What Miller Did: Law and Ethics

Updated.

Both the News-Miner and the Anchorage Daily News are reporting on former Fairbanks North Star Borough Mayor Jim Whitaker’s public comments on what Joe Miller actually did at the Borough that led to his, ah, “resignation.” The Daily News reports,

“What I was informed of at the time was that there were several borough computers that were used to send what they thought were proxy votes for the purpose of voting on the ouster of Randy Ruedrich at the Republican convention,” Whitaker said.

Whitaker said it was his understanding that Miller was trying to get himself elected as state party chairman and using multiple computers to do it. He said his information on this came from one of the borough employees who briefed him on the matter.

So Miller was allegedly was using other folks’ computers, without their permission or knowledge, so he could pretend to be sending votes by someone else in the contest for Republican Party State Chair. He is alleged to have been stuffing the electronic ballot box, using Borough computers. Alaska’s criminal laws have something to say about this.

Warning to readers: Actual statutes and laws are discussed below.

Alaska law provides:

Sec. 11.46.740. Criminal use of computer.

(a) A person commits the offense of criminal use of a computer if, having no right to do so or any reasonable ground to believe the person has such a right, the person knowingly accesses, causes to be accessed, or exceeds the person’s authorized access to a computer, computer system, computer program, computer network, or any part of a computer system or network, and, as a result of or in the course of that access,

. . . . .

(2) introduces false information into a computer, computer system, computer program, or computer network with the intent to damage or enhance the data record or the financial reputation of a person;

(3) introduces false information into a computer, computer system, computer program, or computer network and, with criminal negligence, damages or enhances the data record or the financial reputation of a person;

. . . . .

(c) Criminal use of a computer is a class C felony.

Now WC is not and never has been a prosecutor. But at least at first glance, if Jim Whitaker is telling the truth, Joe Miller has committed all of the elements of the felony of Criminal Use of a Computer. Miller had no right to use those computers, and could not have reasonably believed he had the right to do so. He was accessing a computer network. He was trying to introduce false information – that the “proxies” were legitimate votes. And he was certainly trying to enhance a data record: the number of votes he received.

A Class C felony is punishable by up to five years in jail and a $50,000 fine.

Of course, it’s very easy for Joe Miller to demonstrate Jim Whitaker’s statements are false. All he has to do is produce his personnel file from the Borough – all of his personnel file, no redactions – and the voters can see for themselves if Whitaker is wrong. WC thinks that if we get to see the file, Whitaker will have it mostly right. But until Miller produces that personnel file, voters are going to have to assume Whitaker has it right. Silence is a kind of admission by Miller.

But Joe Miller is also a lawyer, a member of the Alaska Bar Association. He is required to follow the Alaska Rules of Professional Conduct. ARPC 8.4 says,

Rule 8.4. Misconduct.

It is professional misconduct for a lawyer to:

. . . . .

(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;

It sure looks to WC like Miller committed a criminal act, and it does appear to reflect adversely on his honesty and trustworthiness. Stuffing the ballot box does that. And it also looks like Miller engaged in “conduct involving dishonesty, fraud, deceit or misrepresentation.” So Miller’s license to practice law may be in jeopardy, as well.

If he self-reported the event when it happened – turned himself in to the Bar – then maybe this is already resolved by some kind of informal discipline (something called a “private admonition”). But WC is betting Miller’s arrogance wouldn’t let him self-report his conduct. So the Alaska Bar Association may have learned about this for the first time when it read the Anchorage Daily News article.

WC’s not saying the State of Alaska will indict Joe Miller. In the Fourth Judicial District, at least, property crimes seem to have a low priority, and property crimes involving computers are very rarely prosecuted. But you can commit a crime without being convicted of a crime.

Nor is WC saying Joe Miller will be disbarred, or suspended from the practice of law under ARPC 8.4. That’s up to Bar Counsel and the Area Discipline Committee. But lawyers can engage in unethical conduct and not be suspended or disbarred.

What WC is saying is that a sensible voter – not one who would vote for Joe Miller, right or wrong, but a voter who actually thinks – a sensible voter would understand Joe Miller lied to the Republican Party by sending fake votes. He misled Alaska voters by pretending to be honest. His refusal to “answer any more personal questions” is the refuge of a scoundrel, hiding from the truth behind his family.

In both newspapers, there are lots of attacks on Jim Whitaker. But, again, all Miller has to do is produce his personnel file from the Borough – all of his personnel file, no redactions – and the voters can see if Whitaker is wrong.

And Miller’s assumption that no one would ever catch him out over this conduct borders on delusional behavior.

CORRECTED 16 Oct 10: The reference to the DAs Office’s reluctance to prioritize property crimes was corrected to the Fourth Judicial District; WC simply doesn’t know the policies of the other Districts.