bradblog: Diebold Whistleblower Facing Three Felony Counts

[freedomfries]

Last week we briefly discussed Stephen Heller who, out here in Los Angeles, is now facing three felony charges for exposing the illegal scheme by Diebold to use uncertified software on their voting machines in the state several years ago. Heller blew the whistle on the plan to defraud California voters by exposing documents he saw while working as a temp worker at Diebold's California law firm, Jones Day. The courageous act, from which Heller stood to gain nothing (he, in fact, was fired for it) led to the decertification of Diebold in the state by former Sec. of State Kevin Shelley, and then to the eventual settlement between the company and the state of California for $2.6 million in 2004.
http://www.bradblog.com/
Today, several Huffington Post blogger take up on Heller's behalf, along with issuing some calls to action to contact the LA District Attorney's office to encourage tell them to drop this appalling case of punishing the patriot, Heller at the behest of the the bullies at Diebold.

Peter Soby Jr.'s coverage is the most complete. Here's a snippet:

Let's make this clear, folks. The docs Heller is accused of exposing were important evidence. First, they show that Diebold and their attorneys, Jones Day, conspired to mislead the California secretary of state, and that the lie they told was material, and resulted directly in the disenfranchisement of voters. Second, another document demonstrates that Diebold lied to the secretary of state when it represented that certain problems with its software were "fixed." This document, the release notes for the new software, showed that the problems were not fixed. Third, the documents showed that Diebold had been advised by Jones Day that what it had been doing with its uncertified software was illegal. Fourth, the documents show that Jones Day advised Diebold that it was subject to criminal prosecution. So in a nutshell, Diebold was defrauding the state government and taxpayers of California, and disenfranchising the voters of California. And the documents PROVE it.

And for allegedly exposing Diebold's felonious behavior (which led directly to Diebold being de-certified in California), for allegedly helping protect the taxpayers and voters of California, for allegedly helping to keep elections clean and fair, what happens? Diebold, the true criminal in this case, and their powerful international law firm Jones Day, press the L.A. District Attorney's office to hammer Heller, a whistleblower. Three felonies! Diebold was (and probably still is) screwing California voters, Heller is alleged to have seen the smoking gun evidence of Diebold's crimes, and, like a true patriot and whistleblower, allegedly exposed that smoking gun evidence, and now HE'S the one facing jail time. Only in Bush's America!

Soby goes on to offer some talking points and helpful contact information for the LA District attorney. Please check them out and take action.

...CONTACT...
District Attorney's Office
County of Los Angeles
210 West Temple Street, Suite 18000
Los Angeles, CA 90012-3210
Email: [e-mail]
Telephone: [phone]
Fax: [phone]
TTY: [phone] (8:30am - 5:00pm M-F)
http://www.bradblog.com/archives/00002472.htm

[caligirl]

1. case number here, no DA assigned yet from Huff. Post,

You need this information Case Number BA298120, th arraignment is 4/24/06. No DA has been assigned, but the high tech crime division number is 213 580 3272

[EFerrari]

2. Sent to L.A. Greens.

:mad:

[Kelvin Mace]

7. Did Jim March burn his source?

Is this what folks get for trusting bbv.org?

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.

[EFerrari]

10. Who knows. There is one person twisting in the wind and it ain't him. nt

[Kelvin Mace]

14. It seems that the only person who knew

would be the newspaper, March and Heller. One of these things doesn't belong....

[Boredtodeath]

13. Yes, he sure did

From a post at dailyKos:

Heller was likely denied whistleblower status because of Bev Harris and Jim March. They already had whistleblower status and pending litigation. From the documents:

2. Qui Tam Action Under the California False Claims Act
A. Factual Development During Seal Period2

2If the seal is lifted and the complaint served, this will need to be actively defended.

Harris and March had already filed Qui Tam, and should have included Heller in that suit to give him IMMEDIATE whistleblower protection.

The only problem with that plan was it meant splitting their winnings with Heller.

Harris and March walked away with $76K each and Heller is facing criminal charges.

http://www.dailykos.com/story/2006/2/27/123118/193

[Kelvin Mace]

15. What a prick!

We can now add this to the long list of crimes against activists.

[Boredtodeath]

16. Don't forget

It was these documents that had folks abuzz about that qui tam claim and who filed it.

Only after these documents surfaced, did Bev Harris admit publicly that she HAD filed her Qui Tam with March..............

[Kelvin Mace]

17. So, the rate of exchange

for thirty pieces of silver is now $70K.

[Boredtodeath]

19. “Oh what a tangled web we weave,

When first we practice to deceive”
Sir Walter Scot

Looks like the BBV web is starting to fall apart.

[Wilms]

20. .

:wow:

[RufusEarl]

3. Why are the California Democratic party,

not speaking up about this? Why are not the Calif, Representatives not speaking out about this? And can someone explain to me why the MSM are not speaking out about this?

This should be the biggest story of our country, but it appears that only the Huffington people are standing up to Die Bold. This makes no sense to me, everyone in this country should be outraged about this problem.

[caligirl]

4. After what we saw happening in Ohio and without any outrage

then, this is no surprise. This entire population operates on :if it didn't happen to me why should I care. They are too ignorant and uninformed to care. Democracy lost in 2000

[EFerrari]

5. WE have to lead the leaders. WE have to make the calls.

In this climate, without popular support, they won't park their own cars let alone, go up against the kleptocrats.

Let's make the calls!

[RufusEarl]

6. That's fine with me,

i'm not from California but hell that hasn't stopped me yet! Does anyone have the appropriate phone numbers and email addresses hand?

If not i can google them, it's no big deal, just quicker if someone from Cali has them.

thanks in advance.

[EFerrari]

8. I'd start with the L.A. DA's office as suggested in the OP:

District Attorney's Office
County of Los Angeles
210 West Temple Street, Suite 18000
Los Angeles, CA 90012-3210
Email: [e-mail]
Telephone: [phone]
Fax: [phone]
TTY: [phone] (8:30am - 5:00pm M-F)

And after that, I'd contact my local party and the DNC -- because there's a full court press on CA right now. Cheney's media guy is coming out here to cheney us during the Grope's re-election campaign. Our Thug Sec of State is trying to stuff Diebold down our throats.

They're setting the table for 2008 . .l .

[caligirl]

9. SOS legally late on public records, March 1 meeting, public comment

A hearing is set for March 1, 2006, at the Secretary of State's office to take public commentary on a slew of new or revised voting machines from ES&S, Sequoia, Hart and Populex. The hearing agenda and other information has been posted on the Secretary of State’s website, but significant for their absence are the legally required staff reports on these systems to allow the public to make informed comment. McPherson's office has repeatedly promised to make these reports available a month ahead of time (again, as required by law) but as of today---9 days before the hearing---they have yet to be posted for public review.

The Secretary of State's office is now "legally late" on a series of public records requests made by California Elections Committee Chair Debra Bowen, and McPherson's office has declined, refused or failed to publish its own legally-required staff reports with respect to these voting systems, in violation of California elections law. Also in violation of California law, the Secretary of State has failed utterly to promulgate and present for public input regulations to govern this voting systems approval process.

Source: GrassrootsWest.org

[EFerrari]

11. Please let him keep screwing up this badly.

:evilgrin:

[RufusEarl]

12. Thanks for the link, i'll get right on it!

[nicknameless]

18. Recommended

[rumpel]

21. legal issues...

I have been trying to find the actual indictment, and have so far not found it. My following comments should also double as a question to the legal minds on this forum.

I am skeptical, that having a letter writing drive to the DA can accomplish anything. They go by the law, granted that it is possible that a powerful "international law firm" has friends and acquaintances working at the LA DA's office to make suggestions for an indictment. However why now? I do not understand the timing. There must be some additional issues behind this.

On it's face, I can envision it is in fact a breach of the law firm's duty to protect attorney client work product & privilege.
It is in fact unauthorized removal of these documents by an employee possibly with unauthorized access.
Further the resulting case CA SOS & bbv v Diebold resulted in a settlement, which I presume precludes anyone from suing Diebold over the same incident and charges: double jeopardy? Thanks to bev, Mr. Heller has nothing to counter sue.

A quick search on Blair Berk, Esq shows that he represents celebrities in trouble and is quite good at that, let's hope he handles this case well and gets his PR going so that this case is all over the news everywhere, every day.

Anyway, what I have found however is a related matter in which Jones Day had previously sued the Oakland Tribune to retrieve all documents in April of 2004.
So, my point is, would this Heller indictment not also constitute double jeopardy? The judge in the case has already entered a judgment on the documents.
Arguably, theft will result in some type of damage claims. Since it is the LA DA, they will have to claim damage to Jones Day and/or the general public? In which case, Jones Day already had their day in court, the public? Where is the damage to the public? Mr. Heller saved us from potential damage.

http://importance.corante.com/archives/003325.html

excerpt from the above site:

And what sort of relief was Jones Day asking for?

"They asked for an order directing the defendants to return all copies of what they're calling protected documents in whatever form they exist, and all notes, summaries, digests and other recordings of the documents," said Jean-Paul Jassy, the attorney representing MediaNews Group and Hoffman.
"They were also asking for a restraining order preventing any further use of the documents for any purpose ... but about halfway through the hearing they said they were no longer asking for that second point."
That last point, which Jones Day apparently dropped, is known as a prior restraint and is severely frowned upon by the First Amendment - something the judge apparently understood. However, the paper was required to turn over everything they possessed:

In a three-hour hearing Tuesday evening, Janavs said she wouldn't prevent future stories from being written about the documents. In a one-page, handwritten order, she directed the defendants to turn over to her "all copies of Jones Day documents marked 'attorney work product, privileged and confidential' whether on Jones Day letterhead or not, forthwith."
The order to turn over the documents is being appealed and I certainly hope they succeed. Unless there has been criminal action by the reporter to obtain the documents (and even then one should only sue on the illegal action), newspapers must be free to report on such documents when they come to light. If a newspaper can publish the Pentagon Papers, I don't see why a newspaper can't publish some legal memos regarding our voting system.

However, there was a major exception to the order:

"This order does not apply to replicas of such documents already published on defendants' website," the judge concluded.
Bravo judge! The cat's out of the bag ... why should Jones Day get to stuff it back in when the Pentagon couldn't?

In summary, I would hope that Berk will file a motion for the court to first rule that Mr. Heller is a whistle blower. Would it not be more helpful to ask Waxman & Boxer to intervene? Even if it is an amicus brief? Should not all citizen organizations file a formal amicus brief in the case to appeal to the judge? I would hope that Berk will file a motion to rule that Mr. Heller is a whistle blower. I think this is the fastest way for this injustice be rectified.

Before I fire off any letter to support Mr. Heller, I would like to make sure I know all the facts so we have the best chance to make an impact.

[freedomfries]

22. LA Times article about Heller's attorney

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."
http://www.latimes.com/news/local/la-me-diebold22feb22,1,7096292.story?ctrack=1&cset=true

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.

[rumpel]

23. Yes, the actual pdf's are available at the link I posted.

It says there was an appeal on the case the article refers to. I have to sift through and find out whether I can find the conclusion of the appeal.
If the ruling on appeal was overturned I do not know how that will reflect on the Heller case. I would ike to see the actual indictment.
I think this is bogus & the DA should be ashamed. I want to find out what is behind this. I will be digging. But as I was writing my original post, I have something else I have to also address. It is a personal legal fight I have been fighting now for 10 years.... :(
I tell you justice is not there for the victims, it is there for those who have the money, and this really set's me off.

all pdf's

ACTION AND BUDGET ESTIMATES: TWO MONTH PLAN
this is the estimate & action plan Jones gave to Diebold

Comprehensive Position Paper: This would be a synthesis of the above analysis plus additional factual and legal development. This would be the basis for white papers, responding to subsequent developments, persuading prosecuting authorities not to bring criminal charges, defending the False Claim Case, reports to board, press releases, governmental and media inquiries and filings. This is recommended given the exposure but is a decision for the client.
Summary for Two Month Estimate: $535,000 -$925,000

DIEBOLD ELECTION SYSTEMS Re: Alameda County Agreement

DIEBOLD ELECTION SYSTEMS, INC. Re: Issues Regarding California Secretary of State Investigation

DIEBOLD ELECTION SYSTEMS, INC. Re: Supplement to 11/24/2003 Memorandum Analyzing the Alameda County Agreement