WHISTLE-BLOWER PROTECTION DEPENDS ON WHO HEARS WHISTLE
By Tamadhur Al-Aqeel
Daily Journal Staff Writer
Stephen Heller, a temporary worker for Jones Day
in
On the tape, attorney Scott Shaw is heard
describing how the firm's client, Diebold Election
Systems, violated a $12 million contract with the state of
After transcribing the tape into a memorandum,
Heller, an out-of-work actor, began searching Jones Day's computer archives,
downloading and printing anything he found about Diebold
- roughly 500 pages - over the next four days in January 2004.
Three months later, in the March 2004
presidential primary, Diebold's voting machines in
In April, a month after the election called into
question Diebold's voting machines, four of the Jones
Day memos were posted on the Oakland Tribune's Web site. Heller had given them
to a voting-rights activist who gave them to a reporter.
Now, two years later, Los Angeles District
Attorney Steve Cooley has charged Heller with three felonies: unlawful access
to computer files, commercial burglary, and receiving stolen property. A judge
is expected Monday to set a preliminary hearing date in Heller's case.
Heller's supporters say he should not be
prosecuted, that he should be protected under whistle-blower law because he
made public information of interest to all
"There is a way if a person wants to
provide information of misconduct to authorities," district attorney
spokeswoman Sandi Gibbons said, "[but] it doesn't protect them from
attorney-client privilege violations."
Michael Kohn, general counsel of the
"The press is perfectly acceptable,"
Kohn said. The "grandfather of all whistle-blowers," Daniel Ellsberg,
gave the "Pentagon Papers" to the New York Times, Kohn said.
Charges against Ellsberg, who stole the
documents from Santa Monica-based Rand Corp., where he worked, were eventually
dropped.
The 1990s case of Dr. Jeffrey Wigand has many
similarities to Heller's case. Wigand revealed to the television news magazine
"60 Minutes" evidence the tobacco industry manipulated nicotine
levels in cigarettes to make them more addictive. Wigand decided to become a whistle-blower
after looking at documents smuggled out of law firm Wyatt, Tarrant &
Coombs, which represented tobacco company Brown & Williamson. The documents
were given to him by a concerned paralegal, Merrell Williams. In June 1994, the
New York Times ran long articles based on thousands of documents taken from
Brown & Williamson's lawyers. Furthermore, UC San Francisco medical
professor Stanton Glantz put the documents on the
Internet.
Both federal and state whistle-blower statues
protect an employee or former employee from retaliation, legal or otherwise.
The laws, however, leave prosecutorial discretion to law enforcement agencies.
In the Wigand case, Brown &
Williamson hired a public relations firm to pitch news stories that called into
question Wigand's credibility. Wigand sued the tobacco company and won.
When the Diebold memos
were made public, Jones Day launched an internal investigation of the firm's
word processing department to find the person responsible for leaking sensitive
internal documents. A trail of computer access codes, building pass keys, and
the word processing department's own computer serial number tracking system led
them to Heller. In a detailed letter to Los Angles police detectives Juan
Martinez and Brian Collins, Jones Day partner Brian O'Neill outlined the firm's
investigative methods and findings. "During our meeting you raised a
question of whether copying documents from a computer system such as the Jones
Day system would comprise a violation of [the state Penal Code]. Clearly such
conduct would violate the statue," O'Neill wrote.
"What we've done here is how you would
expect a victim of a crime would react," said Jones Day attorney John Majoras, who brought client Diebold
to the firm.
Gibbons said Heller is a thief. To qualify as a
whistle-blower, Heller would have had to give the documents to the Los Angeles
Police Department or some other government agency, she said.
"But it doesn't make any difference,"
Gibbons said. "He's not charged with what he did with the documents. He's
charged with taking them."
"That makes no sense," Kohn said.
"Saying if he turned them over to government he would have been protected
- there's no law that provides for that."
Whether the documents were turned over to the
government or to the press, the same "crime" was committed, Kohn
said. The important part is "the fact that he turned them over with no
self-interest. [The district attorney] should refuse to prosecute. They should
be protecting someone who shed light on crime."
Gillian Lester, a visiting law professor at Boalt Hall, said the fact Heller was working for Diebold's attorneys limits his
ability to be a whistle-blower.
"Attorney-client privilege is
sacrosanct," Lester said. "If he were working for Diebold
when he took the documents, it would have been different."
Again, Kohn disagrees. Attorney-client privilege
is not the cover it used to be, he said. "Attorney-client privilege does
not protect clients from perpetrating a fraud."
Under the Sarbanes-Oxley law Congress passed in
2002 to clean up corporate fraud, lawyers are required to expose clients if
they are lying to investors or to the Securities and Exchange Commission. And,
recently, the 5th U.S. Circuit Court of Appeals in
"[Heller] engaged in what the government
considered a criminal act. [But] that doesn't define someone as a
whistle-blower," Kohn said. "What does is their loyalty to the
truth."
When the Tribune referred to the leaked Diebold memos in an April 2004 story and posted them on its
Web site, Jones Day didn't go after Heller. The firm sued the Tribune's parent
company, MediaNews Group. Days later, the law firm
dropped the suit. MediaNews Group still is trying to
get a court to order Jones Day to pay the newspaper's legal fees for defending
what the newspaper claims was a frivolous lawsuit.
Majoras said the law
firm continues to believe the lawsuit was justified and therefore should not
have to pay legal fees.
"The motivation for dropping the suit was
because the information was already out in the public," Majoras said. "So litigating to get something back was
pretty fruitless."
Federal prosecutors and the state attorney
general both looked at the Heller case but did not file charges.
Spokesman Tom Dresslar
said Attorney General Bill Lockyer never considered
prosecuting Heller. Gibbons said the district attorney took the case
"because the crime happened [in
Kohn, who wrote a book on whistle-blower law,
said, "The charges are bogus. It's not commercial burglary because
[Heller] didn't gain financially by taking the documents. Receiving stolen
property is a bogus charge because the law firm and the attorney cannot hold as
property evidence of fraud."
Heller accessed the computer files using a pass
code given to him by Jones Day.
Kohn said Jones Day had some options to help
their client if they knew Diebold had made false
statements to
The firm also could "convince the client to
do the right thing. If they fail to do either of those, [Heller's] actions were
sound and proper because neither the client or these
attorneys were seeking redress."
But Majoras said
Heller was a firm employee and had a duty to abide by the rules of attorney-client
privilege.
"We are constitutionally guaranteed the
right to counsel," he said, "and a free and
unfettered ability to share information with your counsel. Anything that
undercuts attorney-client privilege is something we should be concerned about."
Heller did sign a confidentiality agreement but
only after he had worked at Jones Day for six weeks and taken most of the Diedbold documents.
Cindy Cohn, legal director of the Electronic
Frontier Foundation, said it was only after the Jones Day memos became public
that Diebold faced real consequences for its actions;
Shelley decertified the company's voting machines, and Lockyer
joined the 2003 whistle-blower suit brought by activists Bev
Harris and Jim March.
"Diebold was able
to deny that they were violating the law, and had been denying they broke the
law in the public debate," Cohn said. The company and its supporters
successfully portrayed Harris and a small band of activists upset about the
voting machines as fringe elements, she said. After the memos surfaced,
"we were able to demonstrate that not only were they not kooks, they were
right."
Majoras denied the
public release of the memos was a watershed moment.
"Diebold Election
Systems was having ongoing contact with various elections officials in
Heller gave the Jones Day memos to Harris. She
passed them along to the Tribune. She also says the memos were given to a
secretary of state elections investigator during public hearings on e-voting.
The investigator, Michael Wagaman, said in an
interview with the LAPD that he recalled someone giving him a computer disk
during the hearings but that he never looked at the files.
Along with giving the memos to the newspaper,
Harris posted 15 of them on her Web site.
The attorney general asserted Diebold violated
Electronic voting issues statewide triggered an
investigation of Diebold by Shelley.
Asked why Diebold
wasn't forced to fully reimburse the counties for the costs of the failed
machines, Dresslar said there were other things Diebold promised to do that weren't outlined in the
settlement. The company agreed to pay for alternative methods of voting in
areas where its machines had failed.
"The people of