Stephen Heller, 44, was sentenced to probation for three years. He had to write an apology to Diebold and its attorneys at the Los Angeles office of the law firm Jones Day, saying there was "no excuse" for sending confidential Diebold legal memos to state elections officials and media.
Those memos, excerpted in both print and online editions of the Oakland Tribune, showed that Diebold executives violated state election laws by fielding unapproved voting software in Alameda County and elsewhere in driving for sales in California, the nation's largest voting systems market.
Despite being warned of those violations, Diebold still pushed to use hastily assembled voting hardware that, in turn, broke down in the March®MDBO¯ 2004 primary.
Soon after, state elections officials decertified Diebold's touch screen voting systems statewide.
Heller said the plea agreement -- in which he pled guilty to illegally "accessing a computer and making copies" -- was the best deal that he and his attorneys thought he could get. If he sticks to the rules of probation for a year, he can ask a judge to reduce his conviction to a misdemeanor and eventually ask its removal from his record. In return for the $10,000 payment, Jones Day's lawyers promised not to sue him for what they have claimed were "seven figures" of damages to the firm and Diebold.
"I feel that this deal was in the best interests of myself and my wife to protect us from further problems but mostly to protect our assets from anything in the future," Heller said Tuesday in a phone interview. "Such a judgment against me would have kept my wife and I impoverished for the rest of our lives."
Critics of electronic voting hailed Heller as a courageous whistleblower last March when the Los Angeles County District Attorney's Office announced his indictment on unauthorized access to a computer, second-degree burglary and receiving stolen goods. The three felonies each carried up to four years in prison.
Cindy Cohn, legal director for the Electronic Frontier Foundation, said the outcome of the case was "a miscarriage of justice."
"I think it's vindictive. It's unfortunate that the lawyers of Jones Day think they can push people around like this and marshal the forces of the legal system to do so," Cohn said. "They should be giving this guy a medal. The secretary of state should be writing him a letter thanking him very much, for helping the people of California and showing a light on what Diebold was really about. Instead what we saw was the prosecutors being really an arm of Jones Day."
A phone message to Jones Day's Los Angeles office seeking comment was not returned.
Just a few weeks before the March 2004 primary election, Heller was temping as a word processor on the 45th floor of Jones Day's offices and heard a firm lawyer on tape describe ways that Diebold might argue its way out of breaking state law and its $12 million Alameda County contract.
The next night, according to investigators who retraced his keystrokes, Heller returned and began printing every Diebold document that he could -- 107 memos, charts, actions plans and emails, about 500 pages in all. The documents landed in the hands of some of Diebold's most vociferous critics at BlackBoxVoting.org. The Oakland Tribune published much of those documents. Jones-Day unsucessfully sued the Tribune to halt publication.
One memo warned that Diebold could be prosecuted for illegally handling votes on Election Day. In one draft letter, Jones Day attorneys suggested that California elections officials did not have jurisdiction to test a voting system component that ended up failing in presidential elections. In another document, Jones Day advised Diebold of the need for sweeping civil and criminal defenses, billed at up to $450,000 a month.
"I'm willing to say I know I committed a very serious crime," Heller said Tuesday. "I can say I wish other involved parties had to answer for some things but that's out of my power."
He urged voters to ask Congress for laws requiring all electronic voting machines to have vote-verified paper trails, open source software, inspection by outside computer experts and be subject to random recounts.
"We must not allow the private corporations to run our elections for us in secret, using secret machines and secret software. The only thing secret about our elections should be the secret ballot," he said.
Contact Ian Hoffman at firstname.lastname@example.org or at (510) 208-6458.