Whistle-Blower or Thief in Diebold Case?

A whistle-blower to some, a thief to others, Stephen Heller says he’s a regular guy, not an activist or a member of any political group.

But charged last month in Los Angeles with three felonies for allegedly stealing damaging documents about voting machine manufacturer Diebold Election Systems, Heller has become a hero to digital rights and political activists who say he helped expose a threat to the election system.

“My wife would never describe me as someone on the front lines of anything, and I wouldn’t either,” Heller said in a recent interview. “I’m not politically active except I’ve voted since I was 18.”

Prosecutors say Heller, a 43-year-old actor and resident of Van Nuys, took more than 500 pages of Diebold-related documents, including memos from the company’s attorneys at the Jones Day law firm. The memos suggested that the company might have broken state law by providing Alameda County with voting machines that had not been certified by the state.

“This case is not about whistle-blowing. It’s about theft of attorney-client privileged material from an attorney’s office,” Los Angeles County district attorney spokeswoman Sandi Gibbons said.

But activists and bloggers -- including the California Voter Foundation; Black Box Voting, an electronic voting group; and the liberal www.huffingtonpost.com website -- say the purloined documents, some of which turned up on the Oakland Tribune website, helped spur a state crackdown on Diebold.

“People should be thanking Stephen Heller because ultimately he helped our secretary of state stop illegal acts by Diebold,” said Cindy Coen, legal director of the Electronic Frontier Foundation, a digital rights group based in San Francisco.

Heller has pleaded not guilty to three counts of felony access to computer data, commercial burglary and receiving stolen property.

Although state law protects whistle-blowers from retaliation by employers, it does not preclude criminal prosecution.

On the advice of his lawyer, Heller declined to discuss the facts of his case, but agreed to talk more generally.

Brought up in a small dairy farming town in upstate New York, Heller moved to Los Angeles in 1997 after years of waiting tables and performing in small theaters in Chicago. Heller said he had stopped just short of finishing a theater degree at DePaul University to dedicate himself to an acting career.

In Los Angeles, he managed to land a few small roles on television shows and in commercials. But acting failed to pay the bills and Heller refused to wait any more tables. So he brushed up on his typing skills and found work as a word processor -- a decent, less stressful way to make ends meet, he said.

He lives in a quaint, one-story home with his wife, an actress and writer who also works as a word processor. They have three cats and a dog.

Heller began a three-month stint as a temporary worker at the Los Angeles office of Jones Day in December 2003. One of his assignments was transcribing an attorney’s tapes on legal issues facing a major client: Diebold.

The name was familiar because of media attention surrounding the company and its new touch-screen voting systems. Heller, a news junkie, said he had had no prior dealings with the company.

Bev Harris, founder of Black Box Voting, told investigators that Heller met her in a park in Ventura County in early 2004 and gave her the documents, which she turned over to the secretary of state and the Oakland Tribune.

“What Stephen did was the best of citizenry,” Harris said.

Harris and fellow activist Jim March, later joined by the state attorney general, had already sued Diebold in 2003 for allegedly failing to certify the voting system.

The lawsuit gained traction when Diebold’s touch-screen systems failed in March 2004. Because of a battery drain, the screens could not display the proper ballot, and poll workers in San Diego County had to turn away some early voters. Alameda County residents had to use paper ballots.

Diebold eventually settled the suit for $2.6 million. The state banned use of its machines, but the ban was reversed this year and the machines were certified for use in 17 counties.

Gibbons said Heller’s alleged theft had nothing to do with the attorney general’s suit or a later investigation of Diebold by the secretary of state’s office.

Members of a state commission considering the ban on Diebold, however, did question witnesses about the leaked documents.

Jones Day sued the Oakland Tribune over the leak, but later dropped the case and referred the alleged theft to authorities.

Diebold declined to comment on Heller’s prosecution. Jones Day officials have said his actions forced them to return $1 million in legal fees to Diebold and damaged the reputation of one of their lawyers.

John Majoras, a partner at Jones Day, said: “As far we are aware, this is a criminal matter. The authorities are taking care of it, and we will watch to see what comes of it.”

Heller said he learned that he was under investigation when a team of district attorney investigators and police descended on his Van Nuys home in August 2004 and seized his computer, personal papers and address book.

“For the first few minutes, I thought this is a mistake ... just cooperate and they’ll find out that I’m not that drug dealer they’re looking for,” Heller said. “But that wasn’t the case.”

Heller eventually was fired by the temporary employment agency, and remained jobless for eight months before landing work in a related field. He declined to identify his job for fear that it would be jeopardized by the publicity.

D.A. spokeswoman Jane Robison said defendants such as Heller, with no criminal record, typically receive probation if convicted.

But Heller’s lawyer said he doesn’t want to risk a conviction.

“The felony conviction itself will prohibit many kinds of employment for him,” attorney Blair Berk said. “He’ll lose his right of citizenship to vote.”

The Electronic Frontier Foundation and the Assn. of Computing Machinery, an information technology group, are searching for a pro bono attorney to help represent Heller, who said he has exhausted his savings on legal fees.

Black Box Voting has donated $10,000 to the Stephen Heller Legal Defense Fund.

“I’m optimistic that the right thing is going to be done here,” Heller said.

“Hopefully, I’ll get a chance to properly defend myself and justice will prevail.”