Blowing the Whistle on Diebold

Stephen Heller Fights for Election Protection

"I was working as a legal word processor at a law firm in Los Angeles, which unbeknownst to me when I started temping there, represented Diebold Election Systems in California. In late January 2004, as part of my job as a word processor, I saw some documents about Diebold that were full of irrefutable proof that Diebold was using and was planning to continue to use illegal, uncertified software in their California voting machines.

"This presented me with a very difficult dilemma. Attorney-client privilege is a very important part of our justice system; the right of attorneys and clients to communicate in secret and the right of attorneys to create documents and other material in service to their client and keep that material secret is very important; to breach that is a serious crime. I have a great respect and appreciation for attorney-client privilege… at the same time, I also have a great respect and appreciation for clean elections, and for the will of the people, via their vote, to determine who will be their government.

"I had to choose between breaking attorney-client privilege and helping to protect my entire republic, or keeping my mouth shut and respecting Diebold's right to have secret and private communications with their attorneys. The choice I made was to steal the documents and expose them. I gave them to Bev Harris of Black Box Voting, and Bev sent them to the press and to the California Secretary of State. In April 2004, then California Secretary of State Kevin Shelly decertified Diebold's touch-screen machines and was quoted in the New York Times as saying their behavior "was fraudulent, despicable and deceitful."

"I fully admit this was a very serious crime; I broke attorney-client privilege - there's no way around it. However, in this limited and single and discreet instance, what was illegal was not necessarily wrong."

Consequences of Whisle Blowing

"On Friday August 13, 2004, 10 LAPD officers and one investigator from the District Attorney's Office showed up on my doorstep at dawn. They were pounding on the door and ringing the doorbell at the same time, yelling, "Felony search warrant! Demand entry!" It scared the hell out of my wife and I! But the police were professionally courteous to us and searched the whole house, taking my computer, my wife's laptop, my cell phones, a scanner, various papers and notebooks off my desk; the search warrant listed anything connected to Diebold or anything connected to the law firm.

"In February 2006, almost two years after the search warrant was served, I was eventually charged with three felonies. In November of that year, I reached a plea agreement in which I plead guilty to one of those felonies. The other two were dropped.

"I paid $10,000 in restitution to the law firm and was put on three years probation. I'm still on probation now. In exchange, the law firm promised not to file a civil lawsuit against me for their financial losses. They were claiming financial losses of over $1 million, and had they launched that suit against me and been successful, it would have kept my wife and I impoverished for the rest of our lives. Avoiding that civil suit was very important for my wife's and my future."

Where's the Whistle-blower Protection?

"Whistle-blower protection is mostly only for civil situations, and there is very little or no legal protection for a whistle blower who commits a crime. My lawyer told me she was quite certain that had I been a Diebold employee working at a Diebold office, and had seen and stolen those documents from Diebold rather than from their lawyers, it would be very unlikely that I would ever be criminally charged. I certainly would have been fired, but I would never have been charged with a crime - no DA would have taken the case.

"I try to be as objective as I can about this. I do acknowledge not only that I committed a crime but that I had to be punished in some way for the crime. If I had been allowed to violate attorney-client privilege without any accountability, it could have possibly weakened attorney-client privilege and made it easier for someone else to steal attorney-client privilege documents and get away with it.

"However, I think they killed a mosquito with a sledge hammer; misdemeanor charges would have sufficed, instead of three felonies with a possible 12 years in prison hanging over my head, but something had to be done to hold me accountable."

If I Had to, I Would Do it Again

"In March 2004, there was a presidential primary in the state of California. The software in these Diebold machines -- the shoddy, badly made, rushed-to-market-before-it's-ready software that also happened to be illegal because it had not received required state certification -- melted down. Voting machines shut down in many parts of Alameda and San Diego counties and as a result, tens of thousands of American citizens were denied their sacred right to vote.

"And, about 11 months after I stole the documents, Diebold machines counted over 30 million votes in the 2004 presidential election. I felt like I had to expose what they were doing. I did what I had to do and I would do it again.

"The right to vote, and to have one's vote counted and have it counted accurately, is a very important right. Many legal minds have said that our nation stands on two pillars: the Constitution and the rights and liberties therein, and clean elections. I would do the same thing again because what Diebold was doing -- lying to the secretary of state, to the taxpayers who were paying for this crappy equipment and the voters -- was undermining the very basis of our whole republic.

"I was very proud to be asked to provide some documentation and research to help Representative Dennis Kucinich write the articles of impeachment which were presented to the House of Representatives on June 10, 2008. I was also very proud to see pretty much all of the information that I provided was used in article 29, which was Conspiracy to Violate Voting Rights Act of 1965.

"In the official government history of the United States, there is an enumeration of many of the crimes George Bush has committed and it's good for the sake of history to at least have this in our official national record. Even if the democratic leadership is too spineless to push for impeachment (which I think is the case) it's never a waste of time to reach for justice. Even if justice is denied, to give up that effort leaves us dead in the water. We must keep trying even if we don't succeed."