The 'Diebold Whistleblower' Sees His Charges Reduced to a Misdemeanor, But Unlike Republicans Who Have Committed Far More Serious Crimes, Heller Continues to Pay

Reflections on Selective Criminal Punishment in Bush's America...

Steve Heller Byon 12/2/2007, 5:57pm PT

Guest Blogged by Stephen Heller

I am no longer a felon.

In brief, I became known to some as the "Diebold Whistleblower" when, in January of 2004, I stole and exposed legal documents [PDF] proving that Diebold Election Systems, Inc. was using and planned to continue using illegal, uncertified software in their California voting machines. (By the way, Diebold recently changed its name to Premier Election Solutions, but don't let that fool you; it's still the same bunch of idiots.) Details about my case can be found here and here [PDF].

The documents I stole were covered under attorney-client privilege, so my theft was a serious crime. In February of 2006 I was charged with three felonies. On November 20, 2006, I plead guilty to one felony count of unauthorized access to a computer, and in exchange for my guilty plea and a restitution payment of $10,000 to the law firm from which I stole the documents, the law firm promised they wouldn't bring a civil suit against me, and I was put on felony probation instead of being sent to jail. The term of probation was to be at least one year, and as much as three years.

Now, one year after my guilty plea, because I've stayed out of trouble and because I'm a first offender, the judge has reduced my felony to a misdemeanor. Sometime in 2008, my lawyers will petition the court to have my misdemeanor expunged.

The bad part is that the most troublesome aspect of my probation is still in force. Before I can accept a job at which I would use a computer networked to one or more other computers (basically any job for which I'd be qualified), any potential employer must write to the judge in my case, tell him that they know about my conviction and that they still want to hire me, and then we have to wait until the judge responds with a "yes" or a "no" before I can accept the job and start work (and then only if the judge says "yes"). So as you can see, employers will be falling all over themselves to hire me.

Yeah, right.

Meanwhile, my wife (an actor, filmmaker and writer) certainly hasn't lost her sense of humor. She had been calling me Felonious Punk, but now that I'm no longer a felon, she's switched to Mister Meanor. Ain't it great being married to a comedy writer?

To be clear, breaking attorney-client privilege is a very serious crime, and I accept responsibility for what I did. I'm still being punished for it, and so far the punishment has cost my wife and me over $210,000 - and counting. $210,000 is an enormous amount of money to us. My wife and I have paid and are continuing to pay a very high price for my crime.

But, as we're not Republicans, we might have expected that.

Which got me thinking about other crimes in America that have recently been committed or alleged, and what's happened to those involved. Among the first of many, Lewis "Scooter" Libby comes to mind...

*****

Libby lied to a grand jury and was convicted of obstruction of justice and perjury. But he wasn't punished and never will be. His old pal, the twice un-elected President, commuted his sentence, and the costs of his legal defense have been covered by his rich Republican friends.

In my case, the punishment for my crime has nearly bankrupted my wife and me. Okay; I did the crime and I accept responsibility for it. But why does Scooter get to walk away from his crime without a scratch?

Because IOKIYAR.

And why did Ol' Scoot lie to the grand jury and obstruct justice? To protect his bosses in the White House. But what could Dear Leader and his Minions have done that they would need protection? Why, nothing more than expose an undercover C.I.A. agent. Outing a C.I.A. agent has been called treason by many, including Dear Leader's father. Pretty serious crime, outing a C.I.A. agent, especially an agent whose specialty was nuclear proliferation, one of the most serious threats facing our nation and the world.

So Scooter's obstruction of justice protected people who did something George H.W. Bush described as treasonous. That's a very serious crime, at least as serious as violating attorney-client privilege, don't you think? But no punishment for Scooter Libby, because IOKIYAR.

Alberto "Abu Ghraib" Gonzales has hired a high-priced criminal defense attorney, he's refused to answer questions from the U.S. Inspector General, and there is now a defense fund for him. Rumor has it that the Inspector General might recommend criminal prosecution for alleged witness tampering and lying under oath during testimony to congress.

It won't happen.

Abu Gonzales will never be brought up on charges, and even if he is, Bush will muzzle any subpoenaed witnesses from his "administration" with claims of executive privilege, and order all documents that could prove Gonzales' guilt be classified as a matter of national security. And even if Abu Gonzales was charged, tried and convicted (Satan would have to buy ice skates), Bush would pardon him in seconds. He'll never be held accountable for his crimes, because IOKIYAR.

In the meantime, Abu makes a nifty $40,000 for giving a speech in Florida. This, while my wife and I struggle to pay my health insurance and our mortgage, and the "gotta write to the judge and get his permission before I can accept a job" provision of my probation has thus far prevented me from obtaining any employment. But my wife and I aren't Republicans, so we deserve it. Right?

*****

Speaking of Abu Gonzales, what about torture? Torture is a pretty horrible crime, one of the worst. But our new Attorney General said he doesn't know if water boarding is torture or not. Attorney General Mukasey really ought to do some reading. According to Jurist Legal News and Research, "During the U.S.-Philippine War (1899-1902), five Army officers…were convicted by courts-martial for employing the 'water cure' in interrogating Philippine prisoners. [snip] Army juries rejected the defense of 'military necessity,' recognizing the water cure for what it is. The Army's Judge Advocate General…derisively noted, 'the resort to torture is attempted to be justified…as the habitual method of obtaining information from individual insurgents.'" [emphasis added] Sound familiar?

In 1922, the Mississippi Supreme Court, in the case White v. State, 182, 91 So. 903, 904 (Miss. 1922) reversed the murder conviction of a young black man who had allegedly killed a white man because the defendant's confession was obtained by using the "water cure." Wrote the court:

The "water cure" appears to have consisted of pouring water from a dipper into the nose of appellant, so as to strangle him, thus causing pain and horror, for the purpose of forcing a confession. Under these barbarous circumstances the appellant readily confessed...

Think about that. In 1922, when the Klan was at the height of its power, the Mississippi Supreme Court threw out the confession of a black man accused of killing a white man because of the use of the "water cure," which the Court called "barbarous." Yet George W. Bush insists that water boarding isn't torture, and Attorney General Mukasey can't find it within himself to disagree.

And more recently, "U.S. domestic courts describe 'the water cure' and 'water torture' as human rights violations, and a means to coerce confessions, in In Re Estate of Ferdinand E. Marcos (D. Hawaii, 1995) and U.S. v. Lee (5th Cir., 1984).

Oh, I know, Bush says "We don't torture." But he's a liar. He's redefined what torture is with the help of Jay Bybee and John Yoo. They claim that it's only torture if it "would be equivalent to the loss of major organs or leading to imminent death." So if you use a prisoner as a human floor mop to clean his own urine, or rape him with a chemical light, or dislocate his arms, that's not torture, according to Bush and Abu Gonzales.

A guy could redefine wife beating and insist that slapping his wife with an open hand isn't beating her, only punching her with a closed fist constitutes a "beating," and therefore if he slaps her he's not guilty of beating his wife. It's no different from what Bush has done in regards to torture.

Of course no judge would let a man get away with his "slapping is not beating" argument; hitting one's spouse is against the law, period. But so is torture. Bush's decisions on torture are war crimes, they are "violation[s] of statutory and treaty-based law."

But he will get away with it because IOKIYAR.

A few low-level soldiers have been punished for it, as they should be. And General Janis Karpinski has been punished. But she has been made the scapegoat for the brass and the politicians. I believe she shares in the responsibility for what happened, but the approval for torture and the orders to torture go way past her and all the way to the top. Bush. Cheney. Rumsfeld. Gonzales. Cheney again. Rumsfeld again. When will these men be held accountable and punished for allowing, approving and even ordering torture?

Never. Because IOKIYAR.

*****

Even if you're not necessarily a Republican, if you commit crimes for them or in their name, you'll not be held accountable. Like say, if you work for Blackwater, and you kill a bunch of people for no reason. There might be an "investigation" (so-called) but don't worry; you'll get immunity. Because IOKIY (working for) AR.

*****

And what about what's happened to the Justice Department? John McKay, the fired former U.S. attorney for Western Washington, said "there was a conspiracy to politicize the Justice Department."

Richard Thornburg, former Attorney General under Regan and Bush 41 - Thornburg's certainly no liberal or Democrat - flat-out declared that the Justice Department "targeted Democratic officeholders while looking the other way when presented with evidence of misconduct by Republican officials."

Here's just one example: in the case of the now-imprisoned former governor of Alabama Don Siegelman (a Democrat naturally), we learn that the person who fingered Siegelman also had some pretty incriminating things to say about two Republicans --- Alabama's former attorney general Jeff Sessions, now a U.S. Senator, and William Pryor Jr., Sessions' successor as attorney general and now a federal judge. Yet "none of the Republicans whose campaigns he fingered were investigated in the case, let alone prosecuted." That's because IOKIYAR.

Forty-four former state attorneys general, including both Republicans and Democrats, say the case "call[s] into question the basic fairness that is the linchpin of our system of justice."

"The prosecution may have been a political hit" involving Karl Rove, Bill Canary, a Republican operative and a Karl Rove protégé, Canary's wife, the United States attorney in Montgomery, and Alice Martin, the United States attorney in Birmingham.

According to Scott Horton, writing for Harper's, "It was recently disclosed that the two most senior career prosecutors assigned to the Siegelman case had concluded that the facts did not justify the pursuit of a criminal case against the former governor."

More --- lots more --- on the Siegelman case can be found here. But why take the time to read it? None of the people who allegedly committed crimes in regards to Siegelman's prosecution will be held accountable or even investigated. IOKIYAR.

*****

Let's talk about the telecom companies and a little thing called the Fourth Amendment. Big Telecom helped the Bush administration spy on Americans without a warrant. They claim they were just doing their patriotic duty in helping the administration protect the country after the attacks of September 11th. But they lie, because we now know that they began this unconstitutional violation of our rights six months BEFORE September 11. And now, some federal judges are granting search warrants without probable cause, letting the Feds spy on you and use your cell phones to track you.

Who will go to jail, or even just pay a fine for violating the Fourth Amendment of the Constitution? No one. In fact, there is a strong push to give the telecoms retroactive immunity, despite the fact that legal scholars say it would set a dangerous precedent.

But after all, the telecoms helped a Republican administration violate the constitution, and IOKIY (helping) AR.

*****

And then there's my favorite issue, Election Integrity. We in the EI community continue to try to save our democratic republic, even in the face of the Bush junta's criminal tactics. Where to begin listing them?

Bradley Schlozman brought indictments for voter registration fraud just days before an election, thereby violating the Justice Department's own rules against filing election-related indictments close to an election. He later was forced to admit he could have waited until after the election, but instead chose to time the indictments in an attempt to influence voters away from the presumed winner, a Democrat.

Schlozman has also "admitted that he'd once urged hiring certain prosecutors for his office based on their political affiliation. It's against civil service laws to do so."

Emails have been obtained showing that the Republican National Committee engaged in voter suppression in five states. This vote caging effort was spearheaded by Tim Griffin, former opposition researcher for the RNC, and was done in league with the White House and Bush/Cheney '04 campaign officials. (Griffin was eventually promoted to the White House to serve as an aide to Karl Rove, then appointed Interim U.S. Attorney for Arkansas before resigning under a teary cloud in the U.S. Attorney Purge scandal earlier this year.)

The "loyal Bushies" also blocked attempts to enforce laws protecting the rights of minority voters. Hans von Spakovsky, "a former Justice Department political appointee, blocked career lawyers from filing at least three lawsuits charging local and county governments with violating the voting rights of African-Americans and other minorities, seven former senior department employees charged."

"Hans von Spakovsky also derailed at least two investigations into possible voter discrimination, the former employees of the Voting Rights Section said in interviews and in a letter to the Senate Rules and Administration Committee. They urged the panel to reject von Spakovsky's nomination to the Federal Election Commission."

But Hans won't get in any trouble for it, and he may well be confirmed to the FEC. Because IOKIYAR.

In recent years, one of the worst cases of voter suppression and intimidation occurred in Ohio on the day of the 2004 election. I was in Columbus, Ohio that day helping Democratic GOTV efforts, and I saw Jim Crow alive and well and strutting through the streets of inner-city Columbus. Attorneys have filed voter suppression suits in the state, but it doesn't look they'll get very far, because the evidence was destroyed.

According to BRAD BLOG and RAW STORY, ballots and election records from the 2004 election have been 'accidentally' destroyed, despite a federal order to preserve them, in 56 out of Ohio's 88 counties.

Cliff Arnebeck, an attorney working for the King Lincoln Bronzeville Neighborhood Association, said "The extent of the destruction of records is consistent with the covering up of the fraud that we believe occurred in the presidential election."

So who will be punished for destroying the evidence that a federal judge had ordered must be preserved? No one. Because IOKIY (protecting) AR.

Going back a little further, on Election Day in 2002 the Republicans illegally mounted a phone jamming scam in New Hampshire targeting the state's Democratic GOTV phone lines. There is ample evidence that the effort was coordinated by the White House. James Tobin, Bush's New England campaign chairman, was convicted of telephone harassment, but his conviction was overturned on appeal. He is awaiting retrial. Meanwhile, the RNC paid Tobin's $2.5 million bill for legal fees.

(I also had a defense fund, and people from all over America and many parts of the world contributed to it. It helped a lot, and my wife and I were and still are very grateful. It didn't cover all my legal bills, but I understand that my wife and I don't deserve the kind of deep-pocket help that nice folks like Mr. Tobin or Mr. Libby got, because I'm not a Republican and my crime didn't help Republicans. It's definitely not OKIY not AR.)

Who will be held accountable for these election crimes, crimes that strike at the very heart of our democracy? No one. Because (say it with me now) IOKIYAR.

*****

But don't worry; the Rule of Law is not dead in America, at least not yet. The really dangerous criminals do get punished for their crimes.

For example, just recently I read about Katie White. She's a war mom, with a son in Afghanistan and another son who has been in Iraq. In spring of this year, she and some other people blocked the doors of the U.S. District Courthouse in Erie, Pennsylvania to protest the war. Katie's sentence was a $500 fine, but she refused to pay it, so she was sentenced to five days in jail.

During the 2004 Republican National Convention, NYC police rounded up thousands of people, some of them protesters, some of them journalists, some just bystanders.

In 2006 two women wore t-shirts with politically-related phrases on them to the State of the Union address. The one whose son had been killed in Iraq was arrested, dragged out in handcuffs and detained for hours. The other was later asked politely to leave the chamber. The former was Cindy Sheehan, the latter was, of course, a Republican.

On Veteran's Day this year, over a dozen veterans (including a 92-year-old vet) who are opposed to the Iraq war were arrested and charged with disturbing a public assembly. Except they weren't disturbing anything. They were standing in silent protest at a Veteran's Day event from which they had been barred from speaking because they don't support the war.

And then there are the people who were arrested for displaying a banner outside of the New York City public library. The cops lied in the police report. They charged them with "obstructing the entire intersection so no cars or pedestrians could pass through" and with "refusal to obey a police order and leading a parade through the intersection without a permit" even though the video of the incident showed that they had never left the library steps.

Those damn dirty hippie America-hating protestors and phony soldiers had better learn. This is a law 'n order nation, and in this country we're tough on crime.

Unless you're a Republican.

If you're a Republican and you order people to torture prisoners, or you spy on Americans without warrants, or you suppress legally registered voters, or you "out" a C.I.A. agent, or you lie under oath and obstruct justice, or you engage in selective prosecution of your political opponents and ignore criminal acts committed by your political allies, or you turn the Justice Department into an arm of the Republican party, hell, even if you have a few beers and shoot an old man in the face, don't worry about it.

You won't be in any trouble for it, because… well, you get the idea.



