Diebold Whistle-Blower Charged With Felony Access 585
Vicissidude writes "An employee of law firm Jones Day found legal memos showing that their client, Diebold Election Systems, had used uncertified voting systems in Alameda County elections beginning in 2002 - violating California election law. The whistle-blower turned over the memos to the Oakland Tribune, which published the legal memos on its website in April 2004. The company's AccuVote-TSx model was subsequently banned in May 2004. Now, the whistle-blower, Stephen Heller, has been charged in L.A. Superior Court with felony access to computer data, commercial burglary, and receiving stolen property. If convicted on all three counts, Heller could face up to three years and eight months in state prison. Blair Berk, Heller's attorney state, "Certainly, someone who saw those documents could have reasonably believed that thousands of voters were going to be potentially disenfranchised in upcoming elections." Sandi Gibbons, spokeswoman for the L.A. County district attorney's office rebuts, "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.""
Legal Questions (Score:3, Insightful)
One thing that I don't need a JD to see is that the prosecutors have their work cut out for them in convincing a jury that this man deserves to go to prision. In fact, I wouldn't be surprised to see a politician who's up for reelection in November introduce and grandstand over some new legistlation that would have protected this guy.
Wow (Score:5, Insightful)
Living here is becoming creepier and creepier, I think some of Katz's old paranoid ramblings here may not have been so paranoid.
Is this really a crime? (Score:5, Insightful)
"Certainly, someone who saw those documents could have reasonably believed that thousands of voters were going to be potentially disenfranchised in upcoming elections."
So let me get this straight. His "crime" was the fact he alert people to the fact that the local elections were flawed due to the use of uncertified equipment? Is it their argument that because of this people might have disengaged from local politics and that hurts society and thus requires punishment? That's not just absurd, it's scarey.
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.
No it is not. It is your job to prosecute if the following criteria are met:
While the first criteria may well be true, the second one is not. As an aside, pne of the assignments that my brother was asked when he was studying for his law degree was to answer the following question: "Given the fact that Parliament can make any law it pleases, without being constrained by the decisions of previous Parliaments, would the courts uphold a law that sactioned the execution of every blue-eyed baby in the country."
The answer is no. Technically, the court would be obliged to rule in favour of Parliament. This is because we do not have a written constitution that safeguards our rights [1]. However, the view is that the courts would never uphold this because of it's incredible abhorence.
The point of the excercise is to demonstrate one thing to woodbie lawyers: "Just because it's the law does not make it right." Morality and law are seperate beasts. Lying to your wife is immoral but it not a crime. In this case he may have broken the law, but frankly I think that is price worth paying for the value of the information he gave us. What he did was a crime but it was not immoral and did not seek to undermine society.
Simon
[1] - This is becoming less and less true. While in terms of legal theory it is certain that Parliament is not constrained by the decisions of previous Parliaments, in practice this isn't true. There are some acts that would be pretty much impossible to repeal. The European Communities Act (ECA) is a prime example of this kind of legislation. While it's legally possible to repeal the act doing so would require leaving the European Union which will never happen.
Thanks to the ECA, we are slowly acquiring a constitution. The Human Rights Act of 1998 was derived from the European Convention on Human Rights and was the first act of Parliament to acknowledge our fundamental rights in the positive. (i.e. Paraliment stating we have these rights explictly rather than simply failing to prohibit these actions).
Public Good? (Score:4, Insightful)
How can one balance the voter fraud versus the revealing of "trade secrets?"
More and more it is of the People, for the rich, by the ownership class.
*mumbles about the revolution and walls*
Justice American-style (Score:5, Insightful)
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.
And so, once more, the American public has been saved from a shameful case of fraud by its justice system, ensuring that decent, law-abiding citizens everywhere will fear for their lives if they point out that the Emperor has no clothes.
Was what he did wrong? By the law, yes; by morality, no. If you know something bad is happening and you're in a position to do something about it, shouldn't you? Is that what the whole Enron trial is, pointing out that the people in the know not only didn't do anything about the destruction of the company, they helped it along. When was someone at Enron going to stand up and say, "hey guys, you're doing bad things."
But that's just it. They had to pass laws to protect whistle-blowers in the first place, because once you did it, you had a bullseye painted squarely on your back. It was the only way to assure people that they could speak up about the wrongs they were seeing committed every day. And yet those protections do not go far enough as evidenced by this, where the old saw "no good deed goes unpunished" has apparently been made law of the land. All Ican say is, I hope this does not get pursued or there will be a freezinf effect that will allow big business to continue to steamroll people everywhere.
Re:Legal Questions (Score:3, Insightful)
If he'd been working with police on an investigation he might be in the clear. Turning it over to a newspaper could present a problem for him though.
Lesson Learned (Score:4, Insightful)
Of course, if it were me, I'd go to prison with a big, shit-eating grin on my face. The corporations are trying to Rule the Earth, and so this is a war between normal citizens and the elite. In war, people get hurt; I accept that. Heller may be a necessary sacrifice. He can eat at my dinner table anytime, and he can always ask me for a job when he gets out of prison. I hope there are many citizens who feel the same way and will help him when he needs it.
Maybe we should put G. Washington on trial (Score:5, Insightful)
You read this and your blood runs cold. It makes you wonder what would happen to George Washington if he was attempting to break the colonies from Britain today.
Sometimes government becomes so complacent, the people accepting of crap, that both need a good house cleaning.
In any event, this country needs a reminder of what the founding fathers had in mind when they formed this country.
It's all quite sad.
Jury Nullification (Score:4, Insightful)
I'll never have to serve on a jury as I find it my civic duty to ask a question relevant to the case that forces the judge to explain that concept to those jurors who _are_ allowed to stay. The job of the jury is to ensure that _justice_ is done, not that the law is followed. If they determine that application of the law is itself unjust, they are absolutely 100% in their rights to find "not guilty," even if every single shred of evidence screams out otherwise.
Re:Wow (Score:2, Insightful)
Whistle blowing is still allowed if you are connected to the White house and you are outing a CIA agent for no good reason.
Also, if you have the right connections you can shoot a man from 20 feet away and wait till you sober up the next day to talk to the police and tell them he was 90ft [infowars.com] away.
Re:What the hell was this guy thinking? (Score:3, Insightful)
If he had gone through "official" channels, he most likely wouldn't have been coerced right there into silence and most likely, nothing would have been changed on diebold's side
Re:Just because you agree with him (Score:5, Insightful)
Correct.
(Warning: IANAL)
Diebold was knowingly using uncertified software to operate their voting machines, in clear violation of both the law and their agreement with the state of California. At best, this is breach of contract: at worst, it could be considered felony vote tampering.
Jones Day, a law firm which was advising Diebold and where the whistleblower was temping, sent several memos to their client about the subject. The memos appear to show that not only was the firm aware of the illegality of Diebold's actions, but was actively providing their client advice on how to evade detection, making them party to their illegal activities.
Heller discovered the documents, which he believed provided evidence that both companies had conspired to defraud the state of California. Days after their exposure, the state decertified the Diebold machines. The lawsuit which followed cost Diebold $2.6 million to settle out of court.
This isn't about upholding the law. This is about putting the fear of god into future whistleblowers when they dare to cross paths with a powerful corporation.
And that's what makes Heller's actions okay.
Ah, yes (Score:3, Insightful)
Re:Fuck the L.A. County district attorney's office (Score:3, Insightful)
Re:Wow (Score:3, Insightful)
Re:Jury Nullification (Score:2, Insightful)
If you don't like the laws and find them unjust it is your job to vote for politicians that you believe will work to change the laws and end the injustices. Our legal system isn't here for justice, it is here to allow society to continue to function without devolving into anarchy.
Re:The Problem is with the media (Score:3, Insightful)
The "whistleblower" status is for people who know that something dirty and wrong is going on and turn over their evidence to internal agencies of the government to deal with it.
This is wrong. Whistle-blowers status is to protect individuals who divulge information vital to the welfare of the people in which the people have an overriding interest. In many cases they are reporting on government corruption and cannot be expected to trust other elements of the government. It is important that they can provide their information to law enforcement and the public via any channel, public or private.
He leaked to the goddam newspaper. That's exactly the opposite of what you're supposed to do. He's geetting what he deserves.
A man stuck his neck out. He risked his job and possibly his life to expose corrupt and criminal actions that undermine the very foundations of out government (the democratic process). I don't care if he did it because he wanted to be famous or if he did it because he had a grudge. The end result is that the public found out about very important abuses. It is important that the laws protect him to encourage this behavior in others.
Re:Proper Channels (Score:3, Insightful)
Re:The problem is a free press? (Score:2, Insightful)
If you really think it was *wrong* what he did, then please explain to me how the populace should find out that their voting machines are (potentiatlly) fatally flawed? Who would willingly release this information? How would we *ever* find out?
If Diebold doesnt want bad press then they should improve thier machines to stand in the light of open public investigation. If they are unable to build such machines then they should probably not be in the business of selling voting machines.
Re:Lesson Learned (Score:3, Insightful)
I mean, this is the fucker of the thing: corporations who market election systems are serving ONE type of client only. That client is the highly partisan board of elections in each electoral district. Highly partisan boards of course would want systems that they can perform vote fraud upon, as either more fraudulent votes in the future, or less-detectable fraud for what they do now.
Re:Jury Nullification (Score:3, Insightful)
i would settle for the Read The Bill Act (http://www.downsizedc.org/read_the_laws.shtml [downsizedc.org])
Re:Don't blame the DA (Score:5, Insightful)
Wrong! (Score:5, Insightful)
Responsible whistle-blowing goes public. That's what it means: You're standing there blowing the whistle as loudly as you can to get attention to the wrongdoing. You're not finding some official to whisper quietly to about it.
Re:Just because you agree with him (Score:3, Insightful)
In other cases there is no consideration for things like this....for example if someone breaks into your house and becomes injured going up the stairs, you are liable for his injuries because you neglected to fix that broken bannister he was using. Or if you set something up to trap burglars in your basement while you were on vacation and is forced to eat outdated food in your refrigerator and gets sick on it, you are liable for his illness. Just because one party breaks the law does not make the other party immune from it unless you have some kind of immunity negotiation with law enforcement like when a suspect gives up information about others that incriminates himself. I think the only other exception to this is using lethal force against someone who you believe is going to kill you. In that case you are permitted to kill in self defense as long as there is an obvious, immediate life-ending threat.
The whistleblower in this case may be right from a "helping my fellow man" point of view by disclosing his information, but that does not make him right in the eyes of the law. Besides, there are defined processes that one should go through before going to the media as a whistleblower which are legally acceptable and defensible.
Re:California Court System In Action (Score:3, Insightful)
You are fully familiar with cases concerning OJ Simpson and Michael Jackson aren't you, dear reader?
Yeah, I'm familiar with how one guy was acquitted because the case against him was horribly mismanaged and distorted by clearly corrupt police, and I'm familiar with how the other guy was acquitted because the evidence against him basically amounted to 'look at him, he's weird'.
Not every trial _has_ to end in a conviction. The idea is to find _whether_ it can be _proved_ that the defendant is guilty.
Re:Jury Nullification (Score:2, Insightful)
according to his own best understanding, judgement and conscience,
though in direct opposition to the instruction of the court.
--John Adams, 1771
It is misguided to believe the legal system is supposed to bother only with efficiency and mechanical adjudication with no regard to justice.
Under English law, juries could render verdicts contra to the law and the instructions of the judge (Zenger case, for instance). Do you think the founding fathers would voluntarily surrender that right (see Zenger) in the interest of functionality over justice?
Do you think that in an age where 600-page bills are routinely passed and 536 (Congress + prez) decide the laws for 280 million people, that the solution to an unjust law is ONLY through petition?
Its not Attorney-Client Privilege. (Score:3, Insightful)
I am not a lawyer but I am pretty sure that CA law does not protect client confidentiality in cases where the client is planning an overtly criminal act. But that does not mean that disclosure to the press is necessarily protected.
It seems somewhat unlikely that this trial is going to result in a guilty verdict unless the court prevents the defense from presenting their case that the accused believed that he was protecting the election to the jury.
What it does mean is that there is going to be a lot of intense scrutiny of Diebold's voting machines and a lot of internal Diebold correspondence is going to come out in court.
At this point Diebold paranoia is mostly on the left in the US, but as I was arguing in my blog this morning [washingtonmonthly.com] it is only a matter of time before the right begins to become equally suspicious. Whether justified or not there is going to be someone who cries foul. I really do not think it is at all likely that Diebold would be part of any electoral conspiracy, even if the CEO is a Republican I'll bet most of his engineers are liberals and libertarians.
The key discovery here is that a voting system has to be auditable, not just secure. Diebold's ATMs only need to be secure. The bank knows how much cash is put into them each day and how much is withdrawn. The machine itself is not the sole trusted component in the audit loop. That is not the case with the voting machine designs.
Re:Jury Nullification (Score:2, Insightful)
And, no, that's not a mistrial. It's called jury nullification. It's the origin of freedom of speech and religion in this country, for one thing, because people refused to find others guilty of critizing the king and their religion.
In the longest sense, it's the reason we have trial-by-jury, it's the reason the Magna Carta exists. It's not to get a 'fair' trial, you can have fairness without having a jury of your peers. (Why peers instead of impartial legal experts?) It's so when there's a law that the population does not agree with, they can decide not to convict anyone of it. Or when the circumstances warrant it. (Speeding your pregnant wife to the hospital? Okay, speeding ticket dismissed.)
It's why the Declaration of Independence has a line in there about 'mock' trials and transporting accused criminals back to England to face a jury there. They were English, they knew their rights, they kept failing to convict other Englishmen of breaking the stupid laws people thousands of miles away kept passing, as was laid out in the Magna Carta. Ergo, the English government had to start doing that to find anyone guilty of anything.
And the idea that 'You can commit a crime to prevent a worse one' comes from there. If you break into someone's house to keep from being murdered, that's technically illegal. However, you won't get arrested for it, because common law says, traditionally, that you can do that, thanks to centuries of juries finding such people, who factually committed a crime, innocent. (No, it's not legally self-defense, that only applies to you using force against someone attacking you, not breaking into an unrelated person's house. Self-defense also started that way, although that is now codified into law.)
That's why the concept that the defense attorney cannot introduce this information, or facts about, say, medicinal use of pot (to pick an example) is the most dangerous precedent this country has ever had pre-Bush. Defense attornies should be able to produce anything they can prove. I'm not saying if they can't prove it, they shouldn't be able to introduce it, I'm just saying if they can, it should be forever out-of-bounds to restrict in any way.
Right now it's claimed it's 'not relevant', because the law doesn't make a distinction. But the circumstances and reason for a crime are always relevant. And, I have to point out, this only matters in cases where the defendant admits guilt, but shows up in court anyway instead of cutting a deal, which is like .1% of the time. We won't hear sob stories about how someone robbed that gas station and killed some people because he needed money to buy his kid medicine, because he'd have to admit he was guilty.
Incidently, if the phrase 'throw yourself on the mercy of the court' is going through your mind, that is, indeed, exactly where that phrase is coming from.
1) Often, they think this punishment should be 'none'.
No Good Deed? (Score:1, Insightful)
Yes, the Federal whistleblower statutes say Jones should have reported this to the government. Problem with that is, the current government in California directly benefits from the faulty machines. Where do you go from there? The Feds? They ALSO directly benefit from the faulty machines. Where is Jones to go?
Re:I am a Lawyer. (Score:2, Insightful)
There are millions of people who honestly believe recent elections of federal officers have been rigged, in what amounts to a coup d'etat, in part facilitated by the Diebold corporation.
In this light, it should be more surprising that we have not seen violent acts of rebellion, and certainly that there have not been more incidents where people have sought to expose Diebold.
This was a peaceful act of civil disobedience (for which Heller should face the consequences!) with a much larger goal than merely exposing an attorney's briefs. There may be a case to be made that the ruling party governs without legitimacy, and if that's true, there is no legal framework under which the matter can be considered fairly, since it questions the very authority of the government under which any question of law can be judged.
Now, I personally do not believe Diebold is effective enough to accomplish a coup, and I consider the current government to be an expression of the apathy of voters. I also don't believe that *even if* these documents show what they are purported to show, they amount to a defense for Heller.
However, in a question as serious as this, it was irresponsible of counsel to allow this information to escape.
Re:The Problem is with the media (Score:3, Insightful)
Go read the whistleblower statutes. You're incorrect.
Actually, I have read them both for this state and several others. I was speaking of the stated purpose of the whistle blower statutes, which I was paraphrasing. The details of the implementations may or may not actually do that, but the majority of them state that the purpose is to protect the interests of the people by offering protection for those who act in the interests of the people when that interest is in exposing government corruption, public health dangers, and other topics of great concern to the populace.
Re:It's safe to say (Score:3, Insightful)