http://www.latimes.com/news/local/la-me-diebold22feb22,1,7096292.story
From the Los Angeles Times
Man Pleads Not Guilty in Voting Device Case
By Hemmy So
Times Staff Writer
February 22, 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.
Times staff writer Jean O. Pasco contributed to this report.
From the Los Angeles Times
Man Pleads Not Guilty in Voting Device Case
By Hemmy So
Times Staff Writer
February 22, 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.
Times staff writer Jean O. Pasco contributed to this report.
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