Diebold's Revenge: Steve Cooley goes after a
whistleblower
By CHRISTINE PELISEK
Wednesday, March 1, 2006
What would you call a well-meaning employee at a law firm handling
Diebold's legal strategies who leaks key documents outlining problems
with voting machines to the secretary of state and a newspaper
reporter?
If you're Steve Cooley, L.A. County's district attorney, you'd call him
a thief and charge him with three felonies. If you're an expert in a
state law that protects employees who rat out potentially dangerous
and illegal conduct, you'd call him a whistleblower.
"The issue is that he shouldn't have been charged at all," said Louis
Clark, president of the Government Accountability Project, a
nonprofit whistleblower protection organization in Washington, D.C.
"It really is against public policy to bring felony charges against a
whistleblower who is alleged to have brought forward information
about election misconduct."
But Cooley did just that on February 21 when his office charged
Stephen Heller, 44, with felony access to computer data, commercial
burglary and receiving stolen property. The New York native could
face up to three years in prison if convicted.
"This is basically a man who allegedly hacked into private files," said
D.A. spokesperson Jane Robison. "We are alleging that he stole
computer files. If you are an attorney you have every reason to
believe that the information is guarded. Attorney-client privilege is
sacrosanct."
Heller became the focus of the District Attorney's Office in 2004 after
he allegedly gave the secretary of state and the Oakland Tribune
memos the law firm Jones Day sent to its client, Diebold, outlining
possible state elections law violations of its electronic voting machines.
Heller, an actor by trade, was working as a temporary word processor
on a three-month contract with Jones Day when he came across the
internal documents exposing irregularities in Diebold's electronic
voting machines. He passed the documents along to an intermediary,
who has not been identified, who placed them in the hands of Beverly
Harris, the founder of a Seattle-based elections-watchdog group called
Black Box Voting Inc. Harris then turned over the documents to
Heller's intended recipients in Sacramento and Oakland.
The Diebold memos were published on the Tribune's Web site in April
2004, a month after voting irregularities surfaced in San Diego and
Alameda counties by voters who were turned away at the polls while
others had to use paper ballots.
In one memo, the law firm warned Diebold, before the March primary,
that its use of uncertified vote-counting software in Alameda County,
starting in 2002, violated California election law and broke its $12.7
million contract. The lawyers also warned that Diebold faced greater
culpability if it knowingly violated California election law. According
to the memos, Jones Day also looked into whether then-California
Secretary of State Kevin Shelley had the power to investigate the
company's practices.
Five months earlier, in November 2003, the Secretary of State's Office
discovered that Diebold had installed uncertified software on its voting
machines in 17 counties without notifying state officials. Similar
allegations became the centerpiece of a civil suit filed by members of
Black Box Voting, which was later joined by the state attorney
general, accusing Diebold of misleading Alameda County about the
legality and security of its touchscreen voting systems. Diebold paid
$2.6 million to settle the lawsuit in 2005.
Harris defends Heller's actions. "He was concerned that he was doing
the right thing. If you are a good citizen, what are you supposed to
do? Nothing?" said Harris. "If citizens don't stand up when there is
something clearly wrong, then we are in deep trouble. We have to
depend on our citizens to be responsible and that is what he did. They
should be giving him a medal. This is an effort by big, powerful
players who want to change the subject from what they did and they
also want to discourage anyone else from telling what they know."
The state whistleblower law doesn't protect the employee from
criminal prosecution. "There is nothing that can protect him from a
prosecutor who decides to prosecute other than a jury and a judge,"
said Clark. "The district attorney can do something to Mr. Heller that
perhaps Diebold couldn't do."
Robison said the District Attorney's Office is not alleging monetary
gain.
"If there is no intention to profit from this then I think the charges
are outrageous," said Clark. "I would be surprised if any member of
the Legislature who put the law on the books had in mind someone
who was taking information and making sure it went to government
officials in order for them to look at whether a crime had been
committed by a company."
Jones Day did not file a civil case against Heller. In August 2004, the
San Fernando Valley home Heller shares with his wife, three cats and
a dog was searched by D.A. investigators, who confiscated his
computer.
"Three felony charges against someone is the same as saying we are
going to destroy this person forever," said Clark. "What kind of job
is this person going to get if he is convicted of a felony? That is a
very, very life-altering event in a person's life."
--------------------------------------------------------------------------------
The Whistleblower Law
An employer may not make, adopt or enforce any rule, regulation or
policy preventing an employee from disclosing information to a
government or law-enforcement agency, where the employee has
reasonable cause to believe that the information discloses a violation
of state or federal statute, or a violation or noncompliance with a state
or federal rule or regulation.
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