [Heller's] actions were sound
and proper because neither the client or these attorneys
were seeking redress."
But Majoras said Heller was a firm employee and had a duty to
abide by the rules of attorney-client privilege.
"We are constitutionally guaranteed the right to counsel," he
said, "and a free and unfettered ability to share information
with your counsel. Anything that undercuts attorney-client
privilege is something we should be concerned about."
Heller did sign a confidentiality agreement but only after he
had worked at Jones Day for six weeks and taken most of the
Diedbold documents.
Cindy Cohn, legal director of the Electronic Frontier
Foundation, said it was only after the Jones Day memos
became public that Diebold faced real consequences for its
actions; Shelley decertified the company's voting machines,
and Lockyer joined the 2003 whistle-blower suit brought by
activists Bev Harris and Jim March.
"Diebold was able to deny that they were violating the law,
and had been denying they broke the law in the public
debate," Cohn said. The company and its supporters
successfully portrayed Harris and a small band of activists
upset about the voting machines as fringe elements, she
said. After the memos surfaced, "we were able to
demonstrate that not only were they not kooks, they were
right."
Majoras denied the public release of the memos was a
watershed moment.
"Diebold Election Systems was having ongoing contact with
various elections officials in California going well back in
time," he said. "Whatever this individual did, didn't start any
type of contact with Diebold and California officials. To
suggest that anything in the Jones Day materials or anything
Diebold did amounted to criminal behavior is ludicrous.
Secretary of State Shelley asked the attorney general's office
if there was anything criminal, and the attorney general's
office said no."
Heller gave the Jones Day memos to Harris. She passed
them along to the Tribune. She also says the memos were
given to a secretary of state elections investigator during
public hearings on e-voting. The investigator, Michael
Wagaman, said in an interview with the LAPD that he recalled
someone giving him a computer disk during the hearings but
that he never looked at the files.
Along with giving the memos to the newspaper, Harris posted
15 of them on her Web site.
The attorney general asserted Diebold violated California's
False Claims Act. Diebold settled for $2.6 million.
Alameda County spent nearly $12 million in taxpayer money
for Diebold machines that failed during the March 2004
presidential primary. San Diego County spent over $30
million on Diebold voting machines that failed.
Electronic voting issues statewide triggered an investigation
of Diebold by Shelley.
Asked why Diebold wasn't forced to fully reimburse the
counties for the costs of the failed machines, Dresslar said
there were other things Diebold promised to do that weren't
outlined in the settlement. The company agreed to pay for
alternative methods of voting in areas where its machines
had failed.
"The people of California owe Stephen Heller a big thank
you," Cohn said. "I'm just heartsick that he's being criminally
prosecuted for trying to protect our votes. [The district
attorney] shouldn't be spending our tax dollars to send him to
jail."
WHISTLE-BLOWER PROTECTION DEPENDS ON
WHO HEARS WHISTLE
By Tamadhur Al-Aqeel, Daily Journal Staff Writer
Stephen Heller, a temporary worker for Jones Day in Los
Angeles, was alarmed by what he heard on an audiotape he
was assigned to transcribe for a lawyer.
On the tape, attorney Scott Shaw is heard describing how the
firm's client, Diebold Election Systems, violated a $12 million
contract with the state of California by changing the software
in its voting machines. On the tape, Shaw explains how the
firm would defend the company if Secretary of State Kevin
Shelley discovered the software switch.
After transcribing the tape into a memorandum, Heller, an out-
of-work actor, began searching Jones Day's computer
archives, downloading and printing anything he found about
Diebold - roughly 500 pages - over the next four days in
January 2004.
Three months later, in the March 2004 presidential primary,
Diebold's voting machines in Alameda County failed. Voters
were given paper ballots. San Diego County didn't have a
back-up plan when their Diebold machines failed that day. An
estimated 40,000 people were unable to vote.
In April, a month after the election called into question
Diebold's voting machines, four of the Jones Day memos
were posted on the Oakland Tribune's Web site. Heller had
given them to a voting-rights activist who gave them to a
reporter.
Now, two years later, Los Angeles District Attorney Steve
Cooley has charged Heller with three felonies: unlawful
access to computer files, commercial burglary, and receiving
stolen property. A judge is expected Monday to set a
preliminary hearing date in Heller's case.
Heller's supporters say he should not be prosecuted, that he
should be protected under whistle-blower law because he
made public information of interest to all California voters.
The district attorney's office maintains that whistle-blower
status does not apply when a person violates attorney-client
privilege.
"There is a way if a person wants to provide information of
misconduct to authorities," district attorney spokeswoman
Sandi Gibbons said, "[but] it doesn't protect them from
attorney-client privilege violations."
Michael Kohn, general counsel of the National Whistleblower
Center in Wasington, D.C., said Heller was just following in
the steps of other courageous whistle-blowers. Exposing
wrongdoing to a government agency is not required.
"The press is perfectly acceptable," Kohn said. The
"grandfather of all whistle-blowers," Daniel Ellsberg, gave the
"Pentagon Papers" to the New York Times, Kohn said.
Charges against Ellsberg, who stole the documents from
Santa Monica-based Rand Corp., where he worked, were
eventually dropped.
The 1990s case of Dr. Jeffrey Wigand has many similarities to
Heller's case. Wigand revealed to the television news
magazine "60 Minutes" evidence the tobacco industry
manipulated nicotine levels in cigarettes to make them more
addictive. Wigand decided to become a whistle-blower after
looking at documents smuggled out of law firm Wyatt, Tarrant
& Coombs, which represented tobacco company Brown &
Williamson. The documents were given to him by a
concerned paralegal, Merrell Williams. In June 1994, the New
York Times ran long articles based on thousands of
documents taken from Brown & Williamson's lawyers.
Furthermore, UC San Francisco medical professor Stanton
Glantz put the documents on the Internet.
Both federal and state whistle-blower statues protect an
employee or former employee from retaliation, legal or
otherwise. The laws, however, leave prosecutorial discretion
to law enforcement agencies.
In the Wigand case, Brown & Williamson hired a public
relations firm to pitch news stories that called into question
Wigand's credibility. Wigand sued the tobacco company and
won.
When the Diebold memos were made public, Jones Day
launched an internal investigation of the firm's word
processing department to find the person responsible for
leaking sensitive internal documents. A trail of computer
access codes, building pass keys, and the word processing
department's own computer serial number tracking system
led them to Heller. In a detailed letter to Los Angles police
detectives Juan Martinez and Brian Collins, Jones Day
partner Brian O'Neill outlined the firm's investigative methods
and findings. "During our meeting you raised a question of
whether copying documents from a computer system such as
the Jones Day system would comprise a violation of [the state
Penal Code]. Clearly such conduct would violate the statue,"
O'Neill wrote.
"What we've done here is how you would expect a victim of a
crime would react," said Jones Day attorney John Majoras,
who brought client Diebold to the firm.
Gibbons said Heller is a thief. To qualify as a whistle- blower,
Heller would have had to give the documents to the Los
Angeles Police Department or some other government
agency, she said.
"But it doesn't make any difference," Gibbons said. "He's not
charged with what he did with the documents. He's charged
with taking them."
"That makes no sense," Kohn said. "Saying if he turned them
over to government he would have been protected - there's
no law that provides for that."
Whether the documents were turned over to the government
or to the press, the same "crime" was committed, Kohn said.
The important part is "the fact that he turned them over with
no self- interest. [The district attorney] should refuse to
prosecute. They should be protecting someone who shed
light on crime."
Gillian Lester, a visiting law professor at Boalt Hall, said the
fact Heller was working for Diebold's attorneys limits his
ability to be a whistle-blower.
"Attorney-client privilege is sacrosanct," Lester said. "If he
were working for Diebold when he took the documents, it
would have been different."
Again, Kohn disagrees. Attorney-client privilege is not the
cover it used to be, he said. "Attorney-client privilege does
not protect clients from perpetrating a fraud."
Under the Sarbanes-Oxley law Congress passed in 2002 to
clean up corporate fraud, lawyers are required to expose
clients if they are lying to investors or to the Securities and
Exchange Commission. And, recently, the 5th U.S. Circuit
Court of Appeals in New Orleans allowed attorney-client
privileged documents to be used in the defense of an
in-house lawyer who blew the whistle on his employer for
violating environmental laws.
"[Heller] engaged in what the government considered a
criminal act. [But] that doesn't define someone as a whistle-
blower," Kohn said. "What does is their loyalty to the truth."
When the Tribune referred to the leaked Diebold memos in an
April 2004 story and posted them on its Web site, Jones Day
didn't go after Heller. The firm sued the Tribune's parent
company, MediaNews Group. Days later, the law firm dropped
the suit. MediaNews Group still is trying to get a court to
order Jones Day to pay the newspaper's legal fees for
defending what the newspaper claims was a frivolous lawsuit.
Majoras said the law firm continues to believe the lawsuit was
justified and therefore should not have to pay legal fees.
"The motivation for dropping the suit was because the
information was already out in the public," Majoras said. "So
litigating to get something back was pretty fruitless."
Federal prosecutors and the state attorney general both
looked at the Heller case but did not file charges.
Spokesman Tom Dresslar said Attorney General Bill Lockyer
never considered prosecuting Heller. Gibbons said the
district attorney took the case "because the crime happened
[in Los Angeles County]."
Kohn, who wrote a book on whistle-blower law, said, "The
charges are bogus. It's not commercial burglary because
[Heller] didn't gain financially by taking the documents.
Receiving stolen property is a bogus charge because the law
firm and the attorney cannot hold as property evidence of
fraud."
Heller accessed the computer files using a pass code given
to him by Jones Day.
Kohn said Jones Day had some options to help their client if
they knew Diebold had made false statements to California
officials. "They can withdraw and not represent them," he
said.
The firm also could "convince the client to do the right thing.
If they fail to do either of those, [Heller's] actions were sound
and proper because neither the client or these attorneys
were seeking redress."
But Majoras said Heller was a firm employee and had a duty to
abide by the rules of attorney-client privilege.
"We are constitutionally guaranteed the right to counsel," he
said, "and a free and unfettered ability to share information
with your counsel. Anything that undercuts attorney-client
privilege is something we should be concerned about."
Heller did sign a confidentiality agreement but only after he
had worked at Jones Day for six weeks and taken most of the
Diedbold documents.
Cindy Cohn, legal director of the Electronic Frontier
Foundation, said it was only after the Jones Day memos
became public that Diebold faced real consequences for its
actions; Shelley decertified the company's voting machines,
and Lockyer joined the 2003 whistle-blower suit brought by
activists Bev Harris and Jim March.
"Diebold was able to deny that they were violating the law,
and had been denying they broke the law in the public
debate," Cohn said. The company and its supporters
successfully portrayed Harris and a small band of activists
upset about the voting machines as fringe elements, she
said. After the memos surfaced, "we were able to
demonstrate that not only were they not kooks, they were
right."
Majoras denied the public release of the memos was a
watershed moment.
"Diebold Election Systems was having ongoing contact with
various elections officials in California going well back in
time," he said. "Whatever this individual did, didn't start any
type of contact with Diebold and California officials. To
suggest that anything in the Jones Day materials or anything
Diebold did amounted to criminal behavior is ludicrous.
Secretary of State Shelley asked the attorney general's office
if there was anything criminal, and the attorney general's
office said no."
Heller gave the Jones Day memos to Harris. She passed
them along to the Tribune. She also says the memos were
given to a secretary of state elections investigator during
public hearings on e-voting. The investigator, Michael
Wagaman, said in an interview with the LAPD that he recalled
someone giving him a computer disk during the hearings but
that he never looked at the files.
Along with giving the memos to the newspaper, Harris posted
15 of them on her Web site.
The attorney general asserted Diebold violated California's
False Claims Act. Diebold settled for $2.6 million.
Alameda County spent nearly $12 million in taxpayer money
for Diebold machines that failed during the March 2004
presidential primary. San Diego County spent over $30
million on Diebold voting machines that failed.
Electronic voting issues statewide triggered an investigation
of Diebold by Shelley.
Asked why Diebold wasn't forced to fully reimburse the
counties for the costs of the failed machines, Dresslar said
there were other things Diebold promised to do that weren't
outlined in the settlement. The company agreed to pay for
alternative methods of voting in areas where its machines
had failed.
"The people of California owe Stephen Heller a big thank
you," Cohn said. "I'm just heartsick that he's being criminally
prosecuted for trying to protect our votes. [The district
attorney] shouldn't be spending our tax dollars to send him to
jail."
| April 21, 2006 Los Angeles Daily Journal |
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