In a case of legal malpractice, the documents aren't protectable and the whistleblower has the right to blow that whistle.

The memos from Diebold's lawyers contain material lies in drafts for responses to a series of 10 questions posed by the secretary of state and the voting panel.

I wondered whether the lawyers were lying to the secretary of state because Diebold misled them or whether it was their decision to tell the lie.

Then, Wednesday at the Voter Panel hearing, the attorney from Jones Day stepped up to testify that it was HIS IDEA to write the information in the way they did. Of course he claimed it was not a lie, but parsed it in such a way that one had to do mental gymnastics in order to follow his argument. My attorney, Lowell Finley, said to me "That kind of behavior sometimes works in corporate law, but that's a guy that should never set foot in front of a jury."

This type of misleading parsing of the truth does not work in front of the public either. The crowd was literally groaning and rolling their eyes as the attorney attempted to defend his lies.

It was in response to the Diebold lawyer that that the panel made the comment to the lawyer and to Urosevich: "So you are either misleading us or lying, which is it?"

If a lawyer participates in lying on formal interogatories, his work cannot be protected as attorney-client privilege. More on what makes this not protectable below.

Another problematic area for the Diebold lawyers was part of the lawyer memos where, when they are discussing what to produce in response to a demand to produce documents, where they make the comment "We have to find out what the secretary of state has." Immediately afterward they write something to this effect: "We want to minimize what we produce."

But their production must be based on what they have, not on what the Secretary of State has. It appears that they were trying to figure out whether they'd get caught if they omitted stuff or lied.

It turns out they did get caught. This became a material issue, because the worst of the misleading, or lying, had to do with whether Diebold uses customized software for its votercard encoder (it does use customized software, but the lawyers written response to the secretary of state said it doesn't). In the lawyer memos:

- The lawyers were wondering which documents from the Diebold FTP site the Secretary of State has -- that's relevant because on that FTP site was proof that Diebold does indeed customize its votercard software. They seem to want to know whether the Secretary of State has that info before they tell him that the votercard stuff is NOT modified (which is what they said).

- At the core of the issue is whether Diebold had to certify its votercard encoder software (yes, if customized; no, if off-the-shelf).

- Diebold never certified it (an illegal procedure, if the votercard software is customized)

- When the lawyers responded that Diebold used off-the-shelf stuff that was never modified, therefore it didn't need to be certified, this was a lie.

- The documents on the FTP site, and James Dunn's testimony (which the lawyers didn't know was coming) proved that Diebold did customize the votercard software and therefore, should have certified it.

- This was a significant and material lie, because it is exactly this votercard software that failed on March 2, (in 40% of the San Diego locations and in nearly 30% of Alameda County locations) causing many voters to be disenfranchised.

Yes, it appears that the lawyers participated in material lies which caused real harm, and that they did so with intent. And this will ultimately make it impossible for them to protect their documents.

Bev

Would this have changed the out come in Cal? The recall.

?

The most problematic thing about the recall that is emerging, but we need more statisticians to weigh in, is that results from the Diebold machines showed an astonishingly disproportionate favoring of Arnold. Something like four times as many Arnold votes, proportionately, as the non-Diebold machines. I haven't examined this data carefully, but it is circulating among the scientists right now.

Also, it appears that California might allow Diebold TSx machines in the November election after all. Diebold promised to recertify them, and the state accepted that offer. This just happened, and it is shocking.

After devastating blows at the hearings, I remarked to those I was with that I was uncomfortable, because I was reading smug -- even arrogant expressions on the Diebold guys.

(My companion remarked that they all look like they came out of a Botox factory anyway, and I have to agree.)

Another Diebold insider was overheard to say, "oh, I think you'll see these machines will be used this fall."

Another insider was overheard to say that Ah-nold was putting pressure on to reinstate Diebold -- but I would classify this last as rumor, since it came to me second hand (though from a reliable source).

This bears more scrutiny.

Bev

If what you say is true, that the Diebold machines gave him 4x the votes, I would like to do a quick analysis of the deviations.

Based on what we KNOW Bushco did in 2000 and 2002, I was 99.999% sure before the election that they would steal it for Arnold.

And if Diebold gets to keep the machines in California, they will steal it for Bush again, if necessary.

Bevharrismail@aol.com -- that way I can just hit "reply" and send the attachments.

the longest to count votes (to even get started counting) were Diebold counties. It was like they had to see what they needed to win before they could start counting. But even if that is overstating the case due to paranoia, it certainly makes no sense that the machines which CA'ians pay millions to have, and which were sold on the promise that they guarantee FAST results, were the slowest counters of votes.

You definitely need more statistical analysis of Diebold results.
Don't worry about smug expressions on the faces of Diebold's lawyers.
Many more battles ahead. Keep up the fight.

Note to self - I owe you and Andy each a check...

A close race, one that helped tip control of the senate.

a panel has now asked a politician to criminally investigate the company.

Now they have a very obvious conflict in interest. They are counting votes for people who belong to the party of the AG who has been asked to make decisions which might result in serious civil and criminal penalties for that company.

At the very least, they should be suspended from counting votes until a determination is made.

Bev,

As I posted on another thread, doesn't California have a "three strikes" law?

Seems there are 17 counties running uncertified software....

Diebold disenfranchised thousands of voters in the last election....

Diebold machines were not even federally certified....

Diebold lied about off the shelf software....


I hope that this becomes a criminal case, because it's going to be very hard to PR a company and it's product undergoing criminal prosecution.

"one had to do mental gymnastics in order to follow his argument"

ALL lawyers believe in this!

The absolute LIE about the voter card customization is another matter alltogether. I worked for 3 different Companies who became involved in MAJOR investigations that lasted from 6 to as long as 9 years! NEVER did any of our attorneys suggest, condone, or approve HIDING ANYTHING! They constantly reminded EVERYONE that it is imperative the you tell the truth and respond to every iquiry and subpoena with complete compliance.

This information DEFINATELY shows malpractice on the part of the Attorneys, but obstruction of justice by Diebold and its legal counsel.

of the meeting covered in the newspaper article GBNC posted Friday, in which your calling Urosevich a "liar" at the meeting was a real vicarious triumph for us readers.

The more we hear, the easier it is for those of us not educated in computer matters to follow with enthusiasm.

What you wrote in this post helped a lot. Thanks.

who wants to do everything I can to keep Diebold from stealing CA in 2004. Where can I send a check? And, it seems that you're not sure if Diebold will be used in the Fall. Has the decision actually been made, or is there time for some local activism? Sorry, I was unclear on that. Thanks for all your work, Bev. Please concentrate on CA in the fall; it's the big enchilada!

Black Box Voting
330 SW 43rd St PMB K547
Renton WA 98055

also by PayPal at http://www.blackboxvoting.org

LOTS of things are happening behind the scenes. Expect this summer to be a very brisk news season.

Bev

have anything to do with chicken boners? (Is it one of the three stories that people were mumbling about yesterday?)

have anything to do with chicken boners?"

Let me answer...

No...no chicken boners there. :)

Was just reading another story about the SCOTUS this week, and on their docket Tuesday is the case against Cheny. Part of the Cheny story involves Scalia "Turkey Hunting" with Cheny. Chicken bones????

wrong...

Please play again.

of touching the machines....

How can a company under investigation for attempting to disenfranchise CA voters be allowed to count the votes this November????????????????????????????????????

What is going on here? Have the people who decide these things been bought off???

I can hardly believe my eyes as I read this stuff. Another thread on GD discusses how we are now in a fascist state. If CA allows Diebold to participate IN ANY WAY during the November election, I will have to agree that the fascist fix is finally and firmly in place. :scared:

after Diebold and other machines are used.

I like the idea AP listed in this thread. Can you picture having BIG boxes marked...

"Don't trust virtual ballots?

Take our exit survey and drop your completed form in our

:kick: PHYSICAL BALLOT BOX :kick:

We'll compare results later!

(What ya' think Bob? :) )

you can use this email address to contact the California voter Fraud division

E-Mail: Elections@ss.ca.gov

Lets all give them some thing to think about

And in other breaking news, the sky is blue!

.....and concocting lies to be told under oath. FWIW. :evilgrin:

:kick:

But often times it's hard to tell the difference.

They have to be very artful about it -- if they discover what they are saying is not true, they can be disbarred for entering it as evidence.

Lawyers also have to provide full documentation when answering directives from the secretary of state. They cannot say "let's see what he has first"

What Diebold lawyers did was very different from the normal parsing, spinning, and re-framing that lawyers do. What Diebold lawyers did was offer a known lie to the secretary of state about a critical matter (voting) and this specific lie caused many, many people to lose their vote.

It doesn't get much worse than that.

Bev

Lawyers making something up?

Feel free to cut, paste, and send / the more the better

Dear Sirs

I have been reading in the news about recent events concerning Diebold election Systems and the obvious deceptions concerning the systems used in the last primary elections. It is apparent to anyone following the series of news articles emanating from these stories the Diebold personnel have clearly sought to deceive your office.

At this time I would advise and support you to seek criminal and civil prosecution in this case. There is No Moral ground to be sought in sparing these people from the full extent of the law. There is nothing more important to a democracy then a complete count of the vote

Respectfully

.....Very well written, thanks for posting it! :)

Do you think you could send a copy to the States Attorney's office?

Anyone in California who's interested can call them toll-free at the number below.

Contact The California Office of the Attorney General

PUBLIC INQUIRY UNIT

The Attorney General's Public Inquiry Unit seeks to assist you in answering questions on a wide variety of issues ranging from consumer fraud to public safety. It is generally a clearinghouse for consumer complaints and requests for information.

You can contact the Public Inquiry Unit at 916 322 3360 or, within California, by calling 1 800 952 5225.

MAILING ADDRESS

California Department of Justice
Public Inquiry Unit
P.O. Box 944255
Sacramento, CA 94244-2550

Lets show them assholes what DU really stands for

Dicking U for trying to Dick me first...!!!

:kick:

but I am willing. Because every little helps. THIS IS TOO IMPORTANT FOR THE UNITED STATES!!!!
Should we start a different thread asking for additional contributions?

in the next few days. It is an extremely important project and what I will need at that point is introductions to bigger checkbooks. I guarantee they'll fund it. They'll want to do so through a 501c3 nonprofit, which is on a fast track now.

I'll post something as we gear up for this during the coming week. Thanks!

Bev

:kick:

look at the contract between Diebold and the State of CA and any amendments to that contract. Subpoena these documents and the case is closed.

if the software was COTS (commercial off the shelf) it would be stated in the contract or supporting documents and a particular release number would be referenced. If there were any customizations authorized by the state of CA, money would have to pass hands (Diebold doesn't work for free!) and there would have to be stated in the contract or there would have to be an amendment to the contract.

If there are no documents supporting these changes, then the customization is illegal. Emails between low level employees are not enough. An officer of the corporation or someone who is designated with legal authority to sign contracts must sign off on these changes. Same on the government side. There are criminal penalties for spending government money without proper authorization.

If there is no paper trail at all, then what happened transpired via verbal conversations and is totally unauthorized. Get the software described in the contract and then detail the differences between that and what is deployed.

QED -- you can knock this one out real fast -- all the corporate spin machine will not "save" them. I think Diebold is culpable no matter which way you look at it. You've caught them red handed.

...I think the contracts are between the counties and the companies, with the overarching requirement to obey California State law.

Several violations, by Diebold, but also by county officials who purchased voting systems that were not legal under California law.

They may have been told they "would be" legal in time for elections, but they were not even federally certified let alone state certified.

Culpability here extends to the county level. They could entertain bids on equipment, but they certainly should have signed no contracts until that equipment had met state requirements.

While we're at it, why hasn't the Voting Systems Board certified the new Avante system yet, when they certified the old one?

What's so different about handling voter verified paper ballots vs. optical scan?

Why do they hold up a company doing the right thing with a good product, for the same old gang that is desparately trying to maintain no paper, especially for 2004?

Why can't the Diebold Tsx counties void their contracts and purchase Avante- or Accupoll- or TruVote- instead? Why doesn't the VSB get on the ball and get systems certified that comply with their own mandate for paper by 2006? I believe that Accupoll and Avante are already Federally certified, if only waiting for NASED to assign their numbers. (Meaning, already through the ITA)

Why the delay?

FYI, what is the liklihood of Diebold getting the Tsx system federally certified by November anyway? Seems the ITA is a big bottleneck right now. Systems that meet 2002 standards, like Accupoll and Avante, were submitted way ahead of time. The major vendors are seriously behind. Could it be that officials are delaying to give time for other vendors to catch up? Time they do not deserve?

a crime. And should subject the attorneys participating to sanctions such as suspension or disbarment.

Perhaps a little note to the attorneys' state bar ethics enforcement people would be in order?