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Mike, you and I are cut from the same cloth. Perhpas we’re naive to even speak of the inner play at work within the juris fabric, and as purists we are out-raged to discover practices that breach moral fibre, albeit between the banter of courtroom gun-slingers (meaning, those posturing lawyers who breach rules and law for the ultimate victory, the win), yet you’ve just written and related how it is standard practice.
From my perspective I recognize how “lying within inner court-room dialogue” can be fabricated, or construed as “normal procedure”, and eventually to be decided as “proper” (or not) as a subject to the discression of the bench, each case unique, and each case with the eventual explanation in layman’s terms.
In other words, “Yeah, that happens all the time; there’s just nothing we can do about it.”
Let me clarify why I say we’re cut from the same cloth:
I’m a purist. I refuse to believe that our system of checks and balances is so corrupt that it will no longer work; I refuse to believe that everyone lies, (even though we witness most often those who do, we cannot condemn those that do not); and I believe that when we witness our judicial system’s participants who procede with “lying” as protocol, we need to, as citizens, fight it.
I will always refuse to yield this crucial point, because to yield to the notion that “everyone’s corrupt” would undermine the existence of our “representative democrocy” since we need, by definition, to trust our representatives; otherwise, why even have our system? The bigger question, as a derivative, could become, “Why trust anyone, since everyone lies?”
(Do I need to even answer?)
In cases outside the scope of our representative democracy (those issues not defined by the legislative nor executive branches) we have only the courts to interpret the law, as passed. And with legal interpretation, the participants are lawyers.
You and I, Mike, want to kick them the hell out when they stand in the midst of honor and willingly break the honor rules that make our system even feasible, and yet some that have been annointed within the public sector feel immune, and have not only acted that way, don’t give a damn about the honor of our representative democracy and the power that lies within honesty.
ARE WE THE ONLY ONES WHO ARE WILLING TO FIGHT?
There are those of us out here who are old-fashioned, die-hard purists who belive it the concept that “not everyone lies”… but when they do, we’ll fight like hell to show them the rope.
IT’S AGAINST THE LAW TO MISLEAD A GRAND JURY OR A JUDGE
The July 2005 issue of “California’s Lawyer” features a story written by Eric Berkowitz headlined, “Why I Stopped Litigating After 20 Years”. Upon receiving the magazine and after reading the letters to the editor, I went right for this story. It is about a lawyer who discontinued his practice of civil litigation and participation in the Judicial Branch of California’s government. The lawyer decided to retain his shingle but entered University of Southern California to study journalism.
He writes, “Instead of indulging in introspection, I worked harder. There were still times when what happened in the court (both good and bad) seemed random, and lawyers and parties routinely lied, but I learned to accept those frustrations as part of the Real World over which I was gaining mastery.” Here are statements from someone who does not know the Sixteen to One mine or me. He clearly writes that lawyers lie in the Superior Courts of California. I knew it to be true in Sierra County, and I suspected it was true in other counties as well. Think about his statement. Lawyers are routinely lying to the judge! Could Mister Berkowitz qualify in a civil trial as an expert witness to testify that the California District Attorney Association pack is courtroom liars? Could his opinion reach the jurors? Of course.
A lie is intended to shield the truth or mislead the Court. If its effect will mislead the Court, it is an unlawful act. It breaks a California law regarding those members of the California State Bar, who appear in the courtroom. “Lawyers and parties routinely lied” is an indictment of perjury. Mister Berkowitz continues, “Rather than hiding harmful information from a court or jury, I will focus on showing all sides of an issue”. Wow. Couple this admission of his past behavior as a lawyer as hiding exculpatory evidence (harmful information to his client) and his witnessing routinely lying lawyers in the courtroom. He or other lawyers may pass the “smell test” lawfully, ethically and professionally. In Miller v Filter as the case develops, testimony will be given that the behaviors of the defendants fit the indictment of Mister Berkowitz. They will not pass the “smell test”. Maybe lawyers should be unchallenged in lying to each other over the phones or anywhere, anywhere that is except the courtroom. Maybe their clients expect and demand that of them. But in Sierra County the client of the five defendants is the people. The people expect the truth. The harmful evidences with held both from the grand jury and the courtroom were exculpatory or a lie. The notion of harm was to themselves not their client (the people). The people suffered revenue and other social benefits because of the behavior of attorney Gale Filter, Kyle Hedum, Anthony Patchett and Denise Mejlszenkier.
This magazine is supposed to reach many of the 200,000 California’s lawyers. The Original Sixteen to One Mine web site probably is read by only a couple of dozen. More of California lawyers should evaluate the “smell test” in their profession and even take a position: suborn perjury or cleanse the courtroom. A by-product of great social benefit from our lawsuit will be ‘collateral good’. The more lawyers who see the illegal, unethical and unprofessional behavior of the five defendants, the more hastened the rebuilding of trust between the public and those who enter our courtrooms to argue civil or criminal disputes. When lawyers either see that California will disbar or suspend lawyers for failures within Rules of the Court and for violations of the Penal Code, they may rise to the occasion and change their ways about perjury in a courtroom or misleading the judge. If they are not presented with the opportunity, the public will never know. Help spread the challenge.
Yes, it is late to be working at a computer; however, for those of you who indicated they were planning to come to Downieville for the court date on July 8, here is an important update. The Superior Court called and left a message that we just received two hours ago. The date of our hearing has been changed to August 16, 2005. No explanation was left on the message machine. Frankly, I am disappointed. The bad guys are using the system in a specious manner and they will lose. They have not even answered the complaint, which was filed over thirteen months ago. They continue to mislead the Court.
A hearty band of experts gathered in Alleghany tonight to ponder the issues, including 149 pages of nonsense submitted to the Court by Mister Knox on behalf of the nasty lawyers, who conspired to put Original Sixteen to One Mine, Inc out of business and imprison its two top employees. (I cooked dinner for this group of “good guys” this very evening).
It should be a concern to all Californians and Americans when members of the prestigious Judicial branch of our government abuse the intent of another prestigious branch of government, the Legislative. ( It should be more of a concern to the judges and other lawyers who practice their trade with ethics and an understanding of the law.) That is what is happening now and what happened three years ago. That is why we Californians and Americans created a third branch of government, the Judicial, to judge the machinations between the Executive and Legislative. Stay tuned.
FILED
MAY 23,2005
SUPERIOR COURT OF CALIFORNIA COUNTY OF SIERRA
MICHAEL MILLER, et al,
Plaintiffs
Vs.
Sierra County Case No. 6293 Judicial Council # 126841-05
GALE FILTER, et at,
Defendants
DETERMINATION ON MOTION TO DISQUALIFY JUDGE
C.C.P. 170.1
On May 12,2005, the above matter was referred by the Judicial Council of California to the Superior Court of San Joaquin County, Judge Bob W. McNatt, under Assignment Number 126841-05 for the determination of a Petition to Disqualify Judge Stanley Young, Sierra County Superior Court.
The record provided included:
-Notice of Motion for Disqualification filed by Defendants on April 5, 2005 -Memorandum of Points and Authorities in Support of the Motion
-The Declaration of Thomas Knox in Support of the Motion, with attachments -Defendants’ Request for Judicial Notice with four attachments
-Answer of Judge Young tiled on April 11, 2005
~
“The greatest injustices proceed from those who pursue excess, not by those who are driven by necessity.”
_AristotleThe legal machinations of Thomas S. Knox are raising interest from other legal practitioners. He has filed a motion to change the venue from Sierra County, a motion using a theory that his clients being denied free speech (even though they break the law), and a motion to disqualify judge Stanley Young. The following filing is the determination of a third party regarding Judge Young’s position. (Judge Young determined that he should not be disqualified). It is worth pondering Thomas Knox’s understanding of law by Judge McNatt’s decision to deny the disqualification. He writes: “Tellingly, Defendants cite no case authority for this novel proposition. The reason is clear; there is none.” And “The speciousness of this argument is apparent.”
This Court, pursuant to C.C.P. Section 170.3(C) (6) deems it unnecessary to calendar the matter for further hearing or argument.
Although the history of the litigation appears extensive, and the Motion itself somewhat confused, when stripped to its essence, Defendants appear to argue that Judge Young should not hear the case because:
1. He might have overheard a courthouse conversation between a party and the former District Attorney concerning this matter, and therefore became a “key witness”; and
2. Judge Young has prior knowledge of the facts surrounding this civil action because he also heard and granted a motion to dismiss in the prior related criminal case.
Neither of these grounds constitutes sufficient reason to disqualify Judge Young.
First, judges overhear conversations between parties and counsel virtually every day in and around courthouses. To hold that such events make judges “key witnesses” is to create a powerful tool for “judge shopping.” To require only a naked allegation that a judge might have heard something in the courthouse in order to disqualify that judge is clearly not a practice to be sanctioned. This conclusion is buttressed by the Answer of Judge Young, in which he clearly states under oath that he has no knowledge of such an alleged conversation.
The second stated ground for disqualification is that Judge Young has prior knowledge of the underlying facts from his handling of the prior criminal matter. Tellingly, Defendants cite no case authority for this novel proposition. The reason is clear; there is none. If accepted, Defendants’ position would mean that a judge who conducted the preliminary hearing in a criminal matter would thereafter be barred from conducting the trial because he or she would be familiar with the facts of the case. The speciousness of this argument is apparent. It is irrelevant that a party in discovery identified the trial judge in the criminal action as “a person with knowledge of the facts.”
In support of their Motion to Disqualify, Defendants have provided extensive documentation, including (inter alia) medical reports, discovery responses, OSHA communications, and mine safety regulations, asking that all these be judicially noticed. While a court may take judicial notice of the existence of certain things, it “…cannot take
notice of the truth of hearsay statements in decisions or court files, including pleadings,
affidavits, testimony,…” etc. (emphasis added), [People v. Woodell (1998) 17 Cal.4 969B]. A court is authorized to judicially notice the fact that a declaration has been filed in superior court proceedings per Evidence Code Section 450, but this authority does not extend to the truth of matters contained in those declarations [People v. Pantoja (2004)2122 Cal.App.4th 1, 12]. The law is clear that none of the documents provided by the
moving parties can be judicially noticed for the truth of the contents.
The Motion for Disqualification of Judge Young is denied.
May 17,2005Judge Bob W. McNatt Sitting on Assignment 3
The time is now, to find one pocket and deflect the other. “The other” in this reference is the CDAA.
I think it correct for OAu and Mike Miller to pursue the damages caused by the CDAA. I also know that whether or not such pursiut will be fruitful in the hands of a court, is not stopping the vigilance of the crew.
I could see the spark in their eyes. Yes, I made a visit, as all should. No idle action at the mine, whether or not we see it in pictures!
The April 6th court date was postponed today for lack of a Judge. A new court date has not been set.
Why does a motion to ask for more time to meet a deadline even exist? I can understand if there is some extraordinary special reason that perhaps a second chance should be granted. If I file my car registration late or pay a parking ticket late, I also pay the price. The judge should accept the late notice, make the bad guys pay, and we move forward. Can someone explain? An interested shareholder.
On February 28, 2005, Michael Miller filed a Notice of Default against all defendants for repeated late filings. Later that day Knox’s firm filed a Notice of Motion and Motion for Change of Venue. The Notice of Default precludes defendants from any action against Miller until it is settled.
On March 4, Knox’s law firm filed an Ex Parte Application for Order Shortening Time for Motion to Set Aside Default and set up a telephonic conference call on Monday, March 7, 2005 at 10:00am. Judge Stanley Young will hear the motion.
On March 7, 2005, a phone conference was held. In addition to Judge Young, George Gilmour, Michael Miller and a lawyer from Knox’s firm were on the line. Mister Knox did not participate. Defendants wanted an immediate ruling on the Notice of Default. Gilmour had agreed to extend the late filing time so the issue was between Miller and Filter et al. Miller filed the notice because Knox broke the deal he had made with Miller to recognize and honor the plaintiffs as separate participants in the case. Knox had assured Miller that his (Miller’s demand that Gilmour could not speak for him) would be honored in the future. Knox broke the deal in less than one day, prompting Miller to file his Notice of Default.
The judge decided the issue and refused to rule on the Ex Parte Application to Set Aside the Default at this time, allowing all parties to properly prepare and submit their position to the court. The ruling on the Notice of Default will be held prior to the hearing on the Motion to Change Venue on April 6, at 1:30 p.m. in Downieville.
George reminds me that the game of law is a war of wordsmanship. I interpret this as a combination of the choice and arrangement of the words as well as the arrangement of the shipper. We are in warfare in this game. Not all games are warfare even though they are competitive.
I was raised with games and know gamesmanship. About twenty years ago, well after I realized that WW III’s battleground is in the courtroom, my background and experiences qualified me to join in destroying the opponent in WW III. Anyone can play, not just members of the State Bar. Californians codified our individual right to justice or overcome judicial oppression. Californians demanded a level of performance of lawyers and codified a State Bar Club. The State Bar doctrines state the rules of the game. I lacked the judicial training but have gained perspective and more with each battle. Here is a taste of what I know about professionalism:
It is a team game requiring the finest effort of specific high tone performances. As carrying on the California 49ers culture, my exposure to gold and the professional football team of 49ers provided some training I lacked. Yes, my decisions are woven with 16 to 20 annual doses of observing teamwork between the line, the offense and defense, the theater of it all and the opponents. I single out only Jerry Rice as the one player who opened my mind to the roughness of professionalism and the ballerina aptitudes of one man with life threatening consequences. Ten years ago I handed Jerry Rice the Whopper at the Grass Valley fairgrounds. He was thrilled to hold it, and I was thrilled to stand next to him and feast on his features and provide him that opportunity to observe.
The following words were included as dogma in the last section of our opposition to their demurrer heard on October 5. After you have read them to yourself, read them out loud. At some time take the effort to listen to someone read the transcript of a California Supreme Court decision.
Conclusion
“The profession of the law possesses extraordinary powers. Lawyers
can make the arrogant humble and the weak strong. In control of the
course of litigation and armed with the knowledge of right and wrong,
they are most able to abjure illegal or tortuous conduct, it is their
duty to so. As occupants of a high public trust and officers of the
Court, they are expected to confirm their behavior in legal affairs to a
higher standard of rectitude and spirit of obedience than those who are
willing to endure the dust of transgression.
“Guided by oath, duty and obligation, the lawyer’s path avoids the
vices from which the virtuous abstain. Thus it ill suits the profession
to seek immunity for injuries inflicted while engaged in legal warfare
under the protective tarpaulin of the privilege for ‘judicial
proceedings.'”Kimmel v. Goland (1990) 51 Cal.3d 202,214, 271 Cal.Rptr. 191,
793 P.2d.524.
That is precisely what this case is all about, and that is what
defendants seek by this demurrer.
__________________________
GEORGE R. GILMOUR
Attorney for Plaintiff
SIXTEEN-TO-ONE MINE, INC.
_________________________
MICHAEL MILLER
Plaintiff in Propria
PersonaThe following are the words of the founders of California. They are quoted from our first constitution. The signers’ names remain alive in many cities and countrysides from San Diego to Sacramento. The words remain live 154 years later. Law has history as its foundation. The Californios laid the foundation of California on hard rock civil rights embracing private rights and public rights in harmony. Brevet Brig. General, U.S.A., and Governor of California left the people to form a government for themselves with a proclamation issued on October 12,1849, at Monterey.
(From History of California)
Prelude: WE THE PEOPLE OF CALIFORNIA, GRATEFUL TO ALMIGHTY GOD FOR OUR FREEDOM, IN ORDER TO SECURE ITS BLESSINGS, DO ESTABLISH THIS CONSTITUTION: —
ARTICLE I.
DECLARATION OF RIGHTS
SEC. 8. No person shall be held to answer for a capital or otherwise infamous crime (except in cases of impeachment, and in cases of militia when in actual service, and the land and naval forces in time of war, or which this State may keep with the consent of Congress in time of peace, and in cases of petit larceny under the regulation of the Legislature,) unless on presentment or indictment of a grand jury; and in any trial in any court whatever, the party accused shall be allowed to appear and defend in person and with counsel, as in civil actions. No person shall be subject to be twice put in jeopardy for the same offence; nor shall he be compelled, in any criminal case, to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.
SEC. 9. Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions on indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted: and the jury shall have the right to determine the law and the fact.
R. SEMPLE,
President of the Convention and Delegate from Benecia
WM. G. MARCY, Secretary.J.Aram,
C. T. Botts,
E. Brown,
J. A. Carillo
J. M. Covarrubias,
E. O. Crosby,
P. De La Guerra,
L. Dent,
M. Dominguez,
K. H. Dimmick,
A. J. Ellis,
S. C. Foster,
E. Gilbert,
W. M. Gwinn,
H. W. Halleck,
Julian Hanks,
L. W. Hastings,
Henry Hill,
J. Hobson,
J. McH. Hollingsworth,
J. D. Hoppe,
J. M. Jones,
T. O. Larkin,
Francis J. Lippitt,
B. S. Lippincott,
M. M. McCarver,
John McDougal,
B. F. Moore,
Myron Norton,
P. Ord,
Miguel Pedrorena,
A. M. Pico,
R. M. Price,
Hugo Reed,
Jacinto Rodriguez,
Pedro Sansevaine,
W. E. Shannon,
W. S. Sherwood,
J. R. Snyder,
A. Stearns,
W. M. Steuart,
J. A. Sutter,
Henry A. Tefft,
S. L. Vermule,
M. G. Vallejo,
J. Walker,
O. M. WozencraftTo the ROGUE PROSECUTION
How easy it was to disarm me in our courtroom! Judge Young did not error in granting the CDAA crowd’s demand that in the interest of their safety I was to surrender all of my guns to the Sheriff in Downieville. The judge heard only one side and it was recorded. Your motion ordering me to turn in my guns by 5pm was granted. It was because of my respect for the Downieville Courtroom with its history that I complied. Lead lawyer, Gale Filter, testified that his and his co-conspirators were fearful for their safety because, “Michael Miller, your honor, has an alarming FBI record.”
The word of a government prosecutor favors their presentations over others. Rightly so. No California public servant prosecutor would purposely mislead the court and be held to the Statues authorizing the State Bar and its membership. Perjury has been lost as unacceptable behavior in our dignified courtroom but not in Downiville. That law holds sway over the evidence holds true with me. You rogue lawyers chose themselves as more righteous than the law and well below my standards of constitutional California. CDAA falsified its representation of me, which greatly damaged plaintiff Original Sixteen To One Mine, INC.
Now for the lawyers representing CDAA and the “fab four”, the interests of whatever insurance companyis paying you: your clients are carpetbaggers who lied before the judge. They also misled our grand jury, which ordered its indictment and our arrest. That explains their arrogance in no uncertain words and terms. Go figure!
WHAT IF THEY KNEW THEY WERE GOING TO GET AN IMPASSIBLE FIGHT, WHICH IS WHAT THEY WANTED AND THEY KNEW THEY WOULD GET.
The story unfolds: Assume that his “I” tory will be predictable in direction but not outcome. History is that which happened a moment ago. George and I concluded another great day for a drive, a discussion at the Sierra County Arts Council meeting in Downieville and through the day we would discuss our suit against the “prosecutor rogues”. Yesterday, we did they same thing only we drove to a remote Nevada gold mine and back to Alleghany, discussing the cases to be presented in trial. We speculated as to whether the defendants recognized that they would be put on trial. Our tale is spiced with lawyers named as defendants. Of course they are represented by lawyers! We see lawyers spouting words all over the place, collecting money from each other as bees collect honey.
George practices law very well and I know the salient moments of this suit, beginning when felony charges were raised against me. We independently and together discovered other people knowledgeable about the defendants and their bosses. We also know the jury will affirm our suit, accusations and prosecution; we have the law, the facts and the evidence to convict them. We talked about damages and will there be money to collect. Even if the four individuals declare bankruptcy the money owed remains. If they get disbarred from “lawyering” in California and flee to another state, our claim is likely worthless; however this issue plays out, “Mister Pocket” is assured but could yield little gold.
They are arrogant, perfunctory, dangerous and passionate as they created a cause of action against us. Their attack crippled 1500 victims directly and thousands indirectly.
One thousand four hundred are shareholders. The remaining 100 were housed and fed from the sixteen to one gold. George and I talked over the task beyond producing, directing and performing in the case before a judge and jury. A historical pattern of behavior points a course and leads to privatizing criminal prosecutions. We will succeed, but the 180,000 members of the California State Bar may never know of our case.The remaining thirty-five million inhabitants or a significant majority should learn of the verdict. California has no privileged class of residents as written into the State constitution. Exposure steadily expands.
WHAT IF THEY KNEW THEY WERE GOING TO GET AN IMPASSIBLE FIGHT, WHICH IS WHAT THEY WANTED AND THEY KNEW THEY WOULD GET.
The following is a proposed filing for Sierra County Superior Court. If it is submitted, it will be moved to the court topic. Where does the public non-priviledged class begin to stop statute breaking (law) offifers of California. Well it already has begun. No lawyer should be allowed to tarnish the judicial branch by misleading the judge in judicial areas. I believe Tom Knox, with his firm’s knowledge, disrespected my courtroom in Downieville.
Superior Court in Sierra County
Downieville, CaTo the Honorable_________, presiding judge on October 5, 2004 or later
Rule for filing a sanction.
Sanctions for Tom Knox have a substantial trail of evidence to support a hearing by a review commission of peers. He has knowingly misled the Court in his testifying for his firm’s argument in its demurrer. He presented to you supportive arguments orally, even after you informed us that you had read the filings. You asked for anything new from the record. He eventually offered none and spoke and argued his case. But that alone is not enough of an affront to the Court to suggest sanctions against Mr. Knox’s affront to the profession of law.
This is. He continued to harp on the fact that his defendants should flee from a trial because plaintiffs failed to file a required claim against the government. The fact: claims were filed, timely and denied by Sierra County about May 6, 2003. He knowingly misrepresented facts that are required to be identified to the Court by legislative action. He knew of the claims or should have known of them from public records and the input from his clients and interrogatories from the plaintiff. He knowingly misled you.
Officers of the Court are held to professional canons, codes and law. Knowingly misleading the judge is not allowed according to the California Constitution. My associates and friends want the law enforced, when a member of our State Bar knowingly misleads or unknowingly commits perjury in this Sierra County Courtroom. Tom Knox, State Bar Number____, knew or should have known that claims for damages were timely filed for Original Sixteen To One Mine, Inc. by and for Michael Meister Miller.
Although I am not an Officer of the Court by means of membership in the State Bar, I will certify the truthfulness of the contents of my allegation that punishable violations of the public trust were committed by Tom Knox. I offer to present in a judicial conduct review hearing those public records.
Respectfully,
Michael M. Miller
Superior court of the State of California
County Of Sierra
Order regarding the Demurrer Hearing
Case No. 6293
Hearing Date: May 28, 2004
Time: 2:30 P.M.
Dept: 1The Demurrer of the Defendants Gale Filter, Denise Mejlszenkier, Anthony Patchett, Kyle Hedum, and the California District Attorneys Association (CDAA), came on regularly for hearing on May 28, 2004 at 2:30 p.m. before the Honorable Richard A Haugner. Defendants and moving parties appeared by Knox, Lemmon and Anapolsky, LLP and Thomas S. Knox. Plaintiff and responding party Michael M. Miller appeared in proprier persona. Plaintiff Original Sixteen To One Mine, Inc. appeared by George R. Gilmour, Esq.
The Court having reviewed the pleadings and papers on file with the court and having heard oral argument and good cause appearing, it is hereby ordered:
1. Defendants’ demurrer to the First Cause of Action for malicious prosecution is overruled;
2. Defendants’ demurrer to the Second Cause of Action for intentional infliction of emotional distress is overruled;
3. Defendants’ demurrer to the Third Cause of Action for intentional interference with prospective economic advantage is sustained and Plaintiffs shall have until July 15, 2004 to amend their Complaint should wish to do so.THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
BEFORE THE GRAND JURY OF THE COUNTY OF SIERRATHE PEOPLE OF THE STATE OF CALIFORNIA
Plaintiff,
vs.
MICHAEL MEISTER MILLER, JONATHAN
FARRELL, and ORIGINAL SIXTEEN TO ONE
MINE, INCORPORATED,
Defendants.OCTOBER 28 and 29, 2002
INDICTMENT
Honorable CHARLES EGAN GOFF, Judge
APPEARANCES:
For the People: California District Attorney’s Association
731 K Street
Fourth Floor
Sacramento, CA 95814
By: GALE FILTER
Deputy District AttorneyDENISE MEJLSZENKIER
Deputy District AttorneyANTHONY PATCHETT
Deputy District AttorneyJudy Bishop, CSR. No. 2261
October 28, 2002
9:10 a.m.
THE COURT: Good morning, ladies and gentlemen. I see that our good clerk has put my name tag up here, that’s important because my standard introduction for that is that I don’t want you to have the impression that the mistakes I’m making are to be blamed for some other judge. But anyway, my name is Charles Egan Goff, and it’s a pleasure to be here in this most beautiful community. I’ve only been here to work once before. It was a pleasure then, I’m sure it shall be this time. Now, these are members of our grand jury, just for the record?
THE CLERK: Yes.
THE COURT: Madam Clerk?
THE CLERK: Yes.
THE COURT: I’m going to introduce to you the persons who will be presenting matters to you. I’m sure you know our court personnel here because this is a beautiful and small community, and I’m sure a most friendly one. That’s been my experience the one time I’ve been here previously. I’ll introduce our regular court personnel to you so that you will know. I’m sure you know them anyway. But our clerk, of course, is Jan Hamilton, and she’s being assisted –
MR. FILTER: Excuse me one second, I believe there’s some people in the room that are not grand jurors and we should ask them to leave till we convene.
THE COURT: Oh, I understood they were all members of the grand jury. I apologize for that, ladies and gentlemen.
MR. FILTER: If you just step outside we’ll get you shortly.
THE COURT: Thank you for calling that to my attention. My presumption was, my understanding was that all folks in the room were members of the grand jury except, of course, for the official personnel. Our assistant clerk is Regina Belleque. Am I pronouncing that correctly?
THE CLERK: Belleque.
THE COURT: I’ll get it here. That’s a new name to me. And our reporter, a very important member of the group, is Judy Bishop. Now, the team that will be presenting the information, we call it evidence, to you are members of the California District Attorney’s Association, a special statewide group. And this group is especially experienced and learned, I must say, after chatting with them, in the matters which will be presented to you. And I’m going to introduce them to you at this time. Mr. Gale Filter is, shall we say, the team leader. Is that appropriate, Mr. Filter?
MR. FILTER: It depends what Denise says (laughter).
THE COURT: All right. A sense of humor is essential, I know that. And next to him is Denise Mejlszenkier. Did I pronounce that —
MS. MEJLSZENKIER: Yes.
THE COURT: And over on my left also in that same row is Anthony Patchett, also a member of that team. And I’m advised, and was complimented by Mr. Filter, to mention that he is retired from the Los Angeles District Attorney’s Office, a prestigious legal organization. And let’s see, I’ve also met Ms. Kelley, the foreperson of this grand jury. Now, I want to express my appreciation to people who come in as jurors, either grand jurors or petty jurors. Petty jurors, it doesn’t mean they’re petty people certainly, petty means small, and grand jury is a big jury, more than 12 ordinarily, sometimes often over 20, I think; am I not correct?
MR. PATCHETT: Yes, sir.
THE COURT: And the petty jury, of course, is 12, sometimes even as small as six, so that’s why we use that term. And I just want to remind you, as I do all jurors in all cases, that when you’re called for this service you’re not serving me, you’re not serving the court system, you’re not serving the, quote, government as such, you are serving all of your fellow citizens, including yourselves, and it’s very important for you to understand. Please understand you are not here working for me, I am here working for you. You pay my salary. Never thought of that, did you? Who owns the courthouse? And who elects the government that puts us here? You are in charge. And I might say we all know we are going through troublous times, questions are raised about the government. Never forget, you are the government. We work for you, and you better make us do it. And they’re the thing that I emphasize to juries. Wonder why nonlawyers and nonjudges do these things, sit as jurors and make these decisions? It’s very simple. I want to explain that to you just briefly. It may have been explained to you before. That just because someone has been to law school and has practiced law and sat as a judge doesn’t mean that he or she has more common sense or more practical everyday nuts and bolts experience in the world than the rest of society. I always call them normal people. That’s a joke, of course. Once you’ve been through law school, why you’re not a normie anymore, you’re one of them. But your experience in life, or common sense, are what cut it. A verdict, you’re not here to do a verdict, but a verdict, ver comes from the world verily. Verily I say unto you. It’s verification, trust. Dict is speak. So when the jury comes in with a verdict they’re telling you what the real facts are, the truth. And in a sense that’s what you will be doing here in a little different way. I tell everybody, all jurors this, that before when I was trying cases as a lawyer I always had my hair cut. I used to have hair, and I’d have a haircut before trial, and my barber was Jack Muldoon. Jack, I would tell Jack about the case I was going to try and Jack would invariably, every single time, come up with some point of view that I had never thought about because I had stuck with legal stuff, and gives me an odd way of looking at the world. Jack talked to everybody everyday, and he knew the world much better than I did. So that’s why we have juries. You decide the true facts of the case and the judge is supposed to tell you the law. And the judge, by the way, is supposed to tell you the law in a way that you understand. If you don’t understand it, raise your hand. The judge is working for you, make them tell you what it means; okay? So if that happens in this hearing, what are you talking about, Judge? What’s that word mean? It’s okay, that’s what we want you to do. Now, I’m going to read to you a very well prepared statement regarding what we’re to do here. And by the way, it’s a special honor for me to be in this court. One of the great judges in California, recognized by all lawyers and all judges as just almost a Superman, came from this county, and was a judge in this county, and should have been on the Supreme Court of California at least, was Judge Winslow Christian. You probably all know him. And it’s a great honor to sit here where he has sat. One of the great people. Now, it becomes the duty of the court, and we always say the court, that means me. I don’t know why they put the court in here. It’s my job to tell you, or instruct you as to the law of the state bearing upon the services you will perform as grand jurors and the process known as a criminal indictment. Each of you will be provided with a written copy of these instructions for use during your jury service. Under our system of law only those crimes which are triable as felonies may be the subject of grand jury indictment. What’s a felony? A felony is something, the crime for which someone may be sent to State Prison if found guilty, or pleads guilty. Now, there are, as you know, crimes of lesser magnitude called misdemeanors for which someone may not be sent to State Prison for a year. I suppose 364 days would be all right. And you cannot indict for any of the misdemeanor offenses. The grand jury, whenever criminal causes are being investigated before it, must appoint a competent stenographic reporter to be sworn and report the testimony that may be given in such causes, and to transcribe the same in all cases where an indictment is returned or an accusation presented. Just for the record, has our stenographic reporter been duly sworn?
THE CLERK: Not for this session. I have an oath I could give her.
THE COURT: I think that might be appropriate. (Reporter sworn).
THE COURT: All right. And the following sentence I should have added: If your foreperson notifies the court of the day, time and place during which the grand jury will receive evidence, the Court will arrange for a court reporter; and of course that has been done appropriately. And she is present and with us. And the transcript is extremely important. And I have said many times that the court reporter is the judge’s best friend, because if something comes up and people don’t recall, at least I don’t recall everything word for word, and it’s very important that we have that record for later on, that protects everybody, the grand jurors, parties presenting, attorneys presenting the matter, and the Judge. Now, before the grand jury considers a charge against any person the foreperson shall state to these present the matter to be considered and shall name the person who will be charged with an offense in connection therewith. The foreperson shall then direct any member who has a state of mind in reference to the case of the party which will prevent him or her from acting impartially and without prejudice to the substantial rights of the parties to retire from the grand jury session while such matter is under investigation. Now, is that appropriately done at this time, Madam Clerk, or shall we wait until I’ve given the preliminary?
THE CLERK: We can wait.
THE COURT: Let’s do that. In the investigation of a criminal charge the grand jury can receive no other evidence than such is given by witnesses produced and sworn before them, or furnished by legal documentary evidence, or the deposition of a witness. And the deposition, of course, is taken under oath. And a deposition, if taken, would be presented through a court reporter, or prepared by a court reporter. The grand jury can receive none but legal evidence, and the best evidence in degree to the exclusion of hearsay or other secondary evidence. Basically, I might add, that nonhearsay evidence, that is admissible evidence, is evidence that the witness has personally perceived through one of his or her five senses. Hearsay is not admitted, except rarely, special exceptions to the rule, because the person who is testifying has not personally perceived the information. Presentation of evidence should be left to the attorney advising to the grand jury. Now, we have three here so we’re going to have a real super session. Questions by individual grand jurors should be presented in writing to such attorney. If you have questions please put them in writing. Our grand jurors been given note pads I presume?
FILTER: They have been, Your Honor.
THE COURT: They have, so, swell. Those are very important. You may take notes of the testimony if you desire, but if you have questions please put them in writing, and the attorney presenting the evidence will determine if it’s a question which will lead to legally admissible evidence. That’s why they’re in writing. Direct questioning by grand jurors may create an appearance of an inquisition to the prejudice of the proceedings. Another good reason for the written questions. The grand jury is not bound to hear evidence for the defendant, but it is the duty of the grand jurors to weigh all the evidence submitted to them, and when they have reasons to believe that other evidence — now, this is important, ladies and gentlemen — when they have reason to believe that other evidence within their reach will explain away the charge they should order such evidence to be produced and for that purpose may require the district attorney to issue process for the witnesses. Now, process means basically a subpoena to bring them into court. Now, that’s something that a petty jury, that is a trial jury, doesn’t have the authority to do. They might make a suggestion to do that, but they can’t require it; you can. In some cases it would be safe and proper to notify a defendant that you are investigating his or her case and invite that defendant to appear and to testify before you; in other cases, however, you might defeat justice by notifying the accused person that you are investigating his or her case. A sound discretion and judgment in such matters are required of you. When a person appearing before the grand jury is concerned in the investigation, such that an indictment or accusation may be found against such person, that person may testify only at his or her own voluntary request. Now, that’s a Fifth Amendment right. You can’t be required to make statements anywhere, at any time, which would tend to show that you violated any law. That’s a basic constitutional right. A procedure for use in such situations is set forth in the appendix to these instructions. Now the law presumes that a person who is the subject of a grand jury hearing is not indictable until such evidence has been presented to warrant an indictment. He or she, that is the prospective defendant, cannot be indicted unless eight or more grand jurors agree that the evidence presented satisfies the proof required by law. The standard of proof you must use to indict is the same as that before a magistrate at a preliminary examination. That is evidence presented to the grand jury which, if unexplained or uncontradicted, would warrant the grand jury in entertaining a strong suspicion that the accused has committed the offense or offenses for which the indictment is sought. Probable cause means that such state of facts as would lead a person of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion that a crime has been committed and the person accused has committed the crime. If you find an indictment in any case you should proceed as follows: First, you will determine by a vote of at least eight grand jurors, each of whom has been present during the presentation of all the evidence, in favor of indicting a certain person for a given crime. You will then notify the district attorney or deputy district attorney to whom the case is assigned to draft an indictment charging that person with the crime. Thereupon, when the indictment is prepared by the district attorney and is brought before you and read before you, you should thereafter make a second vote in favor of adopting the form of indictment. The indictment must have endorsed upon the back of it words “a true bill”, and that endorsement must be signed by the foreperson of the grand jury. If an indictment is found the names and witnesses examined before the grand jury, or whose depositions have been read before you, must be inserted at the foot of the indictment before it is presented to the Court. The indictment that is so found and endorsed must be brought into the Court by the grand jury and must be — and must, by the foreperson, be presented to the Court, that is the Judge, and filed by the clerk as a record of the court, all in the presence of the grand jury. In the event an indictment is presented to you as grand jurors the fact is it must be kept completely secret and must not be disclosed to anyone until the defendant has been arrested. Now, this concludes your instructions at this time, and I’m confident you will fairly carry out the duties you have been sworn to uphold. And I notice that all grand jurors have paid rapt attention to what I’ve been stating to them. A copy of this will be given to you so that you don’t have to feel you have to memorize everything I’ve said, stated orally to you; that is not humanly possible. And some of these instructions have been rather complex and you will need to review them. Now, another important thing I should have said earlier, we’re working for you. Once again we are on your payroll, you are in charge. You are the grand jury of this county, you have tremendous authority, which is appropriate. Citizens must retain that authority in a democracy; you’ve got it. Now, one of our jobs — my job in particular is to see that I satisfy you, that you understand what is stated to you clearly. We all have the gross disadvantage of a legal education and legal experience. Of course I mean that jokingly. I love this work, I really love it, but we have our own peculiar vocabulary, and any business or profession has it. If any of you are, say, carpenters or mechanics you use terms all the time that I haven’t any idea about. My wife, a former architect, will not permit me to hammer a nail in our house. I’m serious, she won’t let me do it because that’s beyond my ability. And on the other hand, we certainly don’t expect you to understand legal terms, legal phraseology. Now remember, we’re presenting this to you as a service to you. If we don’t do it so you understand it clearly, just tell us. That’s our job. If we don’t make it clear to you we are not doing our job. And as I’ve told the attorneys, some judges for whom I appeared as a lawyer many times, get very fuzzy and sometimes upset if it’s called to their attention something simple like that. That doesn’t bother me a bit, I don’t care about that. I just want to do the job right. So if I don’t speak clearly, if you don’t hear me, if I use a phrase or a word you do not understand, raise your hand. You’re running this show; okay? Any question about it? Just ’cause I have a robe on it doesn’t mean anything; okay? All right. Anything further before we proceed? The record should show that I’ve exhausted everyone and no one has responded. (laughter). All right. Mr. Filter, what do you suggest?
MR. FILTER: We need to select the alternate.
THE COURT: Yes. And as I understand we have two alternates available. One of our — one of your members is unable to serve and is not present, unfortunately, and what we shall do now is ask our members of the grand jury to retire from the courtroom so we can most conveniently, for everybody concerned, particularly the prospective alternates, come in here and give them a little breathing room rather than sitting in rather small judge’s chambers. Now, I want to read something to you that’s extremely important.
JUROR: Are we supposed to go?
THE COURT: Oh, no. My wife reminds me, you’ll appreciate the fact my wife says I talk too much, I’m sure you agree by this time. I bought her a little pin. You might get a kick out of this, a little humor. A little pin I sent to her, she’s out in Hawaii recovering from minor surgery. So I sent this to her. I picked it up in a little sort of everything store in Truckee. It says, “Have I said you may speak”? I’m going to pin that on her.
JUROR: That goes over big.
THE COURT: But this is extremely important to you, ladies and gentlemen, for a lot of very practical reasons. I won’t enumerate them for you, as I say, they’re very practical reasons that will come to your mind. They’re legal reasons because they’re practical. And I’m going to — this indicates that I should state this to witnesses after they have testified, but it applies to our grand jurors, too. You probably heard this before. I must admonish you not to discuss or impart at any time outside of this jury room the questions that have been asked of any witness in regard to this matter, or the answers given, until authorized by the grand jury or the Judge to discuss or impart such answers. You’ll understand that a violation of these instructions on your part may be the basis of a charge against you for contempt of court. I’m not so worried about anybody being held in contempt, I don’t do those things, but you can’t even talk to your spouse about it. I can’t talk to my wife about this. She says, “What are you doing up in Downieville? It’s such a beautiful place, what are you doing up there?” Sorry. Yes?
JUROR: Does that mean we don’t discuss it with each other within the grand jury?
THE COURT: You can’t do it as a petty jury. Does that apply, in your opinion, to grand jurors also?
MR. FILTER: Your Honor, my view is that nothing is discussed about this case, even among themselves, outside of this room. For that reason it’s very much like a jury would be in any type of trial.
THE COURT: That’s a very practical point. We must admonish our jurors, our 12 jurors in a trial not only not to discuss the case with anyone, but we include in that fellow jurors. Now, the very practical problem is this, my experience with jurors is once they are in this jury box it’s their baby, and they feel that way. They get very involved, emotionally and intellectually with that, and they want to share this with their fellow jurors. Practical problem is if that happens then you have what we call subgrouping, I’m sure you’re all familiar with that. You get two or three jurors like a team who decide the case, and they try to convince the other nine. I’m sure that doesn’t happen often, but we just must prevent that as a practical matter. Once again for the juror’s protection, because you want to do a super job, we know that. And that is for your protection so that you will be satisfied that you did the best possible job. And that’s very practical. I’m glad you pointed that out, and I appreciate your observation, Mr. Filter, thank you. And once again, as I tell everybody, I can’t even tell my wife what kind of a case I’ve got when we’re trying this. It took a long time to convince her, of course. She’s permitted to talk about that but I don’t dare. Now, this admonition of course does not preclude your raising questions in the courtroom, and we certainly don’t want to jeopardize your personal rights in any way. I’m not really concerned about that because I can’t foresee it happening. Now, any questions at this time? Please understand questions are welcome. None at this time? Any occur to you? Oh, yes, Ms. Kelley.
JUROR: Would you pronounce your last name for us again?
THE COURT: Goff.
JUROR: Like playing golf?
THE COURT: No, that’s Scottish. G-o-f-f is Shanty Irish. County Clare. My first daughter’s name is Shannon. And it’s right by County Clare. All right. Shall we excuse our jurors at this time and call in one of our alternates? We’ll let you go now, and please remember the admonition, it’s so important to you.
FOREPERSON: Will it be long before you want us back?
THE COURT: Shall we give our jurors half an hour?
MR. FILTER: I’m sorry, what?
THE COURT: Shall we give our jurors half an hour?
MR. FILTER: I don’t think that long, Your Honor; maybe 15 minutes.
THE COURT: All right. We’ll see you then, say at ten o’clock. That’s 17 minutes.
(Whereupon the following proceedings were held outside the presence of the jury.)THE CLERK: Judge, this is Anita McDonald, she’s one of the prospective alternates.
THE COURT: Were you with us?
MS. MCDONALD: Yes, I was.
THE COURT: Was our other protective alternate also?
THE CLERK: Yes.
THE COURT: That solves the problem.
THE COURT: Now, we you want to make this completely informal if we can. Why don’t I come down, too, and sit down here. All right. Why don’t you go ahead and ask her some questions.
EXAMINATION
BY MR. FILTER:
Q. I’m sorry, what was your last name?
A. McDonald.
Q. My name is Gale Filter, I’ll be one of the prosecutors on this case. This morning when I came in I noticed that, I think it was in the Mountain Messenger there was an article regarding this case in the newspaper; did you read that?
A. Yes.
Q. This case is going to have two felony counts, one of which is going to be a manslaughter charge. Would that affect you in terms of developing any bias on the evidence you heard in this case?
A. No.
Q. Is there any reason that you can think of that would disqualify you to be a juror in this case?
A. No.
Q. Having read the article that was in the Mountain Messenger, would that influence you? Does it give a preconceived idea as to what this case is about?
A. Yes.
Q. Okay. Given that, will that affect you in terms of sitting and listening to the evidence in this case in an impartial way?
A. I’m not sure.
Q. Why is that? Tell me why?
A. The article was a little slanted, so I think I could be objective, but it was — I felt a little sympathy for the defendant.
Q. Given what you read in the article could you put aside what it is that you read in there and sit as an objective juror, that everybody starts out on an equal or level playing field?
A. I’m sorry, could you repeat that?
Q. Sure. You’ve read this article and you say, as it stands, you have a little sympathy, if I understand you correctly, and leaning toward the defendant, and you haven’t heard any evidence in this case. What I’m asking you is could you sit as a grand juror in this case and put everything aside, start fresh, listen to the evidence and reach a decision independently of what it is that you read?
A. I believe I could, yes.
Q. Okay. Judge?
THE COURT: You wouldn’t believe this but when I was in high school the first couple years, summer college, I worked for a newspaper as a sports writer. And I was even asked if I would, later on, if I would become sports editor of that newspaper; small newspaper. This much I know about newspapers, and I admit — as a matter of fact, the college reunion last weekend I had dinner with a college friend who is editor of a small-time newspaper in California. And we got to talking about that quite a bit. Newspaper people, because of the nature of their work and sources of information, often must rely upon what is hearsay to them, things they haven’t observed. And I will tell you from extreme personal experience that hearsay, that is things a witness tells you under oath which he or she has heard from someone else, is very unreliable. I will not consider it in making any decisions. I won’t do it. What you read is hearsay. It’s baloney as far as I’m concerned. Why should you rely, as a juror, not upon what you have seen from witnesses under oath but what someone has heard from someone else which wasn’t even under oath? Does that make sense?
THE WITNESS: Yeah.
THE COURT: The other thing is that’s so important, I left the script up on my desk. Thank you. You don’t have to decide somebody’s guilt or not here, that’s not the question. If you were on a petty jury, 12 jurors, you would have to decide if the defendant is guilty of any particular offense beyond a reasonable doubt and to a moral certainty — beyond a reasonable doubt. That’s not the test here. I’ll read that, if I can find it. Yeah. The standard of proof you must use to indict is the same as that before a magistrate in a preliminary examination, that is evidence presented to the grand jury that is under oath in your presence, which if unexplained or uncontradicted by evidence under oath in this courtroom, not in a newspaper, would warrant the grand jury, that is you, each one of you, in entertaining a strong suspicion, strong suspicion, that the accused has committed the offenses or offense for which an indictment is sought. It’s very different from finding a person guilty and not guilty; it’s very different. So that’s the question. Can you do that?
THE WITNESS: Yes.
THE COURT: I’m not trying to push you. If you can’t I don’t want to put you in the position — I don’t ever want to put you in the position, or any juror in that position of saying I can do it because it makes the Judge feel good. You’re paying my salary, you don’t have to make me feel good.
MR. FILTER: I have just a couple, if I can, questions.
Q. What town do you live in? Don’t give me the address, but the town that you love in.
A. Calpine.
Q. And do you know Michael Miller?
A. No.
Q. Do you know Jonathan Farrell?
A. No.
Q. Do you know or have — do you have any relatives, close friends that work for, or have worked at the Sixteen to One Mine?
A. No.
Q. That’s fine. I’m perfectly fine with this.
THE COURT: Any questions?
MR. PATCHETT: No, Your Honor, that’s fine.
THE COURT: I will excuse you Ms. McDonald. If you’d wait with the other grand jurors and follow them back in.
THE WITNESS: Okay. All right.
THE COURT: I mean if I were normal I would say what did they ask you? They won’t do that. I’m not worried about that. Thank you.
(Whereupon a discussion was held off the record.)
THE COURT: Would you state your name, please?
THE WITNESS: Elaine Leontini.
THE COURT: Ms. Leontini, I think that Mr. Filter will ask some questions; very experienced in this.
EXAMINATION
BY MR. FILTER:
Q. Ms. Leontini, have you heard anything about this case? Mountain Messenger — have you read the Mountain Messenger?
A. Not in the last couple weeks.
Q. Okay. If you’re selected as a juror on this would you refrain from doing so until this case is resolved?
A. Sure.
Q. Without telling me what your address is where do you live?
A. Goodyear’s Bar.
Q. Do you know Michael Miller?
A. I’ve heard the name, I don’t know him.
Q. Jonathan Farrell?
A. No.
Q. Have you heard of the mining company called Sixteen to One?
A. Sure.
Q. Do you have friends, relatives, that either work for Sixteen to One or have worked for Sixteen to One?
A. (Witness shakes head negatively.)
Q. How did you hear about Sixteen to One?
A. It’s just one of the mines up here. I’ve been here 16 years.
Q. Okay.
A. Everybody knows about the Sixteen to One.
Q. And what kind of work do you do?
A. I’m retired.
Q. What kind of work did you do before?
A. Post office.
Q. This case will, as the Judge indicated, will involve charges of felony charges, serious charges needless to say. Do you have any problem sitting on a case that involves felony charges?
A. No.
Q. Is there anything, given what it is, what little you know about this case, that would make you feel uncomfortable in hearing what the evidence in the case is about?
A. No.
Q. Is there any reason that you could think of that would disqualify you as a juror?
A. No.
Q. You could be fair and impartial and listen to the evidence that’s presented in this case?
A. Uh-huh (affirmative).
MR. FILTER: Fine, Judge, I’m content with that.
THE COURT: Mrs. Leontini —
THE WITNESS: It’s Ms. That was my mother.
THE COURT: Well, you heard me mention that little pin I gave earlier, there was another one, it says, “What’s this about winning a man? What kind of a prize is that?” In any event, you’re certainly qualified. As we mentioned, what we’re going to do now is excuse you and then we will have a drawing.
MR. FILTER: You don’t win anything.
THE WITNESS: I kind of figured that one.
THE COURT: What kind of a prize is this?
THE WITNESS: Yeah, what kind of a prize is that.
THE COURT: We would be glad to have you on the grand jury, as we would Mrs. McDonald, so we can’t lose. It serves the people of the county, which is really what counts. Thank you for being with us, Ms. Leontini, a pleasure meeting you.
THE WITNESS: A pleasure meeting you.
THE COURT: Thank you. All right. For the record, we will set aside the state law against gambling and have a drawing.
THE CLERK: Anita McDonald.
THE COURT: All right, call Ms. McDonald in. Should we call our grand jury in. We told them ten o’clock. Let’s call Mrs. McDonald in.
MR. FILTER: We probably should call them both in.
THE COURT: Yes, I think that’s all right.
MR. FILTER: Would that be all right for me to do?
THE COURT: Sure, that’s a good suggestion.
MR. FILTER: Ms. Leontini is coming right up.
THE COURT: Mrs. McDonald, why don’t you be seated
A. Yeah, his hands were together in his lap. And yeah, his head was — the battery box isn’t even under the chute there, and I believe it was at least this far up under it. I mean with that much space for his neck.
Q. Okay. And then —
MR. PATCHETT: Make a record of what he just said.
MR. FILTER: The witness has testified that in Exhibit 5, that the position of the — the character representing Mr. Fussell is in the right position as seated front of the tram. There are the following exceptions, correct me if I’m wrong, okay, Mr. Kautz?
A. Okay.
Q. And the hands were between his legs?
A. Yep.
Q. That the head was actually perhaps bent six more inches to what would be the right of Mr. Fussell; that the head was positioned more underneath the chute; that the helmet was on top of the tram, as opposed in this characterization being on top of the head of Mr. Fussell. And I think the other thing that you said, which clearly is not reflected, that there was a lot of blood.
A. Yes.
Q. Is there anything I forgot?
A. I think that’s about it.
Q. Okay. And this is Number 5 that I’m showing you.
A. Right, same picture.
Q. Okay. Good. What did you do after you went to see Mr. Fussell; what happened after that?
A. I went over to him and I noticed that the controller of the train was still in gear, so the train was still trying to go that direction with him pinned under it.
Q. Could you tell what gear it was in?
A. Second or third. It was in a higher gear.
Q. Okay. What did you do then?
A. I try to back the train up, to back him — get him out of there, and the train wouldn’t move under the controller. And what happens is when you leave them in gear and they’re not moving it just fries everything in the controller, all the electrical, just because the motor’s trying to go and it’s not. So I pushed the motor vehicle by hand.
Q. What happened when you pushed it back?
A. Then I grabbed him. I had gloves on, white gloves, I grabbed him around his neck and tried to keep his blood in him.
Q. Did you say anything to him?
A. Not at that point.
Q. Did he say anything to you?
A. No.
Q. Was he conscious?
A. No.
Q. Did he respond in any fashion after you moved the train?
A. Nope.
Q. Did you at some point in time move Mr. Fussell from the train?
A. No, I did not.
Q. Why not?
A. I held him there, holding his neck up until help arrived, which seemed like forever. It must have been 20 minutes, I guess. It’s way out at the end of the mine, a long ways in there. And Steve Sheppert showed up first, and he’s an EMT-Paramedic, Camptonville Fire Chief. He took over for me and told me to go grab the safety bucket, which we keep in every work area. And I hopped up to where the slusher was and grabbed the bucket and brought it back down, and when I got back Steve had him laid down on the floor of the tunnel and covered him with a blanket. We started CRP. Steve was doing the mouth-to-mouth and I did the compressions until the rest of the crew showed up, or three or four other people showed up with a stretcher, we call it a stokes. And we put him in the stokes and put him on the flat car of the train, and one of the other guys pulled him out. I followed on foot.
Q. At any point in time that you were administering assistance to Mr. Fussell did he respond in any way?
A. No.
Q. Approximately how long was he at the level of the 1700 level before he was moved?
A. Before he was moved?
Q. Right.
A. Well, we were probably 20 or 30 minutes before everybody showed up and we got him in the stretcher and strapped him in and moved him out to the skip, the elevator.
Q. At some point in time did you see him at the ground level?
A. At the — yeah, when I walked out of the mine.
Q. And what was his state when you saw him at the ground level?
A. Actually all the EMT’s and paramedics and volunteer firefighters were all swarmed around him, so he was just lying there, and they were all around him. I walked past them.
(Whereupon People’s Exhibit 9 was marked for identification.)
Q. Okay. I’m showing you what has been marked Exhibit 9. Could you take a look at that for me? Do you recognize that?
A. Sure.
Q. And given what — what is it?
A. It’s a map of the mine.
Q. All right. In looking at that map can you show where the 1700 level was that this incident took place?
A. Sure. This is the 1700 level (indicating).
Q. Right.
A. This is the main shaft out to the north. I don’t know exactly where, pretty far out here though. Probably in here somewhere.
Q. Okay. Can you put a red sticker approximately the area that this took place?
A. Okay. I don’t know that level too well. It’s got to be around here. Approximately out here (indicating).
Q. And if you would put your initials in the red dot.
A. (Witness marking).
Q. A couple final questions. Looking back on what I have up there, which has been marked as Exhibit 6, is that pretty much how it looked that day on November 6th, 2000?
A. Yeah. Yes.
Q. And it’s clear that there are no warning devices of any kind; you would agree with that?
A. Yes.
Q. No flashing lights of any kind?
A. No.
Q. And is the chute marked in any way?
A. No.
(Whereupon People’s Exhibit 7 was marked for identification.)
Q. Okay. I’m showing you what has been marked as People’s Exhibit 7. Do you recognize that?
A. Not really. It looks like one of the many chutes in the main from this angle.
(Whereupon People’s Exhibit 8 was marked for identification.)Q. Okay. Exhibit Number 8, do you recognize that?
A. Yep. From that angle it looks a lot more familiar.
Q. Do me a favor, this is probably the worst drawing of a stick man you’ve ever seen, but could you put it over the seat in the position that Mr. Fussell was positioned?
A. (Witness indicating)
Q. So what you have done is you have taken a yellow sticker, there is a man with a baseball hat on facing to the left of the picture; is that correct?
A. Yep.
Q. And that represents the position that Mr. Fussell was in when you found him?
A. Yes.
Q. I mean seated that way?
A. Yeah. Seated that way, yes.
Q. Okay. On the next photo, that photo there, is that a close-up of the photo that is Number 8 in which you put the stick man on top of?
A. Yes.
Q. And again, there is no — or nothing to show, any warning signs, streamers or markings of any kind?
A. No.
Q. Thank you.
A. I would like to add, however, to that question.
Q. No, can’t do that.
A. Okay.
Q. The jurors have given us questions to ask you.
A. Okay.
Q. So we’ll take them one at a time. Was this a temporary chute or was it a permanent plan? The chute that’s above the tram, is that permanent or temporary?
A. Permanent.
Q. Are there any written documents concerning training where the train is concerned, and how often are those documents updated?
A. We fill out a form when you’re task trained on a piece of equipment that just shows that you’ve been trained and by who, but that’s all that I’m aware of.
Q. Is there a manual for the operation of the train and where is it located?
A. I don’t know.
Q. Well, let me ask the first question. Is there a manual for the train?
A. I’m sure there was one published at one time.
Q. Did you ever look at it?
A. I’ve never seen one.
Q. And so the second question, you wouldn’t know?
A. Right.
Q. Is there an emergency stop button for the operator mounted to the cart or the train?
A. No.
Q. Were all other chutes marked in other work areas?
A. No.
Q. Did anyone walk this area to your knowledge? Did anyone walk this area before sending in workers?
A. I believe that the inspectors were in that area not more than a week prior to that point.
Q. No, no, no, I don’t think that’s what the question is. The day of this, November 6th.
A. That day?
Q. Did anyone from the mine walk that area before workers were sent in? I don’t know whose question this is?
A. Not them, I believe; just the workers.
Q. Okay. There was one question we can’t ask, we have to ask someone else later. Are there any others questions?
FOREPERSON: All right. You’re admonished not to discuss or impart at any time outside of this jury room the questions that have been asked of you in regard to this matter, or your answers, until authorized by this grand jury or the Court to discuss or impart such matters. You will understand that a violation of these instructions on your part may be the basis for a charge against you of contempt of court. This admonition of course does not preclude you from discussing your legal rights with any legally employed attorney should you feel that your own personal rights are in any way in jeopardy.
THE WITNESS: I understand.
MR. FILTER: Thank you very much, I appreciate your —
THE WITNESS: Will that be all today?
MR. FILTER: That’s it.
FOREPERSON: Will you stand and rise your right hand, please?
JAMES WEISBECK
called as a witness by the People, having been duly sworn was examined and testified under oath as follows:FOREPERSON: Thank you.
EXAMINATION
BY MS. MEJLSZENKIER:Q. Could you please state and spell your name for the record?
A. James Weisbeck, W-e-i-s-b-e-c-k.
Q. Mr. Weisbeck, what is your occupation?
A. I’m a MSHA inspector.
Q. What is MSHA?
A. Mine Safety and Health Administration.
Q. Is that part of the United States Department of Labor?
A. That is correct.
Q. How long have you been employed as an MSHA inspector?
A. January of ’99.
Q. And you have any special education or training related to — for your job?
A. A year at the mine academy in Beckley, West Virginia.
Q. And do you have mining experience?
A. Yes, I do.
Q. How much mining experience do you have?
A. Seventeen years of underground mine experience, about four years of surface mines.
Q. And what does your job with MSHA entail?
A. Inspecting for health and safety.
Q. As part of your job with MSHA do you issue citations?
A. Correct.
Q. When do you issue citations?
A. When there are hazards that present themselves that may be a hazard to the miners.
Q. And to whom do you issue citations when you issue them?
A. Normally the citations are not issued to persons. The company — the company and the inspection party — excuse me, I’m kind of getting over a cold. Whoever accompanies the inspection party that is the representative for the company.
Q. So do you issue citations to individuals or to people in their representative capacity?
A. In their representative capacity.
Q. So you do not issue citations to individuals in particular?
A. Very unlikely it would be an individual. There are — there is a certain case if an individual is smoking in a powder magazine, or something like that, where it would be an imminent danger, there could be an infraction on the individual, yes.
Q. Why do you not otherwise issue citations to individuals?
A. They do not direct the work force.
Q. So then the idea is to issue citations to the individuals who are in control or directing the work force?
A. Correct.
Q. Okay. Are you familiar with Sixteen to One Mine?
A. Yes, I am.
Q. Where is it?
A. It’s in the City of Alleghany.
Q. What county is that in?
A. Sierra County.
Q. Have you been out there before?
A. Before?
Q. Have you been out there?
A. Yes, I have.
Q. How many times?
A. Once.
Q. When were you last out there?
A. In August of 2000.
Q. Are you familiar with the term “legal identity report”?
A. Yes, I am.
Q. What is a legal identity report?
A. It’s the ID that represents the mine name, address, county, person in charge, person in charge of health and safety, president of the company and their address. And it has an MSHA-issued ID number.
Q. Are mine operators required to file legal identity reports with MSHA?
A. Yes, correct.
Q. Do legal identity reports indicate the official business name of the mine operator?
A. Correct.
Q. What is the official business name of the mine operator of Sixteen to One Mine?
A. At that time?
Q. At that time.
A. Original Sixteen to One, Sixteen to One was the name of the mine, or the name of the operator and the name of the mine.
Q. Do you know what the name of the mine is now?
A. It has changed several times over the years so I don’t know if there’s been a recent update.
Q. Okay. Do legal identity reports indicate the principal operator — the principal officer, sorry, or the mine operator?
A. Yes.
Q. Do you know, based on the legal identity report of Sixteen to One, who is the CEO of that mine?
A. In August of 2000 the president was Mike Miller/CEO.
Q. Okay. Do you know in August of 2000 who was the president of that mine?
A. Yes.
Q. Who is that?
A. Mike Miller.
Q. Do you know if he exercised direction and control over the mine?
A. Yes.
Q. Could you provide some examples of this?
A. Well, even when you checked in at the gate he had to be notified right away. He introduced himself as president of the Sixteen to One Mine, talked about his — his capacity of the mine, and that the citations, if there were any, or anything that needed to be addressed would need addressing through him.
Q. Did you also see him exercise direction and control over mine employees?
A. Not — other than Jonathan Farrell, no.
Q. Okay. Who is Jonathan Farrell?
A. Jonathan Farrell was the mine manager at the time.
Q. How do you know that?
A. Well, Jonathan Farrell was the — introduced himself as the mine manager, and when I checked in at the office that’s who they informed me would be accompanying me on the inspection.
Q. Did you see Jonathan Farrell exercise direction and control over mine employees?
A. Yes, I have.
Q. Could you provide some examples of that?
A. He directed the — in review of the records he was showing what he does for training in the regulations for giving training to new hires, or experienced minors, or annual refresher training. He also directed control of people, where they work, and who they work with, and areas that they’re going to be working, yes.
Q. On August 15th, 2000 were you at the Sixteen to One Mine?
A. Yes.
Q. What were you doing there?
A. I went to visit for a regular inspection.
Q. What’s a regular inspection?
A. Regular inspection is an inspection of a mine for its records, for looking over potential health issues, for safety or evacuation plans, rescue plans, and for if they’re in compliance with all of the federal regulations of the 30 CFR.
Q. The 30 CFR, what is that?
A. 30 CFR is the Code of Federal Regulations, it’s a standards book.
Q. Are the citations that you issue as a mine safety and health inspector based on Title 30 of the Code of Federal Regulations?
A. That’s correct.
Q. On August 15th, 2000 did you enter Sixteen to One Mine in order to conduct the inspection?
A. Yes, I did.
Q. Did you go underground into the mind?
A. Yes, we did.
Q. Did you go with anyone?
A. Yes.
Q. Would did you go with?
A. Bruce. I was accompanied with a fellow inspector, Bruce Allard, and Jonathan Farrell.
Q. During your inspection of Sixteen to One Mine on August 15th, 2000 did you notice any conditions that did not comply with mine safety and health standards?
A. Yes.
Q. Did one of those conditions that did not comply with mine safety and health standards relate to an area of restricted clearance?
A. Yes.
Q. Could you explain what restricted clearance is?
A. Restricted clearance is an area that presents itself as a hazardous area where in the event that people travel to and from would need to be conspicuously marked to identify itself as a potential hazard.
Q. Now, does restrictive clearance refer, for example, to areas where there’s low head room?
A. Yes.
Q. And what are the mine health and safety standards that relate to areas of restricted clearance?
A. Oh, we have, just the top of my head I can think of probably about three or four different standards.
Q. Are there — how many of those standards apply to areas of restricted clearance over rail lines?
A. One that would be specific for that area.
Q. What standard is that?
A. I believe it’s 57.9306.
Q. And what does it require?
A. Requires that in the areas where there is restricted clearance the area shall be conspicuously marked from each direction.
Q. Does it require anything else?
A. I can’t quote the standard.
Q. Do you not recall the — all of the requirements of the standard?
A. No.
Q. No, you don’t recall. If I show you the standard would that refresh your recollection?
A. Yes.
Q. I’m now handing a copy of the standard that you mentioned, Title 30, Code of Federal Regulations, 53.9306. Could you please take a look at that and look up when you’re 26 done reading it.
A. Okay.
Q. Did that refresh your recollection?
A. Sure.
Q. Okay. Could you please tell us what the requirements of that section of the Code of Federal Regulations are?
A. Where a restricted clearance creates a hazard on mobile equipment the clearances shall be conspicuously marked, and warnings shall be put in prior to the entry of that area.
Q. Okay. The area of restricted clearance that you discovered on August 15th, 2000 in the Sixteen to One Mine, what was that item of restricted clearance?
A. It was an ore chute.
Q. Where was it located?
A. On the 800 foot level behind the 49 winds.
Q. Okay. Was it — could you please explain what a winds is?
A. A winds is — technically a winds is a shaft. The reason they’re called — some are just called shafts, but a winds is technically for a shaft that is underground and doesn’t surface to the surface. It’s an underground shaft.
Q. Uh-huh (affirmative). And does the winds run horizontal or vertical?
A. Well, they can run in vertical, or diagonally vertical. Mostly vertical, yes.
Q. And so the winds, the 49 winds that you mentioned earlier, it runs vertically?
A. Correct. A diagonal vertical.
Q. How did this chute on the 800 level restrict clearance?
A. Oh, the 800 chute on the — or the chute on the 800 foot level had — it projected out into the center of the track and beyond. The clearance of the chute was measured at 55 inches above track level. So persons traveling via mobile equipment, being a rail, locomotive, would have to duck his head one way or the other to get through the narrow opening that was left there.
Q. And was that rail line in use?
A. Yes.
Q. What were the lighting conditions like in that area?
A. Well, of course you have your head lamp, and that was the only light condition that was provided in that area.
Q. There is no ambient light?
A. No.
Q. Was this chute, was it marked?
A. No, it was — it had no markings at all.
Q. Did it have reflectors on it?
A. No.
Q. Any kind of sign?
A. No.
Q. Were there any warnings in advance of this chute?
A. No, there was not.
Q. There were no flashing lights?
A. None.
Q. No rope hanging down?
A. Nothing to indicate at all that this was being marked in any way.
Q. Did you take pictures of this chute?
A. Yes, I did.
Q. Was Jonathan Farrell present when you inspected that chute?
A. Yes, he was.
Q. Was Michael Miller?
A. Not during the — when I wrote up the citation, no.
Q. Okay. While you were inspecting the chute did you come into contact with the locomotive operator?
A. Yes, just shortly after, through some of the disseminating of information, a locomotive did come out from the back end of the mine where we were heading to pulling some ore cars, yes.
Q. Was Jonathan Farrell present at that time?
A. Yes, he was.
Q. Did you measure the height of the locomotive operator?
A. We did.
Q. So he was operating the locomotive in the area of that chute?
A. Yes. He stopped prior to, because we were standing there. We got — made sure we had contact with him and stepped off the side to make sure he slowed down, and we wanted to communicate with him, yes.
MR. PATCHETT: Who is “we”?
THE WITNESS: Bruce Allard and myself.
MR. PATCHETT: Thank you.
THE WITNESS: And Jonathan Farrell.
BY MS. MEJLSZENKIER:
Q. So you stated that you measured his height. Did you measure his height while he was seated in the locomotive?
A. Yes, we did.
Q. And how — what was that measurement?
A. It was 60 inches.
Q. And you stated before that the chute, the lip of the chute hung down to 55 inches?
A. That’s correct.
Q. So are you saying that the operator of the locomotive was actually five inches taller than the chute?
A. Yes.
Q. Did the locomotive operator indicate to you how he travels past that chute?
A. I had asked him how do you make your way through that chute, and he says you just have to duck through it. There was a narrow opening about 16 inches from the chute lip to the bang board where he would duck his head and fit his head through it to pull himself through, yes.
Q. Could you explain what a bang board is.
A. A bang board is just a deflector. You got your chute lip, you got the trough where your ore runs down, then you have a gate that’s on the chute that stops the ore when you open the gate to drop the ore into a cart. That center line over the track, you have a bang board so the ore doesn’t shoot past the car. So it hits that and then drops down into the rocker car.
Q. Was Jonathan Farrell present when the locomotive operator indicated how he travels past that chute?
A. Correct.
Q. Did you discuss the need to mark areas of restricted clearance with Jonathan Farrell?
A. Yes, I did.
Q. Why is it important to mark areas of restricted clearance?
A. Well, it acts — it acts as a good reminder, and also it acts as something that catches the eye real quick. That in the event that there are factors that may happen as you’re pulling, as you’re running a rail car pulling ore on a rail, you have a lot of room for things that can happen. The locomotive that you’re driving can jump the track, the cars that you’re pulling behind you can jump the track, or something can happen with that that can distract you instantly, and then you lose your sight of your travel, and you need those quick reminders, and something that it catches the corner of the eye as you’re coming down the track to remind you that you have a hazard present.
Q. So you said you can lose sight of your direction of travel. Does that mean you get disoriented?
A. Well, there’s very low lighting. You have to understand that the mine is very dark, and the chute as it rusts and corrodes with mud and sand and dirt, it kind of blends in with the surroundings. So you only got your head lamp, and then a part of your — the light on the locomotive for your sight.
Q. The light on the — was there a light on the locomotive that you saw?
A. I believe so.
Q. Do you recall where on the locomotive that light was?
A. I don’t recall if it was on the front of the cab or the back of the motor.
Q. Do you remember about what height it was off the rail, above the rail?
A. No, I don’t. I would estimate right around the head height of the operator sitting in the locomotive.
Q. The light on the locomotive?
A. Correct. Give or take four or five inches in there, yeah.
Q. Okay. So with the low lighting that there are in these tunnels, and do you call them drifts, the mine tunnels?
A. We call them drifts, yeah.
Q. With that low amount of lighting, is your testimony that you would want to mark chutes or other areas of restricted clearance so that they would call your attention, you would be able to see them?
A. Yes.
Q. And did you also discuss the need to have warnings in advance of chutes?
A. We discussed best practice would be also to have warnings in advance to indicate to the motormen the need to slow down. In the event that something was to jump the track, or the attention was drawn to a different focus, that he needs to be traveling at a slower speed, yes.
Q. Uh-huh (affirmative). Is it — in your experience would lights in advance of a chute, or other markings in advance of a chute, would that call a locomotive operator’s attention if, for instance, they were not looking in the direction of the chute?
A. The lights in advance?
Q. Or other advance warnings.
A. Yes.
Q. Okay. And are warnings in advance of areas of restricted clearance of rail lines, are they important because locomotives can also be traveling fairly quickly?
A. Yes. When — yeah, they can travel fairly — they can travel fairly good speed. I mean we’re talking about 15 to 20 miles an hour. And pulling a train of rocker cars behind you, that adds a lot of weight. And when the momentum of all that weight, on a small locomotive as this was, that it can push you a long ways when you’re trying to brake and slow down. So advance warnings again is a good indicator that I got this much distance, I should be at this speed coming into this area because I know I got to duck my head. I got to make sure my head is in the right position to go through this opening.
Q. And let me ask you, one of the things used to mark areas of restricted clearance, not to warning in advance but to actually mark the items, would those be things like reflectors?
A. Yes. From my — yes.
Q. Okay. And reflectors on, for instance, an ore chute, do they get dirty?
A. Yes.
Q. Do they stop picking up the light when they get dirty?
A. Yes.
Q. So would an advance warning also assist a locomotive operator in noticing an area of restricted clearance if, for example, the markings on that area of restricted clearance are no longer readily apparent?
A. Yes.
Q. On August 15th, 2000 did you issue a citation related to the chute on the 800 level?
A. Yes, I did.
Q. Did you verbally notify people of the citation and their contents at the time that you saw the condition constituting the condition?
A. Yes, I did.
Q. And who did you notify?
A. Jonathan Farrell.
Q. And did you then provide a written citation, a written copy of the citation?
A. I took the written documentation and then I gave him the printed form the next day.
Q. Okay. When you informed Jonathan Farrell that you were going to issue a citation, that was at the time of your inspection?
A. Yes.
Q. Were you standing — I’m sorry, what was your answer, that it was at the time of your inspection?
A. Yes.
Q. And were you standing by the chute?
A. Yes.
Q. And did Jonathan Farrell respond when you informed him that you were going to issue a citation?
A. Yes.
Q. What was his response?
A. He was upset, and he felt that we might be picking on him. And he felt that — he had stated that the miners know those chutes are there and that it hasn’t been written in the past.
Q. The written citation that you later provide Jonathan Farrell with, did that state the regulatory basis for the citation?
A. Yes.
Q. And was that the code section we previously discussed?
A. That’s correct.
Q. Did you use, or do you use a special form to issue citations?
A. Yes.
Q. What form is that?
A. I believe it’s the 7003.
Q. Could you describe?
A. The citation order form, 7003 form, if you want to know the form.
Q. Is there an area on where you provide a narrative statement?
A. Yes, there’s a section in there where who you serve it to, the date you serve it, the time you served, citation number. It’s got a condition or practice. And it has your gravities, and it has your negligence, and it has termination.
Q. Let’s talk about gravity for a second.
A. Okay.
Q. In relation to gravity, did you fill out the area for gravity on this citation part?
A. Yes.
Q. How did you mark that section for the violation, for the violation that you noted with regard to the 800 shift?
A. I had marked it unlikely.
Q. And at the time that you wrote the citation did you believe that a miner traveling on the rail line would be at risk of striking his head on the chute?
A. Yes, I did.
Q. How is that?
A. With just the restriction of clearance, and having to duck his head through the opening to get through in and out of that area, I felt it was a hazard.
Q. Did you discuss that hazard posed by the chute with Jonathan Farrell?
A. Yes.
Q. When did you discuss that?
A. At the time.
Q. At the time that you were inspecting the chute?
A. Yes.
Q. Did you have such a conversation while you were also writing the citation on the chute?
A. Yes.
Q. During that conversation did you tell Jonathan Farrell that someone could be killed while traveling under the chute?
A. I painted out a few scenarios that — you know, trying to let him know how serious I felt about this discrete hazard. Jonathan was acting very confrontational at the time so it seemed like you had to take it to the extreme and say, you know, this can be really serious, this could result in a fatality. We need to really take a good look at this. And I explained again what I had seen in the past in my years of mining and underground exposure to this type of condition, and what’s been used, and over and over, and yes.
Q. What if anything did Jonathan Farrell say in response?
A. He felt we were in the wrong, and that it’s never been cited for, and his miners know their chutes are there.
Q. And did you discuss ways in which that chute could be made safe with Jonathan Farrell?
A. I sure did. I explained what I had seen in the past, from my experience and my exposures to these conditions.
Q. And in your experience, both as a miner and as a mine safety and health inspector, what are some of the ways in which chutes posed with restrictive clearance can be marked?
A. We have done several different things. We actually went through the scenario where there was a haul-through drift, as this was. We actually put strobes 50 feet in advance, and we hang streamers down from — or ropes or wires down with a wire that was reflective to the light in advance to slow down, especially if we were pulling — if pulling a large train of 10, 12 cars, or even five cars that are heavy. We would put bicycle reflectors all around the chute lips to indicate — to catch the eye at a glance, to catch the eye that it’s coming right now in the event that, you know, something, if there’s a lot of distractions. I tried to explain this all to him, yes.
Q. And what if anything did he say in response when you informed him of that?
A. He didn’t believe it was an issue here.
Q. I’m handing you People’s Exhibit Number 2 for identification.
A. Okay.
Q. What is it?
A. It’s a photo of Michael, Mike Miller.
Q. Is that — and that is the individual you described before as being the CEO of Sixteen to One Mine?
A. The president and CEO, yes.
Q. Is that up on the wall behind you?
A. Okay.
Q. Is that the same picture?
A. That is, yes.
Q. Okay. People’s Exhibit Number 2. I’m now handing you people’s Exhibit Number 1 for identification, do you recognize —
A. Yes, I do.
Q. Who is that?
A. Jonathan Farrell.
Q. Okay. And is that the individual that you described as being the mine manager on August 15th, 2000?
A. That’s correct.
Q. There’s the pictures being shown
Q. So if Mark Fussell was moving, and the object he struck was stationary, if he had been moving at half the speed that would have reduced the available kinetic energy by one-fourth?
A. Correct. Well, not by one-fourth but to one-fourth. It would have reduced it three-fourths essentially. It would be only 25 percent of the original in other words.
Q. Doctor, I’m handing you People’s Exhibit Number 6.
A. Yes.
Q. What is it?
A. These are two photographs of a mine locomotive in a shaft. And in the upper photograph, toward the top right area, there’s a chute that is protruding into the upper part of the shaft.
Q. Okay. If I told you that the victim — looking at the top photograph in People’s 6. If I told you that the victim was seated on the locomotive depicted in that picture, and that locomotive weighs 3,000 pounds, and the victim struck the chute also depicted in that top picture, based upon his injuries do you have an opinion as to what direction the victim was facing when he struck the chute?
A. Yes.
Q. What is your opinion?
A. In my opinion he would have been seated so that the left side of his body, his left side of his face would hit the chute. So he would be seated probably, let’s see, to get his left side out, he would have to have his left side of his face showing, so his face would be turned in that direction toward this wall of the shaft, over here, where I’m pointing with the pointer, to have the left side of his face. ‘Cause he would — he would be coming out to the foreground of the photograph, because this is the front of the locomotive, and that’s the seat, I believe. So he would be turned facing this direction.
Q. Would such a scenario be consistent with your findings?
A. Absolutely, yes.
Q. Would such a scenario, it would have been sufficient to fracture his spine?
A. Well, yeah. See, you would have to place his — have him seated, and his head is positioned about here with the lower part of his face impacting some corner of this chute sticking out that would be about here. That would — and you’ve got some distance here between that impact and then the top of this, the battery box part of the locomotive here for the right side of his head then to rebound into. And in that sort of violent — well, actually you should go this way if you’re sitting the way I would envision him seated. Impact first to the left side of the face, violent motion of the head back, abruptly stopped by the top of the locomotive, with a secondary impact resulting in injury to the right side of the head. And with a violent movement of the spine, within the neck, between those two impacts, yes, it would be very consistent. Again, given enough kinetic energy, enough mass and velocity combined.
Q. And given that scenario would it also be consistent with the damage you found to Mark Fussell’s brain, the hemorrhages, and his brain stem being torn?
A. Yes. Very much so.
(Whereupon People’s Exhibit 15 was marked for identification.)
Q. I’m handing you what has been previously marked as People’s Exhibit 15 for identification.
A. Yes.
Q. What is it?
A. This is a photograph of the mine shaft. This is actually taken from the opposite perspective of the previous exhibit, showing the other side of the chute projecting into the upper part of the shaft.
Q. Are the materials on — what — based on your training and experience what do the materials on the chute appear to be to you on the lower picture?
A. We have two, at least two materials that are readily identifiable here. We have blood. There’s a blood stain swiped across the base of the chute here, and then at this edge, this is actually a 90 degree edge here, there is curly kind of dirty blond hair.
Q. Are the materials on that chute consistent with the types of injuries you found on Mark Fussell when you conducted his autopsy?
A. Yes. And particularly with the large open injury in front of his left ear, with the corresponding damage to his jaw.
Q. Do you have an opinion as to, if this is an object that Mark Fussell struck, as to what that hair is from?
A. I would expect that to be from his beard on the left side of his face.
Q. Would that be consistent with the injuries you found on him?
A. Yes, completely.
Q. Doctor, I’m handing you People’s Exhibit Number 5.
A. Yes.
Q. What is it?
A. This is a drawing depicting an individual seated on a mine locomotive confronting a chute with the left side of his head.
Q. In your opinion are the events — and is that the same photograph that’s being projected on the wall behind you?
A. Yes, it is.
Q. In your opinion are the events depicted in this sketch consistent with the types of injuries you found when you conducted Mark Fussell’s autopsy?
A. Yes.
Q. Doctor, I’m handing you People’s Exhibit Number 4 for identification.
A. Uh-huh (affirmative).
Q. What is it?
A. This is a photograph of Mark Fussell.
Q. Is that the same photograph that’s projected on the wall behind you?
A. Yes, it is.
Q. Could you please indicate with the laser pointer the corresponding location on Mark Fussell’s face where you would have seen the transfer of hair?
A. It would be from right about this area in here. Somewhere in front of the left ear, as far down as here, as far up as maybe the area to the outside of his eye. Somewhere along in there. Perhaps a good stretch of that.
Q. Did you find any contributing factors to Mark Fussell’s death?
A. Mechanically speaking, no.
Q. Drugs or alcohol play any role in contributing to Mark Fussell’s death?
A. In my opinion, no.
Q. And what is your opinion based on?
A. A toxicology screen that was performed at the time of the autopsy, or on specimens obtained at the time of the autopsy.
Q. When were those specimens taken?
A. At the time of the autopsy on November 8th.
Q. And would the result from those specimens, the results of the analysis on those specimens still be accurate even though Mark Fussell had died sometime prior to the autopsy on November 8th?
A. Yes.
Q. How do you know that?
A. Well, his body was well preserved over the approximately two days between the time he was pronounced dead and up to the autopsy. His body was cold, it had obviously been in refrigerated storage, which would again preserve any constituents within his blood that may have been present. And the other side of that is that the breakdown of drugs in the body stops at death. The liver does most of the work in metabolizing or breaking down drugs. Liver function ceases at death, so I wouldn’t expect any significant change.
Q. During your autopsy did you find signs of any other disease that could have contributed to the accident?
A. No.
Q. So no indications, for example, of a stroke?
A. No.
Q. Heart attack?
A. No.
Q. Do you have an opinion as to what the approximate time between Mark Fussell incurring his injuries and his death?
A. Very brief. His breathing would have stopped immediately. The area of his brain stem that was damaged houses some of the important centers in the brain that initiate the drive to breathe, and within a few minutes, maybe five at the most, his heart would have stopped for lack of breathing and lack of oxygen supply and so forth. So could have had a heart beat for a few minutes, but beyond that he would have been dead. He would have been unconscious instantaneously, and clinically dead within a few minutes.
Q. In forming your opinion did you review a statement by Vincent Kautz?
A. I believe so, yes.
Q. Was anything in that statement inconsistent with your findings?
A. No, not at all.
Q. So the statement was consistent with your findings?
A. Yes.
Q. Okay. Thank you, I have no further questions.
EXAMINATION
BY MR. FILTER:
Q. Dr. Reiber, do you know if there was a doctor at the scene at the time that this incident took place?
A. I haven’t seen any documentation that indicates that. My impression was that there was not, that first aid was rendered by co-workers is my understanding.
Q. Were any tests made by you or any other doctor of the hair that was obtained from the locomotive?
A. Not by me. If some was obtained and tested by another agency I just can’t say, I don’t have that information.
Q. How do you know that these pictures were from the scene?
A. By information that I had been provided.
Q. How did you know that the item — how do you know if these were the items that caused the death of Mr. Fussell?
DIRECT EXAMINATION
BY MS. MEJLSZENKIER:
Q. Can I rephrase that? When we were discussing the items in question I was posing you a series of hypothetical questions; correct?
A. Right, yes.
Q. And I indicated to you if these were the items involved then would those, would his injuries be consistent with that type of scenario; is that correct?
A. Correct.
Q. Do you have any independent knowledge about whether or not those were the items involved, that chute in one photo and the locomotive?
A. No. Beyond my examination of Mr. Fussell’s injuries, and then noting a pattern of consistency with these particular objects, no. I didn’t directly witness the accident, I haven’t personally been to the scene of the accident, so I don’t have any independent way of verifying that.
Q. And also in regards to the exhibit, the photograph of the chute with hair and blood, do you have any independent knowledge of that being — of Mark Fussell having struck that chute?
A. Independently, no.
Q. Okay. So is your testimony here today that his injuries are consistent with striking that chute?
A. Yes.
Q. Okay.
EXAMINATION
BY MR. FILTER:
Q. One other question. Given all the consistencies, did you find any inconsistencies with the information that you obtained through photos, reports you read, with the actual returns or findings that you made during your autopsy?
A. Not at all, no.
Q. Thank you. Any other questions?
JUROR: I do have one more question.
BY MR. FILTER:
Q. Who provided you with information surrounding Fussell’s death?
A. My information initially came through the Sierra County Sheriff-Coroner’s Office, Lee Adams and his personnel. We get a report that we review before we do the autopsy, that gives us basic information as to when the death occurred, date and time, and what was known at that point about the general circumstances of the death. That’s what we start with even before we start the autopsy. Additional information was either provided or verified from that initial input in conversation with Ms. — I will probably slaughter your last name — Mejlszenkier.
EXAMINATION
BY MS. MEJLSZENKIER:
Q. Doctor, I met with you several days ago; correct?
A. Correct.
Q. And during that time I showed you Vincent Kautz’s statement?
A. Correct, yes.
Q. I showed you some photographs as well?
A. Yes.
Q. Is that correct? And I asked you if the statement was consistent with the injuries you found?
A. That’s right.
Q. And I showed you the photographs and I asked you if those photographs were consistent with injuries you found?
A. Correct.
Q. Okay.
EXAMINATION
BY MR. FILTER:
Q. In the 300 times that you’ve testified in courts of law in the State of California, and other courts, is this an uncommon procedure to discuss cases with prosecutors prior to testimony in order to obtain information?
A. Quite the contrary, it’s actually a very common practice. It actually helps both the attorney and the witness be clear on what the issues are and actually make sure that accurate information gets presented to the jury ultimately. In my experience over the years it’s actually the preferred thing. It’s better for everyone involved, when you’re dealing with expert testimony, if the expert witness and the attorney have a chance to meet and discuss the issues first.
MS. MEJLSZENKIER: So when I met with you did you explain to me what some of the terminology was in your report?
THE WITNESS: Yes, that’s right. Yeah. Meeting with the attorney before hand — when you are an expert witness you form your own opinions. You may gain information that helps you evaluate the strength of those opinions, but one doesn’t change one’s opinions just on the basis of the meeting unless there is some evidence, some hard evidence to show why one should. But it really is — it’s more of a matter of exploration of what your opinion is as opposed to this is what your opinion should be. Because you as a witness always have to form your own opinion.
MR. FILTER: Thank you.
MS. MEJLSZENKIER: Thank you very much.
FOREPERSON: You are admonished not to discuss or impart at any time outside this jury room the questions that have been asked of you in regard to this matter, or your answers, until authorized by the grand jury or the Court to discuss or impart such matters. You will understand the violation of these instructions on your part may be a basis for a charge against you of contempt of court. This admonition does not preclude you from discussing your legal rights with any legally employed attorney should you feel your own person rights are in any way in jeopardy.
THE WITNESS: Thank you.
FOREPERSON: So allow 15 minutes out in the fresh air. Please remember not to discuss this among yourselves. Be back in 15 minutes.
(Whereupon a brief recess was held and roll was taken)
BRUCE ALLARD called as a witness by the People, having been duly sworn was examined and testified under oath as follows:
EXAMINATION
BY MS. MEJLSZENKIER:
Q. You may be seated. Could you please state and spell your name for the record?
A. Bruce Allard. B-r-u-c-e, A-l-l-a-r-d.
Q. What is your occupation?
A. Metal, nonmetal mine inspector.
Q. And for whom do you work?
A. Mine Safety and Health Administration.
Q. Is that part of the United States Department of Labor?
A. Yes, it is.
Q. What does your job with Mine Safety and Health entail?
A. Doing safety and health inspections at mining operations.
Q. How long have you been employed with Mine Safety and Health Administration?
A. Four years in December.
Q. Do you have any special education or training in regards to mine safety and health?
A. On-the-job training from previous mining experience, then 20 weeks of training in Beckley, West Virginia at the Mine Health and Safety Academy.
Q. How many years of mining experience do you have?
A. Twenty-two years.
Q. And how many inspections have you participated in?
A. Between 250 and 300.
Q. Are you familiar with the Sixteen to One Mine?
A. Yes, I am.
Q. Have you been out there? Have you been to the mine?
A. Numerous times.
Q. Were you at the Sixteen to One Mine on August 15th, 2000?
A. Yes, I was.
Q. What were you doing there?
A. An inspection, regular inspection.
Q. On August 15th, 2000 did you enter the Sixteen to One Mine in order to conduct that inspection?
A. Yes.
Q. Were you with anyone?
A. James Weisbeck and Jonathan Farrell.
Q. On August 15th, 2000 did you see Mr. Weisbeck issuing citations?
A. Yes, I did.
Q. Did any of the citations that Mr. Weisbeck issued on that date relate to areas of restricted clearance?
A. Yes. One on an ore chute on the 800 level.
Q. How do you know that he was issuing a citation for that?
A. We discussed it, the violative condition and the citation.
MR. PATCHETT: Who is “we”?
THE WITNESS: James Weisbeck and I.
BY MS. MEJLSZENKIER:
Q. Was Jonathan Farrell present while you were discussing the citation?
A. He was, yes.
Q. Did you see the chute?
A. Yes, I did.
Q. Could you describe it?
A. It was a metal chute coming out of the wall at about a 60 degree angle with a metal, what we call where I worked, a bang board, and a metal gate to close off the rock.
Q. How did the chute restrict clearance?
A. It extended out to the middle of the track line so it would load the ore cars as they came underneath of it.
Q. Was the chute measured?
A. Yes.
Q. Who measured it?
A. I measured it.
Q. How did you take those measurements?
A. With a tape measure.
Q. Do you recall what the measurements were?
A. 55 inches at the bang board and 58 inches at the chute lip, or the chute gate.
Q. And that’s inches above the rail?
A. Above the rail.
Q. Was the chute marked?
A. No.
Q. Did it have reflectors on the chute?
A. No.
Q. Any signs?
A. None that I saw.
Q. Any streamers?
A. I don’t recall any streamers or any markings. Certainly none that were conspicuous markings.
Q. Did you notice anything hanging on or near the chute?
A. A ways towards the adit, the opening of the mine, there were some wires hanging down from the back of the drift, from the ceiling of the drift.
Q. And based on your training and experience what did the wire appear to be for?
A. They may have been for a previous sign or a marking. That’s what we discussed at the time.
Q. Did you see the area around the chute?
A. Yes.
Q. Were there any warnings in advance of the chute?
A. No.
Q. On either side of the chute?
A. No.
Q. Do you know if the area where the chute was located was regularly traveled by locomotive operators?
A. Yes, it would have been. It was the only means of access to the mining area that they were currently mining.
Q. And on August 16th, 2000 did you return to the Sixteen to One Mine?
A. Yes, I did.
Q. Who did you go with?
A. James Weisbeck, Jonathan Farrell and Mike Miller.
Q. Did you see if Mr. Weisbeck provided written citations to anyone at the mine?
A. Yes, he did.
Q. To whom?
A. Jonathan Farrell.
Q. Did you see if a citation for failing to mark an area of restricted clearance, namely the chute, was one of those citations?
A. Yes, it was.
Q. Did you return to the location of the chute on August 16th, 2000?
A. Yes, we did.
Q. Who did you go with?
A. James Weisbeck, Jonathan Farrell and Mike Miller.
Q. Was the citation of the chute discussed at that time?
A. Yes, it was.
Q. What was that discussion?
A. It was quite a lengthy and heated discussion about whether the citation was justified, whether the chute needed marking, and what was required under the standard.
Q. Was the possibility of someone being injured by hitting the chute discussed?
A. I believe it was at that time. I know it was the day before when we discussed it with Jonathan.
Q. At any time on — during that time on August 16th, 2000, when you were with Jonathan Farrell, Michael Miller and James Weisbeck, did Michael Miller make any statements to you in regards to the possibility of injury based on that chute?
A. Yes, he did. As we were leaving there Mr. Miller spoke to me and said, “I don’t know what happened at the mine you worked at, but that could never happen here”.
Q. When he said that what was he referring to?
A. I understood him to be referring to the injury we had discussed with Jonathan, which was a motorman getting crushed between a chute and a motor.
Q. Did you have that — was that conversation something that occurred on August 16th, 2000?
A. I believe that conversation had occurred on August 15th with Jonathan.
Q. Was — do you recall if on August 16th, 2000 the use of warnings in advance of the chute was discussed?
A. On when?
Q. August 16th, 2000. If the use of warnings in advance of the chute on the 800 level was discussed?
A. Yes.
Q. And that was while Michael Miller and Jonathan Farrell were both present?
A. Yes, it was.
Q. What kind of warning devices were discussed?
A. We discussed signs, reflectors, ropes hanging down, things hanging down at the level of the chute that the motorman may hit ahead of time. Strobe lights. There are many different things used in other areas.
Q. When you say ropes and other things hanging down at the level of the chute, would those be placed right in front of the chute or would they be placed at some distance from the chute?
A. Ropes hanging down would be typically hung, oh, five or six feet in front of the chute so that they would hit the motorman first and remind him to duck. Or even closer, depending on the area, how fast they might be going.
Q. Do you recall if Michael Miller or Jonathan Farrell responded to hearing this information?
A. Well, one of the responses on the ropes was that the miners didn’t like ropes because they drug in the mud in the ore cars and got muddy and would slap them with muddy rope, so they didn’t like that idea. And they didn’t think they needed to mark them because everybody knew where they were.
Q. Did both Michael Miller and Jonathan Farrell state that, or was it one of them?
A. I couldn’t tell you which one, or who, but that was the — probably Michael Miller.
Q. Have you ever been on the 1700 level of the Sixteen to One Mine?
A. Yes, I have.
Q. Have you been on that — the 1700 level south of the 49 winds?
A. Yes.
Q. On August 26th, 1999 were you on the 1700 level south of the 49 winds?
A. Yes.
Q. What were you doing in that area on that day?
A. Inspecting the secondary escapeway of the mine.
Q. I’m handing you People’s Exhibit Number 9, what is it?
A. This is a map of the Sixteen to One Mine.
Q. Do you recognize it?
A. Yes.
Q. Is it a fair and accurate depiction of Sixteen to One Mine, or the workings?
A. Parts of it are. At least I couldn’t testify to the upper workings of the mine, those are not accessible.
Q. The 1700 level, would you say that’s a fair and accurate depiction of the 1700 level, particularly south?
A. I believe so, yes.
Q. Could you turn the map so that the jury can see it? Could you please indicate — let me give you some stickers. Could you please indicate, first just by pointing to it, where on the 1700 level you were on August 26th, 1999?
A. Went from this area out to 49 winds and then back to roughly this area.
Q. Were you with anyone at that time?
A. At that time with Billy Van Meter.
Q. And were you — were you inspecting the escapeway?
A. Yes.
Q. Could you please — first of all, could you please tell us what is the escapeway?
A. All underground mines are required to have two escapeways from the deepest level of the mine to the surface, totally independent of each other. You want some history of why?
Q. No.
A. Briefly because of fire. If a fire occurs in the primary the men have a way out of the secondary; two ways out of the mine.
Q. Okay. So did the 1700 level, the area that you inspected, did that comprise part of the secondary escapeway?
A. Yes, it did.
Q. Where is the primary escapeway of Sixteen to One Mine?
A. Primary escapeway is the hoist —
MR. FILTER: Show the jury.
THE WITNESS: The primary escapeway would be the hoist in 49 winds. The route that the men travel daily to and from work is the primary. Up there and out the 800 portal level.
BY MS. MEJLSZENKIER:
Q. So then the actual secondary escapeway, could you please indicate?
A. Secondary escapeway was comprised of the 1500 level, the 1700 level, and the 2200 level, then up through raises, stopes, and another raise to the surface, out approximately here (indicating).
MR. PATCHETT: For the record, that’s on the middle left part of that diagram?
THE WITNESS: Yes. It comes to the surface where this 21 exhaust fan sign is.
BY MS. MEJLSZENKIER:
Q. You say the secondary escape was the 15, 17, or 2200 level. Would that mean those are alternate ways or they’re all part of the escapeway?
A. They were part of the escapeway. Because for each, depending on where you were working in the mine, you would come from over here, from the north, say of 49 winds, across and come to the raise going to the surface on either the 15, 17 or 22.
Q. But you wouldn’t travel all three of them to get out, you would just travel one and then out?
A. One of them and then out.
Q. Okay. Did you talk to Michael Miller about inspecting the secondary escapeway?
A. Yes. That area of the secondary escapeway was supposedly closed. The mine had been — citations had been written on that part of the secondary escapeway before, then they were terminated based on the mine saying they would not work below the 800 level at all, they would close that area of the mine; during my inspection.
MR. PATCHETT: Was that discussed? When was that discussed?
THE WITNESS: Sometime in the summer of 1999. Prior to my inspection in August of 1999. The previous quarter’s inspection the inspector had issued citations, and rather than fix the problems Mr. Miller had chose to close that area of the mine.
BY MS. MEJLSZENKIER:
Q. You were stating then that during — what occurred during your inspection that prompted you to discuss the secondary escapeway with Michael Miller?
A. During my inspection we found people working below the 800 level. When we found them working below the 800 level I told Mr. Miller that I needed to inspect the secondary escapeway.
Q. Did he respond to that?
A. He said, “That’s unfortunate”.
Q. When you were on the 1700 level south of the 49 winds did you notice any chutes?
A. There were chutes there but I didn’t particularly notice them, other than that there were chutes throughout on every level of the mine.
Q. Did you, when you were walking — were you walking on that level?
A. We were walking.
Q. Okay. So were you walking in between the rails, or —
A. Usually between the rails, but when you came to a chute you’d have to walk around it.
Q. Was that for every chute you would have to walk around it?
A. Yes.
Q. What kind of lighting did you have with you?
A. Cap lamp.
Q. So did you — were you in particular looking at the chutes, or were you just inspecting the secondary escapeway?
A. I was inspecting it as more as a walkway than — at that time there were no motors, no electric locomotives on the level.
Q. Are there mine safety and health requirements regarding mine operators conducting real inspections of secondary escapeways?
A. Yes.
Q. And what are those requirements?
A. That they be inspected on a regular basis.
Q. Is that codified in the Code of Federal Regulations?
A. Yes.
Q. Do you know how long the 1700 level comprised part of the secondary escapeway for Sixteen to One Mine?
A. No, I don’t. Prior to — I know it comprised the secondary escapeway up to at least 1998.
Q. Do you know how many years though?
A. Prior to that, no. The reports that I read were — the oldest report was 1998. And it was my — from the records we have, it has been part of it since the mine — in the recent history of the mine.
Q. On September 22nd, 2000 did you conduct an inspection of Sixteen to One Mine?
A. Yes, I did.
Q. On that date did you go to the 1700 level of the mine south of the 49 winds?
A. Yes.
Q. Why did you go into that area?
A. I was requested to go into that area to check on terminations of citation that I had written on the 1700 in my previous inspection.
Q. Let me go back a moment to the secondary escapeway. You stated that mine operators have to conduct regular inspections. How often is that? Is there a certain amount of time per year?
A. There isn’t a set amount, it’s normally done monthly.
Q. Okay. On September 22nd, 2000 did you walk the entire portion of the 1700 level south of 49 winds?
A. Yes.
Q. Were you with anyone?
A. Jonathan Farrell.
Q. Could you please show on Exhibit Number 9 the area that you walked?
A. Again, from 49 winds out to the raise going to the 1500.
Q. And could you please take two of the stickers and put one at the point where you started walking on the 1700 level, and one at the area you walked until on that level.
A. (Witness indicating).
Q. And this was all — you walked this level with Jonathan Farrell; correct?
A. Yes.
Q. Between those blue dots?
A. Yes.
Q. Okay. Could you please take that pen and draw a dash line in between those two points?
A. (Witness indicating on diagram).
Q. Could you please put the date on the blue stickers that you walked that area with Jonathan Farrell?
A. What was that?
Q. The date.
A. The date of that inspection? September.
Q. September 22nd, 2000; is that correct?
A. Yes.
Q. Do you know if a portion of the 1700 level of the mine was ever barricaded?
A. Yes, it was.
Q. I’m sorry, are you done with the dates?
A. Yeah.
Q. Could you please indicate on that map what area was barricaded?
A. This was a barricaded place (indicating). Prior to my inspection on September 22nd there was a sign out at the entrance to the 1700 level from 49 winds saying “authorized personnel only”. After my inspection of September 22nd they barricaded the level approximately here (indicating) with a wooden barricade.
BY MS. MEJLSZENKIER:
Q. So if prior to your inspection on September 22nd the area was marked “authorized personnel only”, but you were in that area to look at some things that had been previously cited, does that mean you were issuing citations on an area of the mine they were not working?
A. Yes, because it was still — even though nobody was working in the area it was still part of the secondary escapeway and had to be maintained as a travelway.
Q. Could you please mark with, write the letter B in the area where the barricade was located?
A. The wooden barricade?
Q. The wooden barricade. Is that a complete barricade that one can get past? How high was it?
A. It was boarded up. You would have had to squeeze between the boards to get past.
Q. But it was possible to get past them?
A. Unlikely, but possible.
Q. Do you know if the barricade of the 1700 level south of the 49 winds that you indicated was ever removed?
A. Yes, it was.
Q. Do you know when it was removed?
A. I don’t know the date, no. It was removed. The mine established a new secondary escapeway in the north end of the mine, then decided they would go do some work in the 1700 south end and took down the barricade, but I don’t know the date they did it.
Q. I don’t have any further questions.
EXAMINATION
BY MR. FILTER:
Q. Mr. Allard, did the officer or the manager of the mine ever state that they had knowledge of mine safety regulations, or had regulations available to them?
A. Yes, they did.
Q. In that position as an operator of the mine are they required to have knowledge of safety regulations?
A. Yes, they are.
Q. Are they required to have regulations made available to them?
A. Yes.
Q. Do operating rules require written examination or certification of management in safety regulations?
A. Repeat?
Q. I’ll go slow. Do operating rules require written examination or certification of management and safety regulations? Maybe I can help you here. Does the operator of a mine have to be licensed?
A. No.
Q. How do they become an operator of the mine?
A. Basically buy it, or be hired to operate it. There’s no formal license.
Q. In your experience as an inspector is there exchange that goes between you and other inspectors and the operators, managers, executive officers of a mine where certain knowledge is spelled out as to what the rules and regulations of that mine are?
A. Yes.
MS. MEJLSZENKIER: Do you know if Michael Miller was certified, had a certification for mine safety?
THE WITNESS: He at one time had a certification as a trainer in metal mines. Underground mines are required
October 29, 2002 8:54 a.m.
MR. FILTER: Good morning, everybody. We’re on 5 time. This is always a good sign. Before we get started there’s a couple things I have to go over with you, a couple items that are evidentiary. First, in your book there is an item — before we even get started we need to take the role; sorry. (Roll was taken) MR. FILTER: Good morning. Okay. In your books there is — there is an item that has not been marked, which will be marked number 21, and it is a certified copy of the death certificate. I’m sorry, it has been marked, it’s marked, as there doesn’t have to be any testimony regarding this. This is a certified copy, and what that means is that it’s self-authenticating. So you won’t really hear any testimony about how it was obtained or anything else. The rules of evidence allow us to introduce this because of the nature of the item, that it’s reliable, and that’s all that really has to be said about that. The other thing that you need to know regarding evidence is on October 16th letters were sent to Michael Miller as well as Jonathan Farrell. The letters were identical, but I am required to read to you this letter so you understand what the next piece of evidence that you will hear about is.
“Dear Mr. Miller: On October 28th” — and this letter is written by Denise. “I, Deputy District Attorney Gale Filter, and the Sierra County grand jury will be conducting an investigation into a criminal matter in which you, as well as the Original Sixteen to One Mine, Incorporated, may be involved. The matter under investigation relates to the death of Mark Fussell on November 6th, 2000. Pursuant to Penal Code section 939.71 I will make the grand jury aware of exculpatory evidence related both to your liability as well as to the liability of the Original Sixteen to One Mine, Incorporated. Exculpatory evidence is that evidence which tends to explain away the charge. If you are in possession of any exculpatory evidence related to either your own liability, or the liability of the Original Sixteen to One Mine, Incorporated, you should provide it to me so that I will be able to present it. You do not have a right to appear and testify before the grand jury. Please provide any exculpatory evidence in a sealed box or envelope to the Sierra County Sheriff’s Office located at 100 Courthouse Square, Downieville, California, within 48 hours from the time that you receive this letter. Delivery of any materials will be accepted between the hours of 8:00 a.m. and 5:00 p.m., and is to be made to any of the following individuals: Sheriff Adams, under sheriff Marshal, or Ms. Blackwell. The Sheriff’s Office will provide you with a receipt for any materials you provide; however, the Sheriff’s Office will not accept any evidence from you that is not delivered in a sealed box or envelope. Any evidence that you choose to provide will subsequently be returned to you. Please be aware that this invitation is being extended to you so that you will have an opportunity, if you so desire, to offer to the grand jury any exculpatory evidence that you might have regarding the matter under investigation. You are not being ordered, compelled or advised to accept this invitation to produce any exculpatory evidence. Sincerely, Denise Mejlszenkier.” This should be marked item 26. I believe it’s next; is that right? 26. (Whereupon People’s Exhibit 26 was marked for identification.) 25 is — let me explain this to you. There was a package that was sent to Sheriff Adams, it was forwarded to us. It remained under seal and it was opened, and it was reviewed by Ms. Mejlszenkier, myself and Mr. Patchett. We are required by law to review that and make a determination as to whether what was submitted constitutes exculpatory evidence. In our view item 25, or Exhibit Number 25, constitutes exculpatory evidence. And what that is — it will speak for itself, so this does not have to be introduced. You won’t hear anything about how did the letter originate or any of that, what it is. If you look at it I believe it’s self-explanatory. But in a nutshell, what it is is a person who is Mr. Miller’s expert, who looked at the control device for the locomotive, and is rendering an opinion as to how that device malfunctioned, or what was the defect in the device; okay? So this can now be marked 25. And 26 is our letter. That is all of the exculpatory evidence, after review, that we found in the materials that were submitted to us. (Whereupon People’s Exhibit 25 was marked for identification.) FOREPERSON: Including the package? MR. FILTER: I can say this, the package that you received yesterday, with the exception of a cover letter, which would never be evidence to begin with, is exactly identical. Is that correct, Tony? MR. PATCHETT: That’s correct. FOREPERSON: To what you already received? MR. FILTER: To what we already received. And with that, if you’re ready, we’ll call the next witness, Tim Hurley.FOREPERSON: Could you stand and raise your right hand?
EDWARD TIM HURLEY called as a witness by the People, having been duly sworn, was examined and testified under oath as follows:
FOREPERSON: Okay. Thank you.
EXAMINATION BY MR. FILTER: Q. Mr. Hurley, could you state your name and spell it, please?
A. Edward Tim Hurley, H-u-r-l-e-y.
Q. And what is your occupation, Mr. Hurley?A. Associate Safety Engineer, Cal OSHA, mining and tunnel unit.
Q. And how long have you been employed with Cal OSHA?
A. Nine years.
Q. And just briefly, could you explain to the jury what the mining and tunneling unit does with Cal OSHA?
A. The mining and tunneling is a specialty unit within Cal OSHA. We specialize in mines and tunnels.
Q. And what’s your primary task with that? Is it to enforce safety regulations?
A. It is to do the mandated inspections as required by Labor Code, to inspect accidents and complaints, and to conduct testing for required licenses.
Q. And what did you do prior to going to work for Cal OSHA?
A. I worked in the mines for 20 years as a geologist, engineer, surveyor, supervision, up to and including manager. Worked underground for 13 of those years.
Q. And when we’re speaking of Cal OSHA, that refers specifically to the California Department of Occupational Safety and Health; correct?
Cal OSHA is a nickname for the Department of Industrial Relations, Division of Occupational Safety and Health.
Q. But to make it clear, you’re primarily responsible for the enforcement of state laws and regulations?
A. Correct.
Q. Were you at the Sixteen to One Mine on November 7th, 2000?
A. Yes.
Q. And what was your reason for being there?
A. To investigate a fatality accident that was reported to us.
Q. And how is that reported to you?
A. With a telephone call to our office from Michael Miller.
Q. Did you take the phone call?
A. Yes.
Q. Did you know Michael Miller the day that you received that phone call?
A. Yes.
Q. And how long had you known Michael Miller?
A. I first knew of Michael Miller in 1984.
Q. And how did you become acquainted with him?
A. I knew of him. He was introduced or pointed out when I was in Alleghany sometime in 1984.
Q. And when you say you were in Alleghany what were you doing there in those years?
A. I was the manager of the Oriental Mine.
Q. Did your work in those days result in being introduced to Mr. Miller?
A. I was only introduced casually, the work did not require it.
Q. Okay. In your position with Cal OSHA did you become involved with the investigation of the death of Mark Fussell?
A. Yes.
Q. When did your investigation regarding this case begin?
A. November 7th, 2000.
Q. And if you look behind you, if you would, please, you recognize that person?
A. Yes.
Q. And who is that?
A. Michael Miller.
Q. And that’s the person that you received the call from on November 7th, was it?
A. I got the call on the 6th.
Q. Okay. Did you, in your investigation of this case, work with any other agency?
A. Yes.
Q. And what agency was that?
A. MSHA.
Q. And what does that stand for?
A. Mine Safety Health Administration, Federal agency.
Q. At some point in time did you go to the Sixteen to One Mine?
A. Yes.
Q. And what day did you go there?
A. In reference to the fatal accident I went there on November 7th, 2000.
Q. On that date did you go to the 1700 level?
A. Yes, I did.
Q. And what was your reason for going to that level?
A. To investigate the site of the accident?
Q. Prior to going to the 1700 foot level did you speak with anyone in management at the Sixteen to One Mine?
A. The representative from MSHA and myself conducted a joint opening conference for the inspection.
Q. And who was that with?
A. Mr. Steve Cain.
Q. Did you speak with anyone from management from the Sixteen to One Mine prior to going to the 1700 level?
A. We spoke with Mr. Miller at that opening conference.
Q. Did you speak with a person by the name of Jonathan Farrell?
A. I don’t recall him being at the opening conference.
Q. Did you go to the 1700 level with anyone?
A. Yes.
Q. And who did you go with?
A. I went with Mr. Cain and Mr. Miller, and maybe Mr.Farrell.
Q. Did anyone explain to you, prior to going to the 1700 level, how Mr. Fussell was killed?
A. Yes.
Q. And who was that?
A. Mr. Miller at the time when he reported the accident.
Q. What did he tell you?
A. He told me his head was injured when he hit his head on an ore chute in the mine.
Q. Did you assume that that was the premise when you went to the 1700 level?
A. That’s part of the inspection.
Q. What did you do when you arrived at the 1700 level?
A. Took photographs, took measurements, took observations.
Q. Based upon your investigation and your observations did you at any point in time issue citations for the investigation that you conducted?
A. Yes.
Q. And did you — let’s focus on some of those citations that you wrote. At any point in time did you write a citation for unsafe equipment?
A. Yes.
Q. And what was the reason for writing that citation?
A. The speed controller on the locomotive was not functioning properly.
Q. And do you recall what regulation that was in violation of?
A. I have to refer to my notes.
Q. Did you bring your notes with you?
A. Yes.
Q. Could you look at them? And let me know when you’re finished looking at your notes.
A. The regulation is number 6995(b), unsafe equipment.
Q. Okay. Your understanding of that regulation, if I may, is if unsafe equipment is found then what is the responsibility of the mine operator or owner in terms of that unsafe equipment?
A. The responsibility is to repair it.
Q. If it’s not repaired is it also the responsibility to remove it from service?
A. Yes.
Q. I’m referring you to another citation. Did you issue a citation for overhead clearance?
A. Yes.
Q. And do you recall what the regulation is for that, for the citation that you issued?
A. The order number is 7010(e), overhead clearance.
Q. And what was your reason for issuing that citation?
A. That was the most direct citation or item we could find in the orders to fit the accident.
Q. Well, my question is why did you issue that citation? What caused you to issue the citation to Sixteen to One?
A. Because the fatal accident resulted — excuse me, was caused by Mr. Fussell hitting his head on a low obstruction and getting pinned against the locomotive.
Q. Doesn’t that regulation specifically apply to what is the responsibility of the operator in terms of conspicuous markings and warnings?
A. It says where there’s a low overhead that could cause a hazard it has to be marked.
Q. It also says that there’s supposed to be warnings as well, does it not?
A. I don’t recall.
Q. Can you take a look? You have the regulation in front of you?
A. No.
Q. While you’re doing that, could you do me a favor, I’ll come back to that for a second, but handing you what is marked Exhibit Number 25 — oh, you have it?
A. Yes.
Q. Could you take a look at that, please, and tell me what it says?
A. Quote, “Where overhead clearance is restricted warning devices shall be installed and the restricted area shall be conspicuously marked.
Q. Did you find either one of those things done? Was there warnings or was there markings, conspicuous marks at the chute that you looked at?
A. No.
Q. I’m now handing you what has been marked as Exhibit 25. Could you take a moment and look at that, please? Have you looked at it?
A. Yes.
Q. Did you inspect the controller on the locomotive?
A. Yes.
Q. Do you understand what that item is that I gave to you?
A. It is somebody’s report of an inspection.
Q. And having read that do you agree with what that report states?
A. I have question on some of these things.
Q. Take them from the top. What’s the first question you have?
A. I saw the controller points had burned. They normally do because every time they make and break they arc, it’s a normal process. Number two, I have no problem. Number 3, there’s no indication of when this resister coil burned through.
Q. Do you have an opinion as to when it did?
A. My experience is that when they burn through they get red hot from long hard continuous application of the electrical energy.
Q. Would the tram striking the chute cause the — that control to become inoperable?
A. Not in my opinion.
Q. Okay. I’m now handing you Exhibit Number 7. Can you take a look at that, sir?
A. Okay.
Q. And that Exhibit 7 was that the area in which the incident took place in which the tram operator, Mark Fussell, struck his head at that chute and that tram?
A. Yes.
Q. And anywhere in there do you see any indication of warnings or conspicuous markings alerting the operator to the presence of the chute?
A. No.
Q. I’m now showing you what has been marked Exhibit 8, could you take a look at that?
A. Okay.
Q. Let’s start from the top. Do you see where the seat is, sir?
A. Yes.
Q. Would it make a difference, in your opinion, if the tram had been turned around? By that I mean to say turned in such a way that the seat would have been on the opposite side of the tracks as opposed to what is depicted in that photo? Does that make sense?
A. Clarify your question, please.
Q. Yeah, I know, it doesn’t make any sense to me either. If you look at the tram, if you look directly at the tram, if the tram was repositioned so it was turned around this way, would it have made a difference in the likelihood
If the operator striking his head against the chute?A. If the tram was turned on the tracks by 180 degrees that would place the seat on the side of the track away from the chute, and therefore there would be no interference.
Q. The likelihood of the operator on that tram striking his head against the chute, would that have reduced the possibility of him striking his head against the chute?
A. It would be almost negligible at that point.
Q. Explain that to me.
A. The likelihood would be nil.
Q. Of him striking his head?
A. With the tram turned by 180 degrees.
Q. Okay. I don’t have any other questions. Just so you understand what’s happened here, the jurors have an opportunity to ask questions. They have to be reviewed by Mr. Patchett, and if they’re appropriate then I ask you what
The questions are. The date on the photo says 11/9, which took it and why is it two days later?A. I took the photo with a camera that was defective on the date indication and I was not capable of resetting it.
Q. That’s good enough.
FOREPERSON: You need a seven year old to change the date.
THE WITNESS: But I’m not seven years old (laughter).
BY MR. FILTER: Q. As you go — did you have an opportunity when you were at that level, sir, to actually go the length of the drift?
A. I went the length of the drift from the shaft back to the point of the accident.
Q. During the course of doing that did you see other chutes?
A. Yes.
Q. Were the chutes all in the same location? That is to say, are all of the chutes that you saw on the same side of the drift?
A. Yes.
Q. If you know, what is the main reason for the cart to be faced as it is in this picture? I assume who wrote this –
JUROR: Is there a main reason why the cart —
MR. FILTER: You can’t ask it.
Q. What is the main reason, if you know, for the cart to be faced as it is in this picture?
A. I don’t know of any reason for it to be faced in that direction.
Q. Let me ask you this: Would you consider that to be good mining procedure to have that cart faced that way as it is in this picture?
A. Can I quote from my notes?
Q. You cannot quote from your notes but you can look at your notes to refresh your memory.
A. Okay. A normal procedure followed by mining companies is to orient the equipment so that the person is in a less hazardous position.
Q. Is there is safety reason or concern for why the cart could not be faced in the opposite direction?
A. There is nothing to prevent it from being turned 180 degrees in the drift.
Q. I have two questions that are similar so I will try to piece them together. By what process would the tram be 26 turned around on the track so the driver is on the other side?
A. The process would involve jacking up the machine, actually derailing it, physically getting it turned and getting it mounted back on the rails in the proper direction.
Q. How long would it take?
A. Depending on the tools at hand, and the qualifications of the personnel, it could take 20 minutes up to an hour.
Q. Is it also possible, sir that you could — I’m horrible at this? Isn’t there a thing like a lift that could be installed to lift it, a winch, is that a possibility?
A. It’s a possibility.
Q. Okay. If you know, whose responsibility would it is to turn around the tram?
A. It would be all the way down through the chain of command in the sense that whoever looked at it and said that thing is not right; it should get turned around, whether it is management or labor.
Q. Okay. One other thing regarding this, you might have said it, I’m sorry, I wasn’t paying attention if you did, is how many people would it take to do that type of job? Turning it around I mean.
A. One person could do it with difficulty; it may be easier with two. Again depending upon the capability of the person.
Q. Okay. Are the chutes typically all positioned on the same side of the tunnel?
A. In this type of mine they’re always on the same side.
Q. Anything else? While we’re waiting for Ms. Kelley, I’m handing you back 7. Is that a fair and accurate depiction of how the front of the tram looked?
A. Yes.
Q. Thank you. Are there any rules or regulations or best practices regarding the minimum number of miners working in one area for safety?
A. The minimum is two.
Q. Okay. Do any of the mines in your experience use a turntable arrangement to reverse direction of equipment?
A. I’ve only seen a turntable once, and that was built into a flat car in order to turn mucking machines so they would be capable of going on a track either to the right or the left.
Q. Okay. Again, if you know, how much time does a person have to mark hazards in a drift that is reopened?
A. When a person goes into a drift that is reopened they should either be marked at that time or corrected at that time.
Q. Prior to November 6th do you have knowledge when the 1700 drift was open?
A. I know they were working in that drift at least the week previous.
Q. Mr. Hurley, in your experience do other mines have the driver on the same side as the chute?
A. Yes, but let me qualify, because I’ve worked in mines where the chutes came in on both sides of the drift. I worked in mines where the chutes came in straight overhead.
Q. Okay. Anything else?
JUROR: What’s the name of that first witness?
MR. FILTER: Kautz, I believe.
Q. If you know, in your investigation did you establish that Fussell — do you know who Fussell is?
A. Yes.
Q. Was alone prior to his being joined by Kautz?
A. It was reported that — it was reported that Fussell came in late, and I believe Kautz went with him back to the 1700 level.
Q. Let me ask you this: When, to your knowledge, if you know, was Fussell at the 1700 level before Kautz arrived?
A. I don’t know.
Q. Okay. Anything else? Is there another question?
FOREPERSON: You’re admonished not to discuss or impart at any time outside of this jury room the questions that have been asked of you in regard to this matter, or your answers, until authorized by this grand jury or the Court to
Discuss or impart such matters. You will understand that a violation of these instructions on your part may be the basis for a charge against you of contempt of court. This admonition of course does not preclude you from — does not preclude you from discussing your legal rights with any legally employed attorney should you feel that your own personal rights are in any way in jeopardy. So thank you very much.THE WITNESS: I understand.
MR. FILTER: Last witness.
STEPHEN CAIN called as a witness by the People, having been duly sworn was examined and testified under oath as follows:
EXAMINATION BY MR. FILTER:
Q. Would you state your name and spell it, please?
A. Stephen Cain. S-t-e-p-h-e-n, C-a-i-n.
Q. Mr. Cain, what’s your occupation?
A. I am the supervisory mine inspector in the Bellvue field office in Washington, State of Washington.
Q. And who is your employer?
A. U.S. Department of Labor, Mine Safety and Health Administration.
Q. What are your responsibilities as a field supervisor?
A. To oversee the inspection, investigation, and compliance follow-up inspections of the offices within my travel area.
Q. And how many offices are within your area?
A. I have 343 mines in the State of Washington and 13 inspectors.
Q. How long have you been employed with the U.S. Department of Labor, Mine Safety and Health Administration?
A. Fifteen and a half years.
Q. Prior to that?
A. I have about ten years of mining experience, and some military.
Q. Is the military experience related to your mining experience?
A. No, sir, it’s not.
Q. What training have you had for your position as inspector?
A. I received 21 weeks of initial training when I hired on with MSHA at the U.S. Department of Labor Mine Academy in Beckley, West Virginia. I have also been trained as a special investigator, which was five weeks in West Virginia, and six weeks in Glenwood, Georgia. I have also ongoing training every year. We do two weeks of follow-up training every other year. I’ve also received accident investigation training, which is about six weeks. I’m a certified mine safety professional, and I have two years of continuing education in criminology.
Q. Does your job require you to use your investigative skills regarding incidents in underground mines?
A. Yes, sir, it does.
Q. During the course of your career how many underground mine investigations have you been involved in?
A. I’ve probably inspected at least 25 or 30 mines in my 15 years.
Q. A month?
A. No mines. Those were ongoing inspections. In other words, continuing every quarter.
Q. Does your job also require you to investigate cases involving the death or serious injury of miners?
A. Yes, sir, it does.
Q. And how many investigations have you conducted related to the death or serious injury of miners?
A. I’ve been involved either as assistant investigator or as the lead investigator in 40 to 50 fatalities.
Q. Did you conduct an investigation relating to the death of Mark Fussell at the Sixteen to One Mine on November 6th, 2000?
A. Yes, sir, I did.
Q. When were you notified of Mr. Fuss ell’s death?
A. I was notified on the afternoon of November 6th by my assistant district manager, Bill Wilson.
Q. When did you begin your investigation?
A. I arrived at the Sixteen to One on November the 7th and began the investigation.
Q. Let me stop you there for a second. How is it that you’re from Washington and you end up in Sierra County doing an investigation of a miner’s death?
A. The way it works in MSHA, and this is an oversight from Congress, is that MSHA does not send investigators from the same area to do fatal investigations. We send investigators from outside the area so that there will be no appearance of impropriety.
Q. Okay. In your investigation did you make a determination as to how Mark Fussell was killed?
A. Yes, sir, I did.
Q. And how did you make that determination?
A. Through investigating the accident scene, interviews, statements, analysis, autopsy. All the information that I gathered during the investigation.
Q. Given your investigation did you determine where the incident took place?
A. Yes, sir, I did.
Q. And where was that?
A. It occurred on the 1700 level of the Sixteen to One.
Q. And you have — do you know what time the incident took place?
A. Yes, sir, the approximate time of death was around 1300 hours on November the 6th.
Q. Did you, in the course of your investigation, look at the area in which the incident occurred?
A. Yes, sir, I did.
Q. And when did you do that?
A. It began on November the 7th. I did the initial walk-through of the area to make sure that the area was secured, and to analyze the area in order to do a further investigation.
Q. Could you briefly describe the area where this incident occurred, how it appeared to you?
A. Yes. The area is down the 1700 drift level of the Sixteen to One. It’s approximately almost to the end of the working area of the drift. It was the last chute prior to a muck pile that blocked the entrance to the further part of
The 1700 level. And it was on that last chute that the 1 incident occurred.Q. What were the lighting sources for the area that you inspected?
A. Well, the typical lighting sources for the miner would have been his cap lamp and the locomotive lights. As far as when we were doing the investigation, we brought in some extra lights, which were floodlights, and our cap lamps
and flashlights to illuminate the area.Q. Did you take measurements of the drift in which the incident occurred?
A. Yes, sir, we did.
Q. What was the reason for taking measurements?
A. To ascertain the location of the locomotive in relationship to the chute, the chute location in relationship to the drift, the size of the drift, the length of the locomotive, the length of the flat car that was being pulled
by the locomotive, and the scene analysis.Q. Regarding the tram, did you take measurements of that?
A. Yes, sir.
Q. And what were the measurements?
A. The tram sits 48 inches at its highest point from the rails, and that’s the top of the battery, which is the highest point on the locomotive. The tram itself is about approximately six feet in length. The flat car with the
tongue is approximately 15 feet in length. So together they’re about 20 foot in length.(Whereupon People’s Exhibit 22 was marked for identification.)
Q. I’m handing you what has been marked now as Exhibit 22, and if you would, take a look at that exhibit, and also the display that’s behind you. Are those the same?
A. Yes, sir, they are.
Q. Do you recognize the photo that’s in front of you?
A. Yes, sir, I do.
Q. And what is that a photo of?
A. That’s a photo of the little tram that was involved in the fatal accident.
Q. Looking over your shoulder, this distance here, from here to here, what was that approximate measurement?
A. That’s approximately three feet.
Q. So you’re talking about the width of the front of the tram; would that be correct?
A. Yes, sir.
Q. And going from here to here, where it says “16 to 1”, what is that measurement?
A. That’s approximately three and a half to four feet.
Q. And this that would be the length of the tram, or the length of the battery box of the tram; is that correct?
A. That’s correct.
Q. And from this distance, you see where I’m at, sir?
A. Yes, sir.
Q. At the bottom of that — I want to get this straight. You see right here, that would be where the track is. Did you take a measurement from where I’m pointing to the top of this?
A. Yes, sir, we did.
Q. And what was that distance?
A. That was 48 inches.
Q. A couple of other questions. You’re familiar with the vehicle that’s displayed in this exhibit?
A. Yes, sir.
Q. All right. On this, what is that?
A. That’s the light illumination.
Q. For the front of the tram?
A. Well, it could be the front or the rear. There’s really not a front or rear on this tram.
Q. What the heck do they call that part of the tram?
A. It’s just one end of it.
Q. Okay. What’s that end? What’s that thing?
A. That could be the front or the rear also. And that’s a light.
Q. So if I understand, if I’m looking at this thing, depending upon what direction you’re going, when the tram is going one direction that the light, depending on which way you’re going, the light could be at the top of the top, if you’re going in another direction the light could be at the bottom of the tram; correct?
A. Correct.
Q. Would that have any impact on what was illuminated?
A. Yes, it would.
Q. How is that?
A. Well, the location of the lights, the light that you’re speaking of that sits up higher on the right side of your picture, illuminates more of the drift because it sits 3 up higher. The design on the front is just to illuminate the rail that’s in front of you, or behind you.
Q. So if this — did you know which way the tram was moving when Fussell struck the chute?
A. It was moving in a direction towards the shaft station, which would have had him moving in a forward position, with him facing the forward position moving in that direction.
Q. Moving in the direction — let’s do it this way, 12 moving in the direction of where the seat is going?
A. Yes, sir.
Q. So in that event, if I understand you correctly, the light was oriented toward the track and not towards the middle or upper reaches of the drift?
A. That’s true.
Q. In your investigation did you learn when work on the 1700 drift began?
A. Yes, sir, I did. I interviewed Jonathan Farrell, and in that interview he stated that they had began work approximately six weeks before the fatal, and they had worked in that drift off and on since that time. And I also received workplace examination records that indicated that four miners had worked in that area on the week of the 22nd through the 28th, in which they indicated that they had worked and inspected in the 1700 level, and that they had trammed in the 1700 level.
Q. During the course of your investigation did you determine what time Vincent Kautz went to the 1700 level?
A. Yes, sir. He arrived at the 1700 level approximately 1200 hours.
Q. And in your investigation did you determine what time Mark Fussell started work that day?
A. Yes, sir. He arrived late for his shift and got to the 1700 level approximately 730 hours.
Q. To your knowledge, from 730 hour, that’s military hours, that’s military time for 7:30 in the morning; correct?
A. Yes, sir.
Q. From 7:30 in the morning till 12:00 o’clock if the afternoon was they’re anyone working with Fussell?
A. No one worked with him, but Jonathan Farrell did go to the 1700 level and met him back at that raise and they had a discussion in regards to him showing up late for work.
Q. Okay. So then what you’re saying, at lea
MR. FILTER: Okay. Well, first let me begin on behalf of Denise, Tony and myself, this has been truly a pleasure working with you. I’m glad we came in on time. These type of cases are extremely important to you. They’re extremely important to you. They’re tough cases. That’s one of the reasons that we’re here. Tony, it’s always been a pleasure. Tony and I go back many years. The one thing that I did have an opportunity to do over the last day and a half is have a glimpse as to what type of lawyer Denise is going to become. There’s no doubt she’s going to be a real credit to our profession, which is heartwarming.
JUROR: Is she old enough though?
MR. FILTER: She will be in a couple years. First what I want to do is I want to go over a couple legal concepts with you and sort of set up what the law is and give you some insight as to what the jury instructions are. Sixteen to One, Michael Miller and Jonathan Farrell, in the indictment, have been charged with violation of Penal Code Section 192, involuntary manslaughter. And in order for us to prove this, in order that you can reach a decision to indict, you’ve got to find that the killing was in the commission of an unlawful act or a killing, “or”, not “and”, or a killing was done without due caution and circumspection. Under Labor Code Section 6425, we’re obligated to prove that three things occurred. One is that Sixteen to One, Miller and Farrell, had direction, management, control or custody of the workplace. Secondly, that Sixteen to One, Miller and Farrell, willfully violated safety standard, California Code of Regulations Title 8, Section 7010(e)(9-60). What that section is is the clearance, the warnings and the markings, the conspicuous markings. This is the only thing that applies to 6425, was there a willful violation of the warnings and markings. Nothing else should be taken into consideration for that particular charge. And that that violation caused the death of Mark Fussell. Labor Code Section 6425, what is meant by a willful violation of that particular section, and what that is, is that there’s got to be a restricted overhead clearance. I’m sorry, restricted overhead clearance requires that warning devices be installed, and restricted area must be conspicuously marked. Willful. Important concept. The term “willfully” does not require any intent to violate the law or to injure another. The defendant must only have, quote, “a purpose or willingness to commit the act or make the admission”. Two things that are the easiest to understand, you get pulled over, you’re doing 75 in a 65 mile-an-hour zone, said officer, I didn’t intend to speed, I didn’t even know what the speed limit was. Still a violation because it’s the act, it’s not what it is that you intend to do. Or that the admission would be that if the law requires you to wear a seat belt, and you don’t have your seat belt on, that constitutes an admission because you are obligated to do so. About contributory negligence. The instructions that you will hear Tony read in a little bit says that if you find the conduct of the targets of this proceeding, that is Farrell and Miller, and Sixteen to One, caused the death of Mark Fussell, quote, “then it is no defense that the conduct of some other person, even the deceased, contributed to the death”. So you can’t consider that. If, for example, if
there was evidence heard in this case that Fussell was inattentive, looking the wrong way and started the tram, that doesn’t come into play because this isn’t a law that accepts or considers contributory negligence. So there is no such
thing as contributory negligence in this particular case. General intent. “General intent does not require an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he or she is
acting with general criminal intent, even though he or she may not know that his or her conduct is unlawful.” So what that simply says is that we go back to the concept of speeding. That is to say did you intend to commit the act. But I didn’t know it was illegal. Doesn’t matter, because it was the act that you did and not what is the intent that is important. Gross negligence. “Those negligent acts which are aggravated, reckless or flagrant, in which — flagrant –
FOREPERSON: Easy for you to say.MR. FILTER: “Aggravated, reckless or flagrant, or were such a departure from what would be the conduct of an ordinarily prudent, careful person under the same circumstances as to be contrary to a proper regard for human life, or to constitute indifference to the consequences of those acts.” In other words, you do the act and you don’t really think about the consequences as to what might occur, and at the same time knowing, because of the position that you’re in, or just through regular knowledge of what an ordinary, reasonable person would know, that these acts in themselves, or these omissions in themselves are dangerous. It’s one of my favorite movies, which probably says a great deal about me, it was The Gauntlet with Clint Eastwood. For those of you who have never seen this movie, Clint is sent to pick up a witness who is going to testify against the mob, and he goes through this gauntlet. The people who are supervisors are out to get him, everybody is trying to stop Clint from delivering this witness. And the bus has got 50,000 bullet holes in it but Clint still arrives. And that movie was called The Gauntlet. Everybody was out for a piece of Clint. Mark Fussell also had a gauntlet, and the gauntlet was as follows: Mark had to get through dangerous chutes, wrong position of locomotive. Go back to what I told you about the jury instruction, what constitutes manslaughter. And it may be a lawful act that is dangerous that constitutes the grounds for finding someone liable for manslaughter. In other words, nobody said it was a violation to have the locomotive in the wrong position, nobody said it was a violation that the chutes extended over the track; the point is, those conditions give rise, when considered with other factors, of gross negligence. So those can be considered by you to be part of the package of what the gross negligence amounted to. There were no warning devices. Now that is a violation. There was no conspicuous markings. That is a violation. And there was a defective control system. That was a violation. And when you take a look at all of these, and you start beginning to look at these pictures, and you begin to think that if that little light had been blinking we probably wouldn’t be here today. If that light had been blinking on November 6th in 2000, and had been located in that relative position as Mark Fussell was when he got on that tram, we would not have been here, but for a cheap device. Dangerous chute. We go back, and you recall that — you look at this, and you look where the hair was located. You don’t have to be a miner to understand that this thing was just inherently dangerous. If you put a tram
on it then it becomes even more dangerous. You look at where the seat is located, you look where the chute is located, and you look what the position was of the tram, the seat in relationship to the chute, and the fact that it was on the wrong side of the tracks, and that it would have taken 15, 20 minutes, a half hour, 40 minutes, to reposition that tram, and it leads an ordinarily reasonable person to no other conclusion that it was inexcusable. Defective control. Two-inch clearance. And as several witnesses testified, in order to clear that chute it would require the operator to bend totally over behind the every compartment of that tram. Worse, not only do you have those five conditions, or those five conditions leading to this particular situation, on November 6th, 2000, but on 8/15, Sixteen to One, Miller and Farrell, all received notice these chutes are dangerous. And indeed, two and a half months before this incident took place. They might as well have received a red flag regarding what the danger of those chutes were. And indeed, going back to August 15th, 2000, they actually did repairs, or did put warning signs up, did put streamers up, because it indicates that they knew the inherent danger of low chutes, particularly in a confined space. No warnings. No one. Not a single person said they saw any sign of a warning at the 1700 level. No one said that they saw any kind of conspicuous markings on any of the chutes at the 1700 level. And clearly, I mean there’s nothing there. There is nothing that could even, by the stretch of anyone’s imagination, say that constitutes a sign or a warning, or for that matter conspicuous. And when you look at the facial hair and the blood that’s on the corner of that chute, it really drives home exactly how dangerous this really was. Because given the location of the person with the facial hair, and what the position of that tram was, one didn’t have to be a miner to know that this was a particularly dangerous situation. Gross negligence. Mark Fussell deserves his day in court. He deserves to have a trial regarding these violations that amount to two felonies. I’ll leave you with this thought: that little device up there, according to one person who testified, probably runs 8, 10, 15, 20 dollars. A sign would have cost six dollars. Streamers, they probably could have cut up bed sheets, stuck them on with tape, white. Probably would have served as some kind of alert. Vincent Kautz said that he was being paid approximately $14 an hour. And although I’m not good at math, I’ll give them the benefit of the doubt, they could have taken two men a half hour to reposition that tram, and that means it would have taken them $15 dollars worth of labor to do it. That man’s life is priceless. And no matter how much gold is in that damn mine, no one will ever replace that life or buy it back. And I’m asking you, if you would, to return an indictment against Sixteen to One, Michael Miller and Jonathan Farrell, for the counts that were alleged in the indictment. Thank you very much. It’s been totally a pleasure working with you.FOREPERSON: You just mentioned the two felonies, yet in Count One it says not amounting to a felony.
MR. FILTER: The act does not — when you look at the jury instructions, the act itself does not have to be a felony. Okay? The act itself does not have to be the basis for the felony. Okay? Tony.
MR. PATCHETT: Ladies and gentlemen of the grand jury, it is my duty to instruct you on the law that applies to this case. You will have these instructions in written form in the jury room to refer to during your deliberations. You must base your decision on the facts and the law. You have two duties to perform. First, you must determine facts from the evidence received and not from any
other source. A fact is something established directly or circumstantially by the evidence. Second, you must apply the law that I state to you to the facts as you determine them and in this way arrive at your decision. You must accept and follow the law as I state it to you, whether or not you agree with the law. If anything concerning the law said by the prosecutors in their statements, or at any other time during the hearing, conflicts with these instructions on the law, you must follow the instructions. You must not be influenced by pity for the persons who are targets of this proceeding, or by prejudice against them. You must not be biased against the persons who are targets of this proceeding because they are the subject of this hearing. None of these circumstances is evidence of probable cause to indict, and you must not infer or assume from any or all of these circumstances that he or she is more likely to have committed an offense for which an indictment is sought than not. You must not be influenced by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling. Both the people and the persons who are the targets of this proceeding have a right to expect that you will conscientiously consider and weigh the evidence, apply the law and reach a just result regardless of the consequences. If any rule, direction or idea is repeated or stated in different ways in these instructions, no emphasis is intended and you must not draw any inference because of its repetition. Do not single out any particular sentence, or any individual point or instruction, and ignore the others. Consider the instructions as a whole and each in the light of all the others. The order in which the instructions are given has no significance as to their relative importance. Statements made or documents prepared or presented by the prosecutors during the hearing, other than those received into evidence, are not evidence. Do not assume to be true any insinuation suggested by a witness — by a question asked a witness. A question is not evidence and may be considered only as it enables you to understand the answer. Do not consider for any purpose any offer of evidence that was rejected, or any evidence that was stricken or withdrawn. Treat it as though you had never heard of it. You must decide all questions of fact in this case from the evidence received in this proceeding and not from any other source. You must not make any independent investigation of the facts or the law, or consider or discuss facts as to which there is no evidence. This means, for example, that you must not on your own visit the scene, conduct experiments, or consult reference works or persons for additional information. You must not discuss this case with any person except a fellow juror, and then only after the case is submitted to you for your decision, and only when all jurors are present in the jury room. You have been given notebooks and pens, leave them on your seat in the jury room when you leave each day and at each recess. You will be able to take them into the jury room when you deliberate. Word of caution. You may take notes, however, you
should not permit note taking to distract you from the ongoing proceedings. Remember you are the judges of the believability of witnesses. Notes are only an aid to memory and should not take precedence over recollection. A juror who does not take notes should rely on his or her recollection of the evidence and not be influenced by the fact that other jurors do take notes. Notes are for the note-taker’s own personal use in refreshing his or her recollection of the evidence. Finally, should any discrepancy exist between a juror’s recollection of the evidence and a juror’s notes, or between one juror’s recollection and that of another, you may request that the reporter read back the relevant testimony, which must prevail. The grand jury shall receive no other evidence than such as, one, given by witnesses produced and sworn before the grand jury; two, furnished by writings, material objects, or other things presented to the senses; or three, contained in a deposition that is admissible by law. The grand jury shall not receive any evidence except that which would be admissible over the objection at the trial of a criminal action. The word “defendant” applies equally to each defendant unless you are expressly instructed otherwise. The word “willfully”, when applied to the intent with which an act is done or omitted, means with the purpose or willingness to commit the act or to make the omission in question. The word “willfully” does not require any intent to violate the law or to injure another, or to acquire any advantage. The word “knowingly” means with knowledge of the existence of the facts in question. Knowledge of the untruthfulness of any act or omission is not required. A requirement of knowledge does not mean that the act must be done with any specific intent. Evidence consists of testimony of witnesses, writings, material objects, or anything presented to the senses and offered to prove the existence or nonexistence of a fact. Evidence is either direct or circumstantial. Direct evidence is evidence that directly proves a fact without the necessity of an inference. It is evidence which, by itself, if found to be true, establishes the fact. Circumstantial evidence is evidence that if found to be true proves a fact from which an inference of the existence of another fact may be drawn. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts established by the evidence. It is not necessary that facts be established by direct evidence, they may be proved also by circumstantial evidence, or by a combination of direct evidence and circumstantial evidence. Both direct evidence and circumstantial evidence are acceptable as a means of proof; neither is entitled to any greater weight than the other. However, you are not permitted to return an indictment based on circumstantial evidence unless the proved circumstances are not only consistent with the theory that the persons who are targets of this proceeding are responsible for the crime, but cannot be reconciled with any other rational conclusion. Further, each fact which is essential to complete a set of circumstances necessary to support an indictment of the persons who are targets of this proceeding must be established by evidence constituting reasonable or probable cause. In other words, before an inference essential to support an indictment may be found to have been established by evidence constituting reasonable or probable cause, each fact or circumstance on which the inference necessarily rests must be established by reasonable or probable cause. Also, if the circumstantial evidence as to any particular count permits two reasonable interpretations, one of which supports the indictment of the persons who are targets of this proceeding, and the other does not, you must adopt that interpretation that does not and reject that interpretation that does. If, on the other hand, one interpretation of this evidence appears to you to be reasonable, and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable. Evidence has been admitted against one or more of the targets of this proceeding, and not admitted against the other. At the time this evidence was admitted you were instructed that it could be considered by you against the other targets — could not be considered. Do not consider this evidence against the other target. The prosecutors are not required to call as witnesses all persons would may have been present at any of the events disclosed by the evidence, or who my appear to have some knowledge of these events. The prosecutors are not required to produce all objects or documents mentioned or suggested by the evidence. Every person who testifies under oath or affirmation is a witness. You are the sole judges of the believability of a witness and the weight to be given the testimony of each witness. In determining the believability of a witness you may consider anything that has a tendency in reason to prove or disprove the truthfulness of the testimony of the witness, including, but not limited to, any of the following: The extent of the opportunity or ability of the witness to see or hear or otherwise become aware of any matter about which the witness has testified; the ability of the witness to remember or to communicate any matter about which the witness has testified; The character and quality of that testimony; the demeanor and manner of the witness while testifying; The existence or nonexistence of a bias, interest or other motive; evidence of the existence or nonexistence of any fact testified to by the witness; The attitude of the witness toward this action, or toward the giving of testimony; A statement previously made by the witness that is consistent or inconsistent with the testimony of the witness; An admission by the witness of untruthfulness. Discrepancies in a witness’s testimony, or between his or her testimony and that of others, if there were any, do not necessarily mean that the witness should be discredited. Failure of recollection is a common experience, and innocent misrecollection is not uncommon. It is a fact also that two persons witnessing an incident or a transaction often will see or hear it differently. Whether a discrepancy pertains to a fact of importance or only to a trivial detail should be considered in weighing its significance. A witness who is willfully false in one material part of his or her testimony is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point unless from all the evidence you believe the probability of truth favors his or her testimony in other particulars. You are not bound to decide an issue of fact in accordance with the testimony of a number of witnesses which does not convince you as against the testimony of a lesser number or other evidence which appeals to your mind with more convincing force.
You may not disregard the testimony of the greater number of witnesses merely from caprice, whim, or prejudice, or from a desire to favor one side against the other. You must not decide an issue by the simple process of counting the number of witnesses. The final test is not in the number of witnesses but in the convincing force of the evidence. Testimony concerning any particular fact which you believe given by one witness whose testimony on that fact does not require corroboration is sufficient for the proof of that fact. However, before finding any fact required to be established by the prosecution to be proved solely by the testimony of such a single witness, you should carefully review all of the testimony upon which the proof of such fact depends. Motive is not an element of the crimes being alleged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this proceeding. Presence of motive may tend to establish probable cause to return an indictment in this proceeding; absence of motive may tend to establish innocence. You will therefore give its presence or absence, as the case may be, the weight to which you find it to be entitled. A confession is a statement made by an accused other than at a hearing in which he has acknowledged his or her guilt of the crimes for which he is accused. In order to constitute a confession the statement must acknowledge participation in the crimes as well as a required criminal intent or state of mind. An admission is a statement made by an accused, other than at this hearing, which does not by itself acknowledge his guilt of the crimes for which he is accused, but which statement tends to prove his guilt when considered with the rest of the evidence. You are the exclusive judges as to whether the persons who are targets of this proceeding made a confession or an admission; and if so, whether that statement is true in whole or in part. Evidence of an oral confession or an oral admission of the persons who are targets of this proceeding, not made in court, shall be viewed with caution. Evidence has been received from which you may find that an oral statement of motive was made by a target of the indictment before the offense with which he is charged was committed. It is for you to decide whether the statement was made by a target of the proposed indictment. Evidence of an oral statement ought to be viewed with caution. No person may be indicted for a criminal offense unless there is some proof of each element of the crime independent of any confession or admission made by him outside of this proceeding. The identity of the person who is alleged to have committed a crime is not an element of the crime. Such identity may be established by a confession or admission. A person is qualified to testify as an expert if he has special knowledge, skill, experience, training or education sufficient to qualify him as an expert on the subject to which his testimony relates. A duly qualified expert may give an opinion on questions in controversy at this proceeding. To assist you in deciding such questions you may consider the opinion, with the reasons given for it, if any, by the expert would gives the opinion. You may also consider the qualifications and credibility of the expert. You are not bound to accept an expert opinion as conclusive but should give to it the weight to which you find it to be entitled. You may disregard any such opinion if you find it to be unreasonable. In determining the weight to be given to an opinion expressed by any witness who did not testify as an expert witness you should consider his or her credibility, the extent of his or her opportunity to perceive the matters upon which his or her opinion is based, and the reasons, if any, given for it. You are not required to accept such an opinion but should give it the weight, if any, to which you find it entitled.
In examining an expert witness counsel may propound to him a type of question known in the law as a hypothetical question. By such a question the witness is asked to assume to be true a set of facts and to give an opinion based on that assumption. In permitting such a question it does not necessarily mean that all the assumed facts have been proved, it only determines that those assumed facts are within the probable or possible range of the evidence. It is for you, the grand jury, to find from all the evidence whether or not the facts assumed in the hypothetical question have been proved. If you should find that any assumption in such a question has not been proved you are to determine the effect of that failure of proof on the value and weight of the expert opinion based on the assumed facts. A corporation, regardless of the number of persons or stockholders who compose it, is regarded in law as a single person. The law vests it with the identity and certain privileges of a natural person, and holds it to the same responsibilities that rest upon a natural person. The term “person” as used in these instructions include a corporation. In the crimes charged in counts One and Two of this proposed indictment there must exist a union or joint operation of act or conduct and general criminal intent. To constitute general criminal intent it is not necessary that there should exist an intent to violate the law. When a person intentionally does that which the law declares to be a crime he is acting with general criminal intent even though he may not know that his act or conduct is unlawful. In the crime charged in Count One, involuntarily manslaughter, there must exist a union or joint operation of act or conduct and criminal negligence. “Criminal negligence”, “gross negligence”, means conduct which is more than ordinary negligence. Ordinary negligence is the failure to exercise ordinary or reasonable care. “Criminal negligence”, “gross negligence”, refers to a negligent act or acts which are aggravated, reckless and gross, and which are such a departure from what would be the conduct of an ordinary, prudent, careful person under the same circumstances as to be contrary to a proper regard for human life or to constitute indifference to the consequences of those acts. The facts must be such that the consequences of the negligent acts could reasonably have been foreseen, and it must appear that the death was not the result of inattention, mistaken judgment or misadventure, but the natural and probable result of an aggravated, reckless or grossly negligent act. To constitute the crime of involuntary manslaughter there must be, in addition to the death, an unlawful act or omission which was a cause of that death. A proximate cause of the death is a cause which in natural and continuous sequence produces the death, and without which the death would not have occurred. There may be more than one proximate cause of the death. When the conduct of two or more persons contributes concurrently as a proximate cause of death the conduct of each such person is a proximate cause of the death if that conduct was also a substantial factor contributing to the result. A cause is concurrent if it was operative at the moment of the death and acted with another cause to produce the death. If you find that the conduct of the persons who are targets of this proceeding was a proximate cause of the death to another person, then it is no defense that the conduct of some other person, even the deceased, contributed to the death. When a person commits an act or makes an omission through misfortune or by accident under circumstances that show neither criminal intent nor purpose, nor criminal negligence, he does not thereby commit a crime. The persons who are targets of this proceeding are accused in Count One of the proposed indictment of having committed the crime of involuntary manslaughter in violation of Section 192(b) of the Penal Code. Every person who unlawfully kills a human being without malice aforethought, and without an intent to kill, is guilty of the crime of involuntary manslaughter in violation of Penal Code Section 192(b). In order to prove such crime each of the following elements must be proved: A human being was killed; the killing was unlawful. A killing is unlawful within the meaning of this instruction if it occurred, one, during the commission of an unlawful act which is inherently dangerous to human life under the circumstances of its commission; or two, in the commission of an act ordinarily lawful, which involves a high degree of risk of death or great bodily harm, without due caution and circumspection. An unlawful act includes: A violation of California Code of Regulations, Title 8, Section 7010(e)(9-60); A violation of the California Code of Regulations, Title 8, Section 6995(b); A violation of Code of Federal Regulations Title 30, Section 57.9306; A violation of Code of Federal Regulations Title 30, Section 57.14100. The term “without due caution and circumspection” refers to a negligent act or acts which are aggravated, reckless and gross, and which are such a departure from what would be the conduct of an ordinarily prudent, careful person under the same circumstances as to be contrary to a proper regard for human life, or to constitute indifference to the consequences of such acts. The facts must be such that the consequences of the negligent acts could reasonably have been foreseen. It must also appear that the death was not the result of inattention, mistaken judgment or misadventure, but the natural and probable result of an aggravated, reckless, or grossly negligent act. California Code of Regulations Title 8, Section 6995(b)(14-26), which applies to mining equipment and practices, requires unsafe equipment or machinery, shall be removed from service immediately. Code of Federal Regulations Title 30, Section 57.9306, which relates to safety devices, prohibitions and procedures for railroads in mines, requires where restricted clearance creates a hazard to persons on mobile equipment warning devices shall be installed in advance of the restricted area, and the restricted area shall be conspicuously marked. Code of Federal Regulations Title 30, Section 57.14100, which relates to safety devices and maintenance requirements for machinery and equipment in underground mines requires: (b), defects on any equipment, machinery and tools that affect safety shall be corrected in a timely manner to
prevent the creation of a hazard to persons; (c) when defects make continued operation hazardous to persons, the defective items, including self-propelled
mobile equipment, shall be taken out of service and placed in a designated area posted for that purpose, or a tag or other effective method of marking the defective items shall be used to prohibit further use until the defects are corrected. The persons who are the targets of this proceeding are accused of having committed the crimes set forth in the proposed indictment. The prosecution has introduced evidence for the purpose of showing that there is more than one act or omission upon which an indictment on Count One may be based. The persons who are the targets of this proceeding may be indicted if the evidence establishes proof constituting reasonable or probable cause that he committed any one or more of the acts or omissions. However, in order to return an indictment as to Count One at least eight or more grand jurors must agree, as to each individual8. Transcript of hearing on May 28th.
7. Miller Memorandum to Demurrer
6. Sixteen to One Response to CDAA response
5. CDAA response to Plaintiff Memorandum of Points
4. Entry of Default
3. Sixteen To One Reply to Demurrer
2. CDAA Motion Demurrer
1. Complaint for Damages#8 Transcript from hearing on May 28, 2004.
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SIERRA
MICHAEL MILLER,
Plaintiff,
No. 6293
Vs
GALE FILTER, et. al.
Defendants
MAY 28, 2004DEMURRER
Before Hon. RICHARD HAUGNER
APPEARANCES:
For the Plaintiff: MICHAEL MILLER
In Propria PersonaAlleghany, CA
For the Corporation: GEORGE R. GILMOUR,
Attorney at Law
6536 Arlington
Richmond, CA 94805For the Defendant: THOMAS S. KNOX
Attorney at Law
KNOX, LEMMON & ANAPOLSKY, LLP
One Capitol Mall, Suite 700
Sacramento, CA 95814Judy Bishop, CSR No. 2261
May 28, 2004
THE COURT: In the Miller versus Gale Filter et.al. Everyone ready?
MR. KNOX: Good afternoon, I’m Tom Knox for the defendants and moving party. I apologize to the Court on two fronts. We had this calendared at 2:30 and put it on our moving papers. Apparently the Court had this on a 1:30 calendar. We obviously messed up and I apologize for keeping the Court waiting.
THE COURT: I think it was set for 2:30. I wondered why it was set in the middle of all the child support matters.
MR. KNOX: Apparently —
THE COURT: Your office evidently goofed in not sending the copies to the pro per plaintiff.
MR. KNOX: I’ll find out what happened. We may have — well, I don’t know what happened.
THE COURT: He did sign an opposition, which was filed by Mr. Gilmour.
MR. KNOX: I’ve taken a look at it.
THE COURT: All right. Now, Mr. Miller, do you have the response?
Mr. MILLER: Yes.
THE COURT: Okay. And do you, Mr. Knox, have what was filed today?
MR. KNOX: I have. Both parties gave me their papers when I came in.
THE COURT: The second memorandum of points and authorities. All right. And, Mr. Gilmour, you represent the corporation?
MR. GILMOUR: The corporation.
THE COURT: All right. Mr. Knox, you’re the moving party, do you have — let me say for the record I read the Complaint itself, the demurrer and notification of demurrer, the points and authorities, the opposition filed by George Gilmour. Mr. Gilmour and Mr. Miller. And the response filed by Mr. Knox’s firm. And I’ve also read the two memorandums of points and authorities, which were filed today; one by Mr. Miller and the other by Mr. Gilmour. You have anything to add to what I’ve already read?
MR. KNOX: You’ve had a lot of paper on this, Judge. Just to boil it down, my clients were — it’s indisputable I think my client’s were advised they were deputy district attorneys. They took the oath. There apparently is some irregularity about whether an appointment got filed, but it’s very clear they took an oath. They performed acts that according to the face of the Complaint itself could only have been performed by deputy district attorneys. Seems to me they are probably de jure deputy district attorneys, but they’re certainly de facto district attorneys. They performed acts presenting evidence to the grand jury, filing criminal complaints openly in a way that cannot be done unless everyone believes, and you honestly believe, you’re a deputy district attorney. It seems to me the immunity has to extend that far. The law just wouldn’t put deputies at risk because there was a failure at some other level to file this appointment. So for all those reasons we think immunity applies and the Court can make that determination from the face of the Complaint.
THE COURT: Okay. Mr. Gilmour on behalf of the corporation.MR. MILLER: I’ll go first.
THE COURT: Mr. Miller on behalf of himself.
MR. MILLER: Yes, sir. Thank you very much. First of all on the question of whether — on the surface my service papers to the defendants clearly states that it was in pro per. The actual language is right in big
print, in pro persona.THE COURT: That’s not really relevant to the issue before us today.
MR. MILLER: I really —
THE COURT: You have all the papers and Mr. Knox now has papers he never had before.
MR. MILLER: No, sir, I don’t have all the papers.
THE COURT: Then you get copies from Mr. Knox and Mr. Gilmour.
MR. MILLER: Well, the case is perhaps are a little more complex than Mr. Knox has stated as far as prosecutorial immunity goes. The situations are such that we do not believe, I do not believe that prosecutorial immunity is absolute in this case. And the facts would bear that out. Mr. Knox’s clients were not district attorneys, and their behavior was not that of the district attorney. They were not employed by Sierra County. They were not employed by the State of California. They did not work under the authority of the Attorney General. Their employer clearly is a nongovernmental corporation, which lobbied for and received a specific contract from the California Department of Industrial Relations. And that contract contains specific language that the contractors and the members of the CDAA are not privileged under the government standards, and the government is held harmless from all of their activities. Their behavior was not that of a district attorney. And the California District Attorneys Association has a web site. It’s a fine organization. We’re certainly not here
To — I’m not here to challenge the broad concept of immunity. But this was willful, and it was knowing, and it was extremely detrimental to me. I was accused of killing somebody by these people. And that statement is still with
me today, and I really have no other recourse to go after this and correct this injustice that was put upon me. The interesting thing about their web site, it
says, “The Ethical Duties of a Prosecutor”. So it clearly states out by their own web site that in administering justice a prosecutor must abide by a strict code of ethics. “The prosecutor must always strive to discover the truth
while carrying out all official duties. Additionally, the prosecutor must exercise the utmost professionalism as he or she is in the position of demonstrating ideal social behavior for others to follow. At any level, the primary role of the prosecutor is to investigate and prosecute impartially, in
quotations, criminal suspects on behalf of the People. Guilt shall not escape or innocence suffer. Cited Berger vs. United States, 1935, 295 U.S. 78, 88. In carrying out their duties prosecutors are required to follow statutory regulations imposed on them by California Business and Professional Code section 6068 (a)-(d). These include upholding the federal and state constitutions and laws; respecting courts of justice and judicial officers; maintaining only such actions as appear to be legal or just; and employing only such means as are consistent with the truth and never seeking to mislead a judge or a judicial
officer.” In this very courtroom all of these absolute requirements were violated. And this isn’t a situation of randomly seeking revenge. This case was — we have transcripts from grand jury records. We have transcripts from the hearings themselves. They prepared the case, the CDAA people, because they needed to create cases to fulfill their contract. We weren’t the first —THE COURT: You’re proceeding as though this was an evidentiary hearing and it’s not.
MR. MILLER: Well —
THE COURT: Basically you’re stuck with your Complaint and his demurrer.
MR. MILLER: Right.
THE COURT: That’s it.
MR. MILLER: Right.
THE COURT: In the demurrer we assume everything in the Complaint is true.
MR. MILLER: Okay.
THE COURT: Your allegations, et cetera.
MR. MILLER: Well, his demurrer is not. I don’t think it’s true at all. Because there seems to be quite a few different variations of — for example, if a prosecutor stabs a defendant, would he be held criminally liable?
THE COURT: It depends on whether he is acting in the scope of his employment.
MR. MILLER: Well, I would imagine that if the prosecutor stabbed a defendant —
THE COURT: Depends on why.
MR. MILLER: So it depends on why?
THE COURT: Yeah. But the question here is one of whether or not immunity attaches to the fab four of Sierra County. Mr. Knox’s position has always been that it does because, one, they probably are district attorneys de jure
even though the appointment wasn’t filed. The second argument is if they aren’t district attorneys de jure they’re de facto district attorneys and de facto deputy district attorneys are entitled to immunity if they’re acting within
the scope of their employment.MR. MILLER: They certainly are not acting within the scope of their employment. And Mr. Knox also questions, he said how would the law — he just said this — just would not put prosecutors at risk. The law. We’re here to talk
about the law, that’s what I understand. And I think there’s such a narrow interpretation of, quote, the law for immunity, that it has most of the people in this country extremely troubled. And —THE COURT: I’m not here to worry about the rest of the country.
MR. MILLER: I’m not either.
THE COURT: I’m strictly interested in the Complaint and the demurrer.
MR. MILLER: Well, the Complaint —
THE COURT: And the grounds for the demurrer.
MR. MILLER: The Complaint is in the sense of that analogy about a prosecutor stabbing somebody. I think the facts would have something to do with that.
THE COURT: That has nothing to do with this.
MR. MILLER: Okay. And let me ask, may I ask something of Jan Hamilton that’s directly related to her direction?
THE COURT: Its not an evidentiary hearing. If there’s something you want to ask her you should have filed a counter affidavit.
MR. MILLER: I never received — Your Honor, I never received anything from the defendants.
THE COURT: I find that hard to believe because you filed — you filed a response and opposition.
MR. MILLER: Let me see if I can help you with that.
THE COURT: We’re not here for an evidentiary hearing as such.
MR. MILLER: The interests of the Original Sixteen to One and my interest in this case for damages are very different. We have a de facto Chinese wall in place with the corporation as far as what goes on with Original Sixteen to
One and what goes on with Michael Miller in pro per. Michael Miller received nothing from the defendants, not even an answer. Original Sixteen –THE COURT: They hadn’t answered the demurrer?
MR. MILLER: I received nothing from them. Nothing.
THE COURT: You must have had something because you signed the opposition.
MR. MILLER: No, sir, I received nothing from them.
THE COURT: As I say, I find that hard to believe.
MR. MILLER: I came to court —
MR. GILMOUR: Your Honor, I can speak to that? I sent Mr. Miller the last page for his signature, the last page of pleadings. He did not get a full set.
THE COURT: He signed something not knowing what he was signing?
MR. GILMOUR: That’s correct.
MR. KNOX: You talking about the Complaint or the opposition?
MR. GILMOUR: The opposition, that’s correct.
THE COURT: You had him sign a document he hadn’t read?
MR. GILMOUR: At the time, because of the time constraints that we were under, that’s right.
THE COURT: That’s not an excuse.
MR. GILMOUR: No, but it’s a fact.
THE COURT: You put him in jeopardy.
MR. GILMOUR: But it’s a fact.
THE COURT: Go on.
MR. MILLER: Well the declaration, I mean I would — I had no opportunity to send a revised declaration by Jan Hamilton. I spoke with her on the telephone and I believe she’s in a position to recant some of the statements that she’s made. I felt she was given a piece of paper again from the offices of Mr. Knox, and they are –
THE COURT: This is your allegation.
MR. MILLER: Well, see, she’s sitting right here.
THE COURT: Anything else you want to say on behalf of your opposition to the demurrer? As I say, it’s not an evidentiary hearing.
MR. MILLER: Let me think about it just for a minute. I’ll sit down if that’s okay.
THE COURT: All right. Mr. Gilmour?
MR. GILMOUR: Thank you, Your Honor. It’s undisputed that the defendants were not sworn — not appointed pursuant to the Government Code.
THE COURT: Where do you find that?
MR. GILMOUR: Where do I find?
THE COURT: Yes.
MR. GILMOUR: In the —
THE COURT: In the Complaint?
MR. GILMOUR: No, in the declaration of — submitted with our opposition, of the County, I forget her — Clerk, I guess, under penalty of perjury. The custodian of records for the County in any event, who said that no affidavit —
THE COURT: You mean the clerk, the County Clerk?
MR. GILMOUR: Yeah. Who swore that no affidavit, no appointments were ever filed. It’s undisputed that they — there was no appointments made.
THE COURT: There’s an issue. I am not convinced that’s true, because you have to recall that the County Clerk at one time was the ex official clerk of the superior court. And so filing a document with a deputy clerk was filing it
with the County Clerk. Somewhere along the line, and I’m not sure when, they took the administration of the courts away from the County Clerk and placed it with — in the State, and also with local court executives.MR. GILMOUR: I don’t quite understand, Your Honor. Are you saying that
THE COURT: What I’m saying is I am not sure but that filing the oath of office with the Court Administrator as a clerk may be in compliance or substantial compliance with 24102. I don’t have to find that.
MR. GILMOUR: Yes. That’s one of our issues here. Because if indeed, and it’s a question of fact, I don’t know whether for the sake of a demurrer —
THE COURT: Tell me about why these people aren’t de facto deputy district attorneys.
MR. GILMOUR: I’m saying they very well may be, but that’s a factual question again. It wasn’t addressed in the demurrer. I’d like to —
THE COURT: It was in the Complaint.
MR. GILMOUR: I’d like to do some discovery with regard to that question.
THE COURT: We’re at the demurrer stage.
MR. GILMOUR: I understand. So how does one just demurrer by a mere allegation that I have something that I have to proof up?
THE COURT: You demurrer to the language of the Complaint. I think, as Mr. Knox’s brief points out, that the Complaint itself basically sets up the fabulous four as deputy district attorneys de facto. Who can file a criminal
action? How do you start a criminal action?MR. GILMOUR: Are you saying that a de facto district attorney —
THE COURT: I’m asking you a question. How do you start a criminal action?
MR. GILMOUR: By filing an Information I suspect. I don’t do criminal law.
THE COURT: There’s only two ways you can do it. One is the district attorney has to file the Complaint in the Municipal Court and proceed by way of preliminary examination, or to the grand jury with a Complaint; or the
grand jury on it’s own with the help of the district attorney indicts certain people. Now, here it’s alleged in the Complaint that the fab four basically filed the Complaint against Mr. Miller and the corporation.MR. GILMOUR: I understand what they did.
THE COURT: And also, in very clever language by Mr. Miller, in effect misled the grand jury, which resulted in an indictment. Now that’s a deputy district attorney’s function, as is the filing of the Complaint.
MR. GILMOUR: Exculpatory evidence is part of his obligation as well.
THE COURT: I don’t think you know what you’re talking about.
MR. GILMOUR: Okay.
THE COURT: Because the problem is, when they do this they’re acting as deputy district attorneys.
MR. GILMOUR: They’re acting as if. Now, your question was whether or not they’re de facto, and I said that’s a question of proof. First of all —
THE COURT: You’re right. And assuming, assuming the allegations of the Complaint to be true, it would appear from the Complaint itself that they are de facto.
MR. GILMOUR: The question then comes down to assume arguendo they are de facto.
THE COURT: Does the immunity apply to them?
MR. GILMOUR: Exactly.
THE COURT: Why doesn’t it?
MR. GILMOUR: And the law I cited, and the only law I could find in three days, that came from old now Mr. Witkin, says no, they are not immune. The jury immunity; de facto, zip. That’s the law.
THE COURT: All right.
MR. GILMOUR: Mr. Knox has not cited any authority to the contrary. I would — I’m not a betting man, but I’d bet that the Court would not be able to find any law to the contrary in any of the 50 states. De facto, no immunity. No
immunity, no demurrer.THE COURT: Okay. Thank you. Mr. Knox?
MR. KNOX: Your Honor, I just don’t see how that can be the law. The fab four, as you call them, take the oath, perform prosecutorial functions. They are left in this proceeding apparently by — I don’t know what happened to that appointment. I agree with the Court that the oath itself is a substantial compliance with the requirement that there be an appointment, but surely they don’t lose their prosecutorial immunity that would otherwise attach if they
were on the payroll of the County.MR. GILMOUR: Your Honor, there is — this is a very — the latest law is about 1926 that I can find on the question of de facto status.
THE COURT: Well, there’s a 1914 case.
MR. GILMOUR: Not having to do with immunity. Nothing.
THE COURT: That’s the one in which where the deputy sheriff was commissioned by the sheriff and they didn’t file the paper.
MR. GILMOUR: That’s correct, but it has nothing to do with that deputy sheriff’s immunity; nothing. That’s where I got confused, too. It took me a long time to get through this stuff. I ended up reading a 1926 edition of
Southern California Law Review and the cases cited therein. It’s that bad. But interestingly, Mr. Witkins relied upon it. I would hope this Court would as well.MR. KNOX: The 1940 case was Cradlebough and that officer probably deserved what he got, which was to be prosecuted as an officer for excessive force. Certainly if the burden’s attached to a de facto officer the privileges and immunities must as well.
MR. GILMOUR: Your Honor, that case had to do with an officer being charged as an officer for committing a crime in violation of a statute governing officers. It had nothing to do with immunity.
THE COURT: All right. You thought of something else you want to say, Mr. Miller?
MR. MILLER: Yes, sir.
THE COURT: Go ahead.
MR. MILLER: I’d like to add to the duties of a district attorney to a grand jury. And as a person of the public I thought it was interesting when I had a chance today to read some of Mr. Knox’s assertions that this is all in the
public interest. It’s clear in the California Penal Code, 939.7, that is it also incumbent upon a district attorney to reveal exculpatory evidence and to, in grand jury proceedings, to exactly explicitly point that out and to protect that innocence — innocent people will not be damaged through the type of hearings and presentations that I, along with the Original Sixteen to One Mine, and another person, went through in this very courtroom. It was not — these men and women, they are called Team Filter in the grand jury hearings. It is clear that they have stepped well beyond the concept of immunity, at least in the eyes of the public. For Mr. Knox to suggest that allowing the State of California to grant the specific — grant an absolute immunity in this case
is actually against the People of the State of California’s best interest. That’s what would come out in a factual presentation should we be able to proceed in this hearing.THE COURT: Anything else?
MR. MILLER: Yes, sir, one more thing. The – I hold the judicial system in the highest regard of the three branches of our government. I’m the only person in this room who went through what happened in Sierra County with Team Filter and CDAA. I’m not a lawyer, I was in pro per throughout this hearing because it was very, very complex. It was impossible to reach labor law, mining law, administrative law, civil law. I could find no attorney that knew all of these branches of the law. Judge Young, I think on special notice, and the fact that the motion to set aside, this was Mr. Knox’s clients, were thrown out of court.
Professional attorneys who are now private attorneys employed by the CDAA on their payroll, now have extended this immunity and they get thrown out by a person in pro per on a motion to set aside. I think — and we weren’t the first case.THE COURT: I don’t know why the Information was set aside. I know what your argument was in the motion, but Judge Young merely said it was granted, he didn’t say why. He’s an old time judge, he didn’t want to give a reason and
be wrong probably, so I don’t know why.MR. MILLER: Your Honor, I plead with you that this case is in the public’s best interest to know go forward.
THE COURT: May be in the best interest to go forward, the problem is whether or not the defendants, the four defendants, the fab four, have immunity under 82126.
MR. MILLER: Everything I’ve read says employee, employee, employee.
THE COURT: They were employees.
MR. MILLER: No, sir, they were not.
THE COURT: Let’s go back; okay?
MR. MILLER: They weren’t employees of Sierra County.
THE COURT: No, no. The only person who can — who can appoint deputy district attorneys is the District Attorney himself or herself. Now, they evidently were
appointed by her, or told to be appointed by her. They were given the oath by Ms. Hamilton. She holds the documents. Now, the district attorney didn’t file the paper with the County Clerk. Whether that’s required or not I don’t know.
There’s no cases on this except the Cradlebough case.MR. GILMOUR: There’s a statute.
THE COURT: There is a statute, yes, but what’s it mean?
MR. GILMOUR: It means –
THE COURT: You have to remember they changed the court system.
MR. GILMOUR: That statute was from 1907, and it is current today.
THE COURT: I know it’s still there.
MR. GILMOUR: The language is unequivocal.
THE COURT: But they have changed the structure of the Superior Court.
MR. GILMOUR: I understand that. But it says until an appointment. You cannot –
THE COURT: I’ve heard enough from you, you can sit down.MR. GILMOUR: I’m sorry.
MR. MILLER: Can I say one more thing and then you can tell me to sit down?
MR. KNOX: I’ll tell him to sit down, Your Honor.
(Laughter).
MR. MILLER: I would love to talk to you because this is a very serious matter. The fact that you just said, Your Honor, that the only person that can appoint someone to come into our county. This is my county. This is where I live. I work here, I run a company. Been here 30 years. And the district attorney, the fact is that she didn’t appoint, she didn’t authorize directly Jan Hamilton to
appoint these people, and I know that for a fact. And when do we get a chance to say this? Sherry the clerk is sitting over there. The current district attorney is not here. Jan Hamilton will say that what she said in statement four is not necessarily absolutely correct. And if that’s in your own
words, if that’s the only way they can appoint, they were not appointed that way. They blew in here, came over and said this is and that is.THE COURT: They were appointed over a period of about six or eight months one at a time.
MR. MILLER: I’m fully aware of the time dates on there when they were appointed, and the one in particular.
THE COURT: You just tried to tell me they were appointed at the same —
MR. MILLER: No, sir, I didn’t. No, no, no. Mr. Hedum was in 2001, Mr. Patchett was October 28th, 2002, the day of the grand jury. He came in from Los Angeles, Sharon O’Sullivan was not even in the courthouse, and said “Appoint
me”. Jan did her job. She got a call, she didn’t know. We’re kind of a little relaxed here, too, which is maybe to our detriment, but there are laws. And not only did they break the law of appointment, they broke every other law you
can imagine in presenting and prosecuting this case to the grand jury. People up here are outraged.THE COURT: That’s your allegation, I don’t know.
MR. MILLER: When do we get a chance to prove it? I don’t think that the Constitution, in what I cited to you about the special privileges for different groups, there’s no special groups for absolute immunity for anybody in the
United States. Where do we say that in the Constitution, either the State or the Federal?THE COURT: It’s not in the Constitution.
MR. MILLER: Where did we ever say that in –
THE COURT: The statute grants immunity to public employees performing in the scope of their employment.
MR. MILLER: Exactly. No law is going to breach the values of the Constitution. They don’t presume to override the Constitution. And both California and state are in there.
THE COURT: You are out of order on that.
MR. MILLER: I’ll stand corrected.
THE COURT: All right.
MR. MILLER: But this is not a frivolous issue.
THE COURT: I know it’s not a frivolous issue.
MR. MILLER: And the concept of people coming in and evaluating this and doing this. I think that if this is not allowed to go forward it definitely is not what anyone imagined the need for having prosecutorial immunity absolute.
I’m not here to argue that either. We’re here to discuss the specifics of this case.THE COURT: There’s no doubt there’s prosecutorial immunity providing you are performing prosecutorial work. The question, as Mr. Gilmour says, is does it apply to these people, the fab four.
MR. GILMOUR: That’s correct.
MR. MILLER: Yeah, I have a little different opinion than Mr. Gilmour. I know that they did not — that they did not carry out the laws of the land when they
presented this to the grand jury.THE COURT: It isn’t the cleanest case presented, that’s the problem.
MR. MILLER: By whom?
THE COURT: By both sides. There aren’t enough facts involved in it. The demurrer is probably good as to the third count, because you haven’t pled anything for interference with the business advantage.
MR. MILLER: If that’s the case, having never even had a copy of Mr. Knox’s client’s report –
THE COURT: That’s your complaint.
MR. MILLER: Okay. Whatever he is claiming, I would certainly, if the worst case scenario is right, like a right to amend our Complaint. I just think —
THE COURT: Is the matter submitted?
MR. KNOX: Yes, Your Honor.
THE COURT: All right. I’m going to deny the demurrer on the — as to the four defendants on the three causes of action on the grounds of immunity because I don’t think the record is full enough for that. I’ll grant the demurrer as to the third count with leave to amend. You can file an amended Complaint.
MR. GILMOUR: Thank you, Your Honor.
THE COURT: Which you would have to set forth the requisite allegations for interference with business advantage.
MR. GILMOUR: Thank you very much, Your Honor.
THE COURT: I think also that you’re going — you should clean up your Complaint because if there are differences between the corporation and the individual then I think your damages are going to be different. I think you have to allege that.
MR. GILMOUR: Yes, Your Honor.
THE COURT: I don’t think there is any difference between the way you pled it.
MR. GILMOUR: It was a last moment. I live in Alameda County.
THE COURT: I think what’s going to — what will eventually happen is this thing will come back on a judgment on the pleadings after more information.
MR. GILMOUR: Fine. At least as long as we have the opportunity to do that. Thank you very much, Your Honor.
MR. MILLER: Thank you.
MR. KNOX: Thank you, Your Honor.
THE COURT: Will you prepare the order, Mr. Knox?
MR. KNOX: Yes, Your Honor. How long to amend? He is present in court so 20 days, is that what he gets to amend — to file the amended Complaint, 20 days from today?
THE COURT: From today’s date. You want longer?
MR. MILLER: I have a shareholders meeting June 26th, and I have something in U.S. Court of Appeals on June 11th. And I apologize for this but we run — I run a public company but I’m really small.
THE COURT: By July 15th?
MR. MILLER: Yes, sir, July 15th would be excellent for me.
MR. GILMOUR: Thank you very much, Your Honor.
CERTIFICATE OF CERTIFIED SHORTHAND REPORTER
I, JUDY BISHOP, hereby certify that I am a Certified Shorthand Reporter, and that I recorded verbatim in shorthand writing the following proceedings completely and correctly according to the best of my ability:
COURT: Superior Court, Dept. 1
JUDGE: Hon. Richard Haugner
ACTION: Miller vs. Filter, et. al.
DATE: May 28, 2004
I further certify that my said shorthand writing has been transcribed into typewriting, and that the preceding pages constitute an accurate and complete transcript of my shorthand writing for the date specified.
I further certify that I have complied with CCP 237(a)(2) in that all personal juror identifying information has been redacted if applicable.Dated: June 5, 2004
JUDY BISHOP
Certified Court Reporter
CSR No. 2261#7 Miller memorandum to Demurrer
INTRODUCTION
Plaintiff Michael M. Miller was never served any papers filed by defendants. His ability to respond to the motion has been violated by the omission of defendants to serve the first and second motion before the court. Miller waives his right to service if the court rules against the motions. If the court believes it lacks sufficient documentation to strike down defendants’ motions, Miller asks the court to order defendant to serve Miller and allow him time to respond.
BACKGROUND of Defendants
The official California District Attorneys Association web site has a section entitled, “What is a prosecutor. Section V, Becoming a prosecutor says, “Individuals seeking a position as a prosecutor must know the law.” Section IV provides the “Ethical Duties of Prosecutors”. Excerpts presented orally.
Defendants entered into a contract with the California Department of Industrial Relations in the spring of 2001. Specific terms of the agreement pertinent to the motion before the court today are contained in the following pages of the contract.
“The California District Attorneys Association will employ these individuals.” Page One, section 1.
“In addition, elected District Attorneys will, as appropriate, deputize these prosecutors. The California district Attorneys Association will employ the Circuit Prosecutors and Investigator.” Page One, section 2.
“The California District Attorneys Association (hereinafter the Association or “CDAA”) is a private, non-profit association.” Page Two, section 4. (b)
“The Circuit Prosecutors and Investigator will be employed by the CDAA” Page Three section c.
DUTIES of Defendants
The individuals are members of the California State Bar and are required to follow its requirements. See Motion to Set Aside. Exhibit B. CDAA web site includes a description of duties entitled, “The Ethical Duties of Prosecutors”. It is not a stretch to believe that defendants knew the duties and requirements of a prosecutor. Also, the Sierra County Grand Jury transcript contains many statements by defendants that they were aware of the obligations they assumed as private prosecutors. Team leader and defendant Filter instructed the Sierra County Grand Jury that, “You must accept and follow the law as it is stated regardless of whether you agree with the law.” Page 37 lines 26-27. His omissions to the Grand Jury are flagrant transgressions of the law.The individuals took an obligation to “bear true faith and allegiance to the Constitution of the United States and the Constitution of California” They ignored the constitution and subsequent statutes and regulations as stated in the Motion to Set Aside and Exhibit A
CONCLUSION
Breaking the laws and claiming it is on behalf of the publics’ interest and seeking absolute protection under the doctrine of immunity is a specious argument in light of the circumstances involved in the murder prosecutions of Michael M Miller by the defendants. For these reasons and the testimony entered today, Michael M. Miller prays that defendants’ demurrer be overruled.Sincerely yours,
May 28, 2004 Michael M. Miller
# 6 Sixteen to One Response
to CDAA Response to Memorandum of pointsIntroduction
Defendants demurrer was based on the unequivocal and false assertion that the individual defendants are deputy district attorneys of Sierra County.
Now, in their Response, they admit that that assertion is untrue, is false, that they are in fact not deputy district attorneys of this County.
But, they claim, although they have falsely presented themselves to this Court and to the people of this County as being deputy district attorneys, and because the Court and the citizens of this County came to believe this fraud, they are nonetheless entitled to immunity from liability for injuries they caused to citizens and a major business of this County.
It’s a novel argument.
Deputy District Attorneys
The individual defendants’ status as deputy district attorneys was not only repeatedly claimed as fact in their Demurrer (five times in seven pages), the claim was also sworn to under oath by one of the defendants in his Declaration in support of the Demurrer. (Declaration of Gale Filter.)
Had these assertions been true, defendants’ demurrer might well have had some merit. But they were not true. They were false, they were sworn to, and they were in the Demurrer falsely presented to this Court, as true.
The falsity of the defendants’ claims was revealed by plaintiffs’ in their Opposition to the Demurrer filed on May 10.
On May 21, less than one week from the calendared hearing on their Demurrer, defendants served their “Response.”
In that Response defendants have presented an entirely novel characterization of their status in this County. They almost, but not quite, admit that in their Demurrer they had misrepresented both fact and applicable law, but they request that the Court now take yet more “judicial notice” of, declare to be true, matters which are most certainly “reasonably subject to dispute” and hardly “capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” Evidence Code Section 452(h). Although the defendants repeat in their Response their untrue claim that they were appointed (p. 2, lines 22-23), it is not true and they admit it is not true.
So, what have they done? In their Response they assert now that they are “de facto officers.”
That may well be true. But it may well not be. Defendants attempt to have the assertion of de facto status established as fact, a question of complex fact not to be determined by a demurrer. For example, whether the defendants’ “acts in prosecuting plaintiffs involved the interest of the public” (Response, p. 4, line 1) is undoubtedly a factual question far beyond the allegations of the complaint, and not capable of being resolved by judicial notice at a demurrer.
But the real issue here is whether the defendants are, by virtue of purported de facto status, immune from liability for the injuries they are claimed in the Complaint to have caused.
Defendants claim that as de facto officers they are entitled to Government Code Section 821.6 immunity. They offer no authority for such a proposition. There is none.
Bernard Witkin in addressing de facto officers throughout his various treatises repeatedly refers to the article on De Facto Public Officers in 9 So.Cal.L.Rev. 189 as an “exhaustive discussion.” See, e.g., 2 Witkin Procedure, “Courts,” Section 44, p. 59.
While the acts of an officer de facto are valid insofar as the rights of the public are involved, or the rights of third persons having an interest in them are concerned, yet if a party defends or sues in his own right as a public officer for his protection or benefit, it is not sufficient that he be merely an officer de facto; he must be an officer de jure. That is, when the incumbent is sued for the commission of an act which is criminally or civilly enforceable against the “officer” as such, a defense of de facto status will not be heard, since an “officer” in in this capacity includes de facto as well as de jure officers. And when the incumbent is sued for doing an act normally excusable in a de jure officer, the de facto officer cannot put up the defense of the immunity of the office, for this defense belongs exclusively to the de jure officer. (Emphasis added.)
9 So.Cal.L.Rev., at 220, and cases cited.Not surprisingly, defendants have misrepresented the nature and applicability of the ancient de facto doctrine. Its purpose is to protect the public and third parties from loss, and not the people inappropriately exercising the powers of an office which they have had no lawful business occupying from liability for their wrongdoing.
The two cases cited by defendants with regard to de facto status, Oakland Paving Co. v. Donovan (1912) 19 Cal.App. 488 and Nofire v. United States (1897) 164 U.S. 657, have nothing to do with the question of the immunity of de facto officers.
The Complaint
The defendants argue that their status as deputy district attorneys is implied in the Complaint. But that is not true.
In Paragraph 7, it is stated that “…the defendants, and each of them, knowingly and willfully conspired and agreed among themselves to without probable cause or other reasonable bases have felony criminal charges brought…,” hardly the actions of legitimate public servants.
In Paragraph 8 it is stated that “pursuant to and in furtherance of said conspiracy on June 132, 2002, defendants cause a complaint to be filed against plaintiff MICHAEL M. MILLER and one Jonathan Farrell…” hardly the actions of legitimate public servants.
In paragraph 9 it is stated that “…further pursuant to an in furtherance of said conspiracy, defendants, and each of them, wrongfully misled the Sierra County Grand Jury…,” hardly the actions of legitimate public servants.
Nowhere in the Complaint is there an allegation much less an inference that the defendants were legitimate, lawfully entitled, deputy district attorneys of this County.
Judicial Notice
Defendants request the Court to take judicial notice of certain matters, that is to assume certain matters to be indisputably true. Evidence Code section 452(h) provides that matters which “…are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy may be permitted to be judicially noticed.
In her declaration filed with the defendants’ Response, Jan Hamilton states that she was told by the District Attorney that the District Attorney had appointed the defendants. It is submitted that had the District Attorney in fact appointed the defendants she would herself have told this Court, that she would have sworn to such an event. Ms. Hamilton’s hearsay upon hearsay statement is odd indeed in that it amounts to a statement that the District Attorney of this County had repeatedly violated the law. It is a statement which at best is “disputable” and not “capable of immediate and accurate determination” as true.
Conclusion
For all of the foregoing reasons, plaintiffs pray that defendants’ demurrer be overruled.
May 27, 2004
Respectfully submitted,
GEORGE R. GILMOUR#5 CDAA Response to plaintiff’s Memorandum of Points and Authorities in Opposition to Demurrer
May 28, 2004Defendants Gale Filter, Denise Mejlszenkier, Anthony Patchett, Kyle Hedum, and California District Attorney Association submit this response to Plaintiff’s Memorandum of Points and Authorities in Opposition to Demurrer.
Plaintiffs argue that no written “appointments” have been filed by the Sierra County Clerk in connection with the service of Defendants as Sierra County Deputy District Attorneys. That is true.
Plaintiffs argue that because no “appointments” were filed, Defendants did not in fact serve as Deputy District Attorneys and do not enjoy the prosecutorial immunity conferred by Government Code section 821.6. That is not true.
The Court Executive Officer of Sierra County, Jan Hamilton, administered an oath to each of the Defendants. The oaths, designating each Defendant respectively as a Deputy District Attorney, are evidenced by writings attached to Defendants’ moving papers. Defendants performed the duties of Deputy District Attorneys as the allegations in Plaintiff’s complaint show. It is in fact connection with their performance of those duties that Defendants have been named as parties to this lawsuit.
For the reasons stated below, Plaintiffs arguments are simply unavailing.
ARGUMENT
1. There exists Judicially noticeable evidence that Defendants were Sierra County Deputy District Attorneys.
Plaintiffs argue that, under Evidence Code section 452(d), the Court can only take judicial notice of the existence of the Oaths in the court file, but cannot take judicial notice of the truth of the facts asserted therein. However, Defendants have also requested judicial notice of the Oaths and administration of same by the Court’s Executive Officer pursuant to Evidence Code section 452(h).
Under section 452(h), the Court may take judicial notice of facts and propositions that are not reasonably subject to dispute and capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. That Defendants were sworn as Sierra County District Attorneys of Sierra County is not reasonably subject to dispute. Further, that defendants were appointed as Deputies is also not reasonably subject to dispute. These facts are subject to verification by Sierra County Court’s own Executive Officer, as evidenced by the accompanying affidavit. According to Court Executive Officer Jan Hamilton, she administered Oaths of Office to Defendants after then District Attorney Sharon O’Sullivan communicated the fact of Defendants’ appointment to CEO Hamilton’s office. (Affidavit of Jan Hamilton, Pg 2, lines 1-3). District Attorney O’Sullivan has the power to appoint Deputies pursuant to Government Code § 24101.
Defendants request that the Court take judicial notice of the information contained in Court Executive Officer Hamilton’s affidavit under Evidence Code section 452(h) as information capable of immediate and accurate determination by resort to sources of reasonable indisputable accuracy.
2. Defendant Gale Filter’s Declaration is offered to authenticate the documents offered for judicial notice.
Plaintiffs argue that the Declaration of Filter has been inappropriately presented to the Court as it is offered to refute the factual allegations of the complaint. However, Filter’s Declaration is not offered to refute the factual allegations made in the complaint, but rather to authenticate the documents being offered for judicial notice by the Court.
3. Defendants were de facto Deputy District Attorneys to whom statutory immunity applies, notwithstanding the absence of filed written appointments.
Plaintiffs argue that no evidence exists that the Defendants have ever been appointed as Deputy District Attorneys of Sierra County, because no written appointments were found in the files of the county clerk’s office, as required by Government Code section 24102. However, even in the absence of filed appointments, Defendants were officers de facto, to whom immunity applies.
An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as involving the interests of the public or third persons, where the duties of the officer were exercised either: (1) under color of a known and valid appointment, but where the officer had failed to conform to some precedent requirement or condition, as to take an oath or give a bond, or; (2) without a known appointment, but under such circumstances of reputation or acquiescence as were calculated to induce people without inquiry, to submit or invoke his action, supposing him to be the officer he assumed to be. Oakland Paving Co. v. Donovan (1912) 19 Cal.App. 488, 495. The same validity and the same presumptions attach to the actions of an officer de facto as to those of an officer de jure. Nofire v. United States (1897) 164 U.S. 657, 661.
a. Defendant’s acts in prosecuting Plaintiffs involved the interest of the Public
In their complaint for damages, Plaintiffs alleged the following acts by Defendants:
1.) Defendants had “felony criminal charges brought against plaintiffs in the county of Sierra, State of California.” (Complaint for Damages, Page 3, Paragraph 7).
2.) Defendants filled a criminal complaint against Plaintiffs in Sierra County charging Plaintiffs with violations of Penal Code section 192(b) (involuntary manslaughter) and Labor Code section 6425(a) (willful violation of occupational health or safety standard resulting in death). (Complaint for damages, Pages 3-4, Paragraph 8).
3.) Defendants “misled the Sierra County Grand jury by inter alia concealing exculpatory evidence, to returned a two-count felony indictment against plaintiffs… charging each of them with violations of Penal Code section 192(b) and Labor Code section 6425(a). (Complaint for Damages, Page 4, Paragraph 9).
4.) Defendants “initiate[ed] the prosecution of plaintiffs…” (Complaint for Damages, Pages 4-5, Paragraph 11).
These acts, undertaken in furtherance of a criminal prosecution against the Plaintiffs, served a vital public interest. As noted by the California Supreme Court, the efficient functioning of our system of law enforcement is dependent largely upon the investigation of crime and the accusation of offenders by trained officers. White v. Towers, (1951) 235 P.2d 209, 211. The Court warned that, “a breakdown of this system at the investigative or accusatory level would wreak untold harm.” Id.
b. Defendants exercised their duties under color of a known and valid appointment, but where the officer had failed to conform to some precedent requirement or condition.
Defendants were de facto officers under both standards discussed above. First, as evidenced by the accompanying affidavit from Court Executive Officer Jan Hamilton, each of the defendants performed their duties under color of a known and valid appointment to the office of Deputy District Attorney, even though they had no written appointment filed with the county clerk. According to the Court Executive Officer Hamilton, she administered Oaths of Office to Defendants after then District Attorney Sharon O’Sullivan Communicated the fact of Defendants’ appointment to CEO Hamilton’s office. (Affidavit of Jan Hamilton, Pg. 2, lines 1-3). Court Executive Officer Hamilton also stated that District Attorney O’Sullivan did not file a written affidavit of appointment with the county clerk’s office for any of the twelve Deputies that District Attorney O’Sullivan appointed. (Affidavit of Jan Hamilton, Pg. 2, lines 3-7).
c. Alternatively, Defendants exercised their authority without a known appointment, but under circumstances that would induce others to conclude that they were Deputy District Attorneys.
Defendants can also be found to be de facto officers applying the second standard, to wit, performing their duties without a known appointment, but under such circumstances of reputation or acquiescence as were calculated to induce people without inquiry, to submit or invoke his action, supposing him to be the officer he assumed to be. Here, Defendants each took the Oath of Office for the office of Deputy District Attorney. (Defendants’ Request that Court Take Judicial Notice, Exhibit “1”, Affidavit of Jan Hamilton, Pg. 2, lines 21-26). Further, Defendants made criminal charging decisions, filed criminal complaints and presented evidence to fact finders such as the Sierra County Grand Jury. (Complaint for Damages, Paragraphs 7-9, 11). In other words, Defendants acted in such a way as would induce others to submit to their authority as Deputy District Attorneys.
The acts undertaken by Defendants served the vital public interest of upholding the law. Further, Defendants executed their duties under either under color of a known appointment, or without appointment, but under such circumstances that others would conclude that they were Deputy District Attorneys of Sierra County. Hence, Defendants were officers de facto and they are entitled to the same immunity afforded all prosecutors.
4.) Defendants status as Deputy District Attorneys can be inferred from Plaintiff’s own Pleadings.
Even if the court refused to take judicial notice of any document or fact in this case, Defendants status as Deputy District Attorneys can be inferred from the Plaintiffs’ own pleadings.
A judge deciding whether to sustain or overrule a demurer is guided by a number of general principals. Material facts alleged in a pleading are treated as true for the purpose of ruling on the demurrer. Gruenberg v. Aetna Ins. Co. (1973) 9 C3d 566, 572. The judge also takes as true facts that may be inferred from those expressly alleged. Harvey v. City of Holtville (1969) 271 CA2d 816.
In their complaint for damages, Plaintiffs allege that Defendants made criminal charging decisions, filed criminal complaints and presented evidence to fact finders such as the Sierra County Grand Jury. (Complaint for Damages, Paragraphs 7-9, 11). These are all functions of the Sierra County District Attorney and his or her deputies.
Further, Plaintiffs allege that Defendants took the actions complained of between May 2002 and February 2003, when the case was dismissed. (Complaint for Damages, Pg. 3, Line 14 through Pg. 4, Line 25.) Certainly, the Defendants could not have, over a period of nine months, taken a criminal case from its initial stages to fruition in Sierra County Superior Court unless they were Deputy District Attorneys.
Hence, there lies an extremely strong inference from the plaintiffs’ pleadings alone that Filter, Mejlszenkier, Patchett and Hedum were Sierra County Deputy District Attorneys.
Conclusion
The Oath of Office and the fact of Defendants’ having been sworn as Deputy District Attorneys are judicially noticeable under the evidence code. Further, Defendants’ status as Deputy District Attorneys can be easily inferred from the Plaintiff’s own Complaint for Damages. Defendants’ reiterate their request that their demurrer be sustained as to Plaintiffs’. First, Second and Third Causes of Action because Filter, Mejlszenkier, Patchett and Hedum enjoyed absolute immunity as prosecutors acting within their official capacity and because this immunity attaches to CDAA through the doctrine of respondeat superior.
Defendants also reiterate their request that the demurrer be sustained as to Plaintiff’s Third Cause of Action for failure to state facts sufficient to constitute a cause of action. Plaintiffs have pleaded none of the elements necessary to sustain a cause of action for interference with prospective business advantage.#4 Default
Filed May 10, 2004 Michael Miller enter default of defendant for non service#3 Original Sixteen to One Response to Demurer
I. INTRODUCTION
The Court may of course take judicial notice of certain matters. The issue here is what those matters are permissibly to be. Defendants ask the Court to take judicial notice of matters not permitted to be so or which are in fact patently false.
This lawsuit is, stripped of legal argot, about the defendants having allegedly engaged in unlawfully exploiting, abusing, making a mockery of the Office of the District Attorney, the judicial process, and causing serious damage to, among others, the plaintiffs.
In their arrogance, by this demurrer the defendants are attempting to do the same yet again.
II. THERE EXISTS NO JUDIALLY NOTICEABLE EVIDENCE
OF DEFENDANTS EVER HAVING LAWFULLY OCCUPIED THE OFFICE OF OR FUNCTIONED AS DEPUTY DISTRICT ATTORNEYS OF SIERRA COUNTY.The defendants cite Dawson v. Martin (1957) 150 Cal.App.2 379 for the proposition that the defense of immunity provided by Gov. Code section 821.6 need not be pleaded as an affirmative defense by a government-employed prosecutor. That is true. But, as discussed below, that immunity is not available to the defendants, and that statute has no applicability to them.
1. Defendants’ Purported “Oaths For the Office of Deputy District Attorney” Do Not Constitute Cognizable or Judicially Noticeable Evidence of Defendants’ Having Ever Lawfully Occupied Such Offices.
Defendants request that the Court take judicial notice of documents filed with their pleadings each bearing the title “OATH,” and identified as being “For the Office of DEPUTY DISTRICT ATTORNEY, SIERRA COUNTY.” The affiant and signatory of each document is one of the defendants herein, and each document bears the signature and identity of the Sierra County Court Executive Officer, Jan Hamilton.
As will be discussed further infra, however. these “Oaths” are not “appointments” to any office whatsoever. Obviously, anyone could take an “Oath” to do and be anything, including a deputy district attorney or a space explorer. So what? Without a lawful appointment there is simply no position obtained. Nothing is stated, no language is contained in these “Oaths pertaining to the nature and scope of the duties and obligations, of either the affiants or the County, vis-a-vis the “Office of Deputy District Attorney.” What is the meaning, the significance of these documents? What powers and what duties were acquired and imposed? What was the agreement? The documents reveal no such thing. The defendants in referring to these “Oaths” appear to be suggesting that they were thereby accorded unfettered prosecutorial powers within this entire County. But no such thing is mentioned in them. The defendants request that the Court interpret the documents and conclude that they constitute an agreement between the County and them which accords them awesome powers, including the power to place people in jail.
The controlling law has been long and well established:A trial court may properly take judicial notice of the records of any court of record of any state of the United States. (Evid.Code, section 452, subd. (d)); Flores v. Arroyo, 56 Cal.2d 492, 496-497 [15 Cal.Rptr. 87, 364 P.2d 263].) But, as is stated in Jefferson, California Evidence Benchbook (1972) Judicial Notice, section 47.3, at page 840: “Caveat: Limitations on judicial notice of court records. What is meant by taking judicial notice of court records? There exists a mistaken notion that this means taking judicial notice of the existence of facts asserted in every document of a court file, including pleadings and affidavits. However, a court cannot take judicial note of hearsay allegations as being true, just because they are part of a court record or file. A court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments.”
Day v. Sharp (1975) 50 Cal.App.3d 904, 914, 123 Cal.Rptr. 918, emphasis added.
These documents, these “Oaths,” are not orders, findings of fact, conclusions of law, judgments, or any other evidence of a judicial factual determination. This Court may take judicial notice of the documents’ existence under Evidence Code section 452, but may not conclude that the rather strange language they contain is in fact true.
Defendants claim that they “were sworn as Deputy District Attorneys of Sierra County…by Sierra County Court Executive Officer Jan Hamilton….” (See, Defendants’ Request That Court Take Judicial Notice of Defendants’ Status as Deputy District Attorneys and That Government Code section 821.5 Provides Immunity From Suit to Prosecutors, p. 1, lines 27-27, emphasis added; Declaration of Gale Filter in Support of Defendants’ Demurrer to Complaint, p. 1, lines 23-26.) Nothing in the “Oaths” suggests that the Court’s Executive Officer Jan Hamilton conferred the rights, privileges, and obligations of the Office of Deputy District Attorney on any of the defendants, or had any right or power to do so. Defendants’ claim, albeit implied, that Ms. Hamilton had such authority is simply unfounded, is odd. There is simply nothing in the documents to suggest in any fashion that the defendants were appointed deputy district attorneys of Sierra County, by Ms. Hamilton or anyone else.Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. (See Middlebrook-Anderson Co. v. Southwest Sav. & Loan Assn. (1971) 18 Cal.App.3d 1023, 1038, [96 Cal.Rptr. 338].) On a demurrer a court’s function is limited to testing the legal sufficiency of the complaint. (Marina Tenants Assn. v. Deauville Marina Development Co. (1986), 181 Cal.App.3d 122, 127 [226 Cal.Rptr. 321].) “A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.” Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879 [138 Cal.Rptr. 426].) The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable. (See Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 605, [176 Cal.Rrtr. 824].
Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374,228 Cal.Rptr. 878.
2. Defendant Gale Filter’s Declaration Offered to Controvert the Factual Allegations of the Complaint Has Been Inappropriately Presented in Support of Defendants’ Demurrer.
One of the defendants. Gale Filter, has offered his Declaration in support of the demurrer. He swears that the defendants became actual deputy district attorneys in Sierra County. But, again, there is nothing in Filter’s Declaration to suggest that the Defendants were lawfully appointed, pursuant to law, to the office of deputy district attorney.
The same fundamental principles of law governing judicial notice apply to this Declaration. There is nothing about Gale Filter entitling his pronouncements to judicial notice or to be deemed beyond reasonable question by this Court. There is nothing about his pronouncements which permit a demurrer to be transmuted into an adversary proceeding because Filter has under oath claimed something to be true. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 605, 176 Cal.Rptr. 824.3. There Exists No Evidence of the Defendants Ever Having Been Appointed to Serve as Deputy District Attorneys in Sierra County.
Government Code sections 24101 and 24102 provide that a county or district officer may appoint deputies to assist in the discharge of his or her office. However, an appointee shall not act as such a deputy until, inter alia, “a written appointment by the deputy’s principal is filed with the county clerk.” “Shall” and “until” plainly mean what they mean.
Not surprisingly, no such written appointments of the defendants were ever filed with the Sierra County Clerk. See Declaration of Mary Jungi, Sierra County Clerk/Recorder and custodian of the Counties official records, filed herewith. The Court may take judicial notice of the contents of this County’s Official Records, as reflected in Ms. Jungie’s Declaration, pursuant to Evidence Code section 452(c)
Conclusion
The Defendants’ demurrer, regrettably, is a legal and factual sham. It should be dealt with accordingly. Defendants are no strangers to misrepresenting fact and law to this Court.
Appropriate sanctions should be imposed.Dated: May ______, 2004
Respectfully submitted,
__________________________
GEORGE R. GILMOUR
Attorney for Plaintiff
SIXTEEN-TO-ONE MINE, INC.
________________________
MICHAEL MILLER
Plaintiff in Propria Persona#2 CDAA Demurrer
CDAA Motion Demurrer
Superior Court of the State of California
County of Sierra
May 28, 2004
Case No. 6293Memorandum of Points and Authorities in support of demurrer of Gale Filter, Denise Mejlszenkier, Anthony Patchett, Kyle Hedum and California District Attorneys Association to Complaint of Michael M. Miller and Original Sixteen to One Mine, Inc.
Introduction
Defendants Gale Filter (“Filter”), Denise Mejszenkier (“Mejlszenkier”), Anthony Patchett (“Patchett”), Kyle Hedum “(Hedum”), and California District Attorney Association (“CDAA”) each demurrer individually, and not jointly with any other party, to the Complaint of Michael M. Miller (“Miller”) and Original Sixteen-to-One Miner Inc. (“Sixteen-to-One”). Filter, Mejszenkier, Patchett and Hedum are and were Deputy District Attorney of Sierra County and entitled to immunity from suit for malicious prosecution and related causes of action pursuant to California government Code § 821.6. That immunity attaches to CDAA by virtue of the doctrine of respondent superior. Also, plaintiff’s Third Cause of Action does not state facts sufficient to constitute a cause of action for interference with prospective business advantage.
Background
On February 13, 2004, Plaintiffs filed a complaint against Defendants, alleging malicious prosecution, intentional infliction of emotional distress and interference with prospective business advantage.
Plaintiffs allege each cause of action on the same underlying course of conduct. Specifically, Plaintiffs allege that Defendants conspired to have felony criminal charges brought against plaintiffs with malice and in the absence of probable cause. Plaintiffs further claim that plaintiffs filed a criminal complaint against Defendants and concealed evidence from the Sierra County Grand Jury resulting in the return of a two-count felony indictment against plaintiffs.
Defendants are Deputy District Attorneys of Sierra County. They are, therefore, entitled to absolute immunity against suit for actions taken within the scope of their employment. California Government Code § 821.6; Falls v. Superior Court (1996) 42 Cal. App. 4th 1031, 1042-1043. Standard
When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, of from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading. Cal. CCP § 430.30(a).
Judicial notice shall be taken of the decisional, constitutional and public statutory law of [California] and of the United states. Cal. Evid. Code § 451(a).
Judicial notice may be taken of the records of any court of this state, to the extent that they are not embraced within Section 451. Cal. Evid. Code § 452(d)(1).
Judicial notice may be taken of facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy, to the extent that they are not embraced within Section 451. Cal. Evid. Code § 452(h).
The trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and: (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter. Cal. Evid. Code § 453.
Argument
1. Defendants have absolute immunity from claims for malicious prosecution and related causes of action.
California statutory law provides immunity for prosecutors, stating: “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” Cal. Gov. Code 821.6. The defense of immunity need not be pleaded by an answer, but may be taken advantage of by demurrer. Dawson v. Martin (1957) 150 Cal.App.2d 379, 381-382.
When a quasi-judicial officer, such as a prosecutor, acts within his official capacity he, like a judicial officer, enjoys absolute immunity. This is true even if the acts committed by the prosecutor are alleged to have been done maliciously and corruptly. Falls v superior Court (1996) 42 Cal. App.4th 1031, 1042-1043. An absolute immunity defeats a suit at the outset, so long as the official’s actions were within the scope of the immunity. Id. At 1037. A prosecutor acts within his official capacity, for purposes of absolute immunity, when his conduct is an integral part of the judicial process or intimately associated with judicial phase of criminal process. Id. At 1044.
A. Defendants were public employees
Plaintiffs’ complaint alleges that Filter, Mejlszenkier, Patchett and Hedum filed a criminal complaint against Plaintiffs in the Sierra County Superior Court and presented evidence to the Sierra County Grand Jury. Implicit then, in the Complaint, is the fact that Filter, Mejlszenkier, Patchett and Hedum were Deputy District Attorneys of Sierra County. This fact is evidenced further by the Oaths for the Office of Deputy District Attorney, attached tot eh accompanying Request of Judicial Notice, indicating that Filter, Mejlszenkier, Patchett and Hedum were sworn by the Sierra County Court Executive Officer Jan Hamilton as Sierra County Deputy District Attorneys on August 23, 2002, June 11, 2002, October 28, 2002, and November 27, 2001, respectively. Defendants request that the Court take judicial notice of the Oaths For the Office of Deputy District Attorney pursuant to California Evidence Code §§ 452(d)(1) and 452(h) as the documents comprise records of the Sierra County Court. Defendants’ status as Sierra County Deputy District Attorneys is not reasonably indisputable accuracy. Defendants further request that judicial notice be taken under California Evidence Code § 453 as each party has been given sufficient notice of the request through these pleadings and the Court has been furnished with sufficient information to take judicial notice of the matter.
B. By prosecuting Plaintiffs, Defendants acted within the scope of their employment.
A Prosecutor acts within his official capacity, for purposes of absolute immunity, then his conduct is an integral part of the judicial process or intimately associated with judicial phase of criminal process, Hall at 1044.
Plaintiffs allege each cause of action – malicious prosecution, intentional infliction of emotional distress and interference with prospective business advantage – on the following underlying course of conduct:
1. Defendants “conspired and agreed upon themselves to without probable cause or other reasonable bases have felony criminal charges brought against plaintiffs”. (Complaint for Damages, Page 3, Paragraph 7).
2. Defendants filed a criminal complaint against Plaintiffs in Sierra County (Case No.CR 00632) charging Plaintiffs with violations of Penal Code § 192(b) (involuntary manslaughter) and Labor Code § 6425(a) (willful violation of occupational health or safety standard resulting in death) “in furtherance of said conspiracy.” (Complaint for Damages, Pages 3-4, Paragraph 8)
3. Defendants misled the Sierra County Grand Jury by concealing exculpatory evidence. (Complaint for Damages, Page 4, Paragraph 9).
4. The grand jury returned a two-count felony indictment against plaintiffs, charging them with violations of Penal Code § 192(b) and Labor Code § 6425)(a). (Complaint for Damages, Page 4, Paragraph 9).
5. Defendants acted without probable cause “in initiating the prosecution of plaintiffs in that they did not honestly, reasonably, or in good faith believe plaintiffs to be guilty of the crime (six) charged…” (Complaint for Damages, Pages 4-5, Paragraph 11).
Clearly, making charging decisions, filing complaints and presenting evidence to fact finders are integral parts of the judicial process or intimately associated with the judicial phase of the criminal process. Defendants’ actions, therefore, fall within the immunity created by Evidence Code § 821.6. This is true even in the face of Plaintiffs’ claims of concealment of exculpatory evidence by the defendants, as the alleged acts fall within the scope of employment.
In Randle v. City and Country of San Francisco (1986) 186 Cal.App.3d 446, the plaintiff, whose felony conviction was reversed because of newly discovered exculpatory evidence, brought an action against a prosecutor, a police officer and a municipality based on their suppression of the exculpatory evidence in the criminal trial. In sustaining the trial court’s demurrers without leave to amend as to all causes of action, save for one against the municipality, the appellate court stated that even the alleged act of suppressing evidence, either by the prosecutor or by the police officer, was clearly within the scope of employment of the individual respondents. Id. at 457. The district attorney and the investigating officer were both necessarily involved in handling the evidence in the case, the court stated. Id. That the complaint alleged improper conduct regarding the evidence did not alter the fact that the acts alleged fall within the scope of employment, the court held. Ld.
Turning to the case at bar, the act that forms the basis of Plaintiffs’ case is the alleged suppression of evidence. Handling evidence was clearly within the scope of the employment of Filter, Mejlszenkier, Patchett and Hedum and any alleged mishandling of the evidence also fell within the scope of that employment.
Finally, plaintiffs’ allegations that defendants “conspired and agreed upon themselves to without probable cause or other reasonable bases have felony criminal charges brought against plaintiffs,” also do nothing to overcome Defendants’ immunity.
A malicious prosecution is one begun in malice without probable cause to believe the charge can be sustained, White v. Brinkman (1937) 23 Call.App.2d 307, 313. A complaint for such prosecution is properly confined to a statement of those substantive elements. Id. Averments of conspiracy contribute no substantial increment to the cause pleaded. Id. Pleading such evidentiary averments add nothing material to the statement of the case, and are to be treated as surplusage. Id.
C. CDAA is Also Immune From Prosecution
CDAA is immune from prosecution fro the same reasons defendant prosecutors are.
Under the doctrine of respondent superior, the employer’s liability is wholly derived from the liability of the employee, and the employer cannot be held vicariously liable unless the employee is found responsible. Lathrop v. Healthcare Partners Medical Group (2004) 114 Cal.App.4th 1412, 1423. Because the vicarious liability of the employer is wholly dependent upon or derivative from the liability of the employee, any substantive defense that is available to the employee inures to the benefit of the employer. Id.
Hence, the immunity that shields Filter, Mejlszenkier, Patchett and Hedum similarly shields CDAA.
2. Plaintiffs’ Third Cause of Action Fails to Allege the Elements of Interference with a Prospective Business
The Third Cause of does not state facts sufficient to constitute a cause of action for interference with prospective business advantage. The elements of the tort include (1) the existence of a prospective business relationship containing the probability of future economic rewards for plaintiff; (2) knowledge by defendant of the existence of the relationship; (3) intentional acts by defendant designed to disrupt the relationship; (4) actual causation; and (5) damages to plaintiff proximately caused by defendant’ conduct. (Buckaloo v. Johnson (1975) 14 Cal.3d 815, 122, Cal.Rptr. 745, 537 P.2d 865.) The general wrong inherent in this tort is the unlawful interference with a business opportunity through methods that are not within the privilege of fair competition. (See 5 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 652, p. 740.)
None of the above listed elements have been plead by Plaintiffs.
Conclusion
Defendants’ demurrer should be sustained as to Plaintiffs’ First, Second and Third Causes of Action because Filter, Mejlszenkier, Patchett and Hedum enjoyed absolute immunity as prosecutors acting within their official capacity and because this immunity attaches to CDAA through the doctrine of respondent superior. Because handling and presenting evidence were within the scope of employment, allegations of concealing exculpatory evidence do not vitiate the privilege.
Further, the demurrer should be sustained on behalf of each defendant as to Plaintiff’s Third Cause of Action for failure to state facts sufficient to constitute a cause of action because Plaintiffs have plead none of the elements necessary to sustain a cause of action for interference with prospective business advantage.
WHEREFORE, Defendants pray for judgment as follows;
1. This demurrer be sustained and plaintiffs take nothing by their complain;
2. For costs of suit incurred herein;
3. For reasonable attorney’s fees: and
4. For such other and further relief as the Court may deem just and proper.Defendants Gale Filter, Denise Mejlszenkier, Anthony Patchett, Kyle Hedum and California District Attorneys Association, in support of their Demurrer to Plaintiffs’ Complaint for Damages, request the Court to take judicial notice of the following:
1. Defendants request that the Court take judicial notice that FILTER MEJLSZENKIER, PATCHETT and HEDUM were sworn as Deputy District Attorneys of Sierra County on August 22, 2002, June 11, 2002, October 28, 2002 and November 27, 2001, respectively, by Sierra County Court Executive Officer Jan Hamilton, under California Evidence Code § 452(h) . The fact of Defendants’ status as Sierra County Deputy District Attorneys is not reasonably subject to dispute and is capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. Defendants further request that judicial notice be taken under California Evidence Code § 453 as each party has been given sufficient notice of the request and the Court has been furnished with sufficient information to take judicial notice of the matter.
2. Defendants request that judicial notice be taken of the attached signed Oaths For the Office of Deputy District Attorney, administered and maintained by Sierra County Court Executive Officer Jan Hamilton, pursuant to California Evidence Code §§ 452(d)(1) and 452(h). The documents comprise records of the Sierra County Court and the fact of Defendants’ status, as Sierra County Deputy District Attorneys is not reasonably indisputable accuracy. Defendants further request that judicial notice be taken under California Evidence Code § 453 as each party has been given sufficient notice of the request and the Court has been furnished with sufficient information to take judicial notice of the matter.
3. Defendant request that judicial notice be taken of California Government Code § 821.6, which states: “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” This request is made under Evidence Code § 451, which provides that judicial notice shall be taken of the decisional, constitutional and public statutory law of [California] and of the United States.#1 Complaint Filed February 13, 2004.
MICHAEL M. MILLER
Post Office Box 941
Alleghany, California 95910
(530) 287-3223Plaintiff in Propria Persona
GEORGE R. GILMOUR (SBN 62169)
6536 Arlington Boulevard
Richmond, California 94805
(510) 237-2800Attorney for Plaintiff Original Sixteen-
to-One Mine Inc., a California corporationIN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SIERRA
UNLIMITED JURISDICTIONCase No.6293
COMPLAINT FOR DAMAGES
AUTHORITIES IN OPPOSITION
TO DEMURRER OF GALE
FILTER, DENISE MEJLSZENKIER,
ANTHONY PATCHETT, KYLE
HEDUM, and CALIFORNIA
DISTRICT ATTORNEYS
ASSOCIATIONHEARING DATE: 5/28/04
TIME: 2:30 p.m.
DEPT: 1MICHAEL M. MILLER and
ORIGINAL SIXTEEN-TO-ONE
MINE, INC., a California
corporation,
Plaintiffs,vs.
GALE FILTER, DENISE
MEJLSZENKIER, ANTHONY
PATCHETT, KYLE HEDUM,
CALIFORNIA DISTRICT
ATTORNEYS ASSOCIATION,
and DOES 1 through 1621,
inclusive,
Defendants.
__________________________
Plaintiffs allege:
PRELIMINARY ALLEGATIONS
1. Plaintiff ORIGINAL SIXTEEN-TO-ONE MINE, INC. is, and at all times herein mentioned was, a corporation duly organized and existing within the State of California with its principle place of business located in Sierra County, State of California.
2. Plaintiffs are informed and believe and thereon allege that each of the personally-named defendants are, and at all times mentioned herein were, attorneys at law, licensed to practice in the State of California, employees of defendant CALLIFORNIA DISTRICT ATTORNEYS ASSOCIATION, and residents of Sacramento County, State of California.
3. Plaintiffs are informed and believe and thereon allege that defendant CALIFORNIA DISTRICT ATTORNEYS ASSOCIATION is, and at all times herein mentioned was, a non-profit corporation organized and existing within the State of California with its principle place of business located in Sacramento County, State of California.
4. Plaintiffs are ignorant of the true names and capacities of defendants sued herein as Does 1 through 1621, inclusive, and therefore sue these defendants by such fictitious names. Plaintiffs will amend this complaint to allege their true names and capacities when ascertained. Plaintiffs are informed and believe and thereon allege that each of the fictitiously named defendants is responsible in some manner for the occurrences herein alleged, and that plaintiffs’ damages as herein alleged were proximately caused by such defendants.
5. Plaintiffs are informed and believe and thereon allege that during all times herein mentioned each of the defendants was the agent and representative of each of the remaining defendants, in doing the things herein alleged, was acting within the scope of said agency, and that each of the defendants is thus jointly and severally liable for the damages suffered by plaintiffs.
FIRST CAUSE OF ACTION
6. Plaintiffs refer to and incorporate herein as though fully set forth Paragraphs 1 through 5, inclusive.
7. Plaintiffs are informed and believe and thereon allege that on or about May, 2002, defendants, and each of them, knowingly and willfully conspired and agreed among themselves to without probable cause or other reasonable bases have felony criminal charges brought against plaintiffs in the County of Sierra, State of California.
8. Plaintiffs are informed and believe and thereon allege that pursuant to and in furtherance of said conspiracy on June 12, 2002, defendants caused a complaint to be filed in the County of Sierra, State of California, against plaintiff MICHAEL M. MILLER and one Jonathan Farrell alleging that on November 6, 2000, at and within the County of Sierra, State of California, plaintiffs and said Farrell violated Section 6425(a) of the California Labor Code, to wit: violation of occupational safety or health standard, order, or special order causing death or permanent or prolonged impairment, when acting as an employer and as an employee having direction, management, control or custody of any employment, place of employment, or of any other employee.
9. Plaintiffs are informed and believe and thereon allege that on October 29, 2002, further pursuant to and in furtherance of said conspiracy, defendants, and each of them, wrongfully misled the Sierra County Grand Jury by inter alia concealing exculpatory evidence, to return a two count felony indictment against plaintiffs and said Jonathan Farrell, charging each of them with involuntary manslaughter in violation of Penal Code Section 192(b) and Labor Code Section 6425(a), to wit: that plaintiffs and said Farrell, while acting as the employer and as an employee having direction, management, control and custody of any employment, place of employment, and of another employee, willfully violated an occupational safety or health standard, viz., Title 8, California Code of Regulations Section 7010(e)(9-60), and that that violation caused the death of one Mark Fussell, an employee of plaintiffs.
10. On February 13, 2003, the Superior Court, County of Sierra, dismissed the charges against plaintiffs.
11. Plaintiffs are informed and believe and thereon allege that defendants, and each of them, acted without probable cause in initiating the prosecution of plaintiffs in that they did not honestly, reasonably, or in good faith believe plaintiffs to be guilty of the crime charged because there existed no substantial evidence of plaintiffs’ negligence, inadvertence or other wrongdoing.
12. Plaintiffs are informed and believe and thereon alleged that defendants, and each of them, acted maliciously in instigating the criminal prosecution in that they knew throughout that they lacked any probable cause for doing so.
13. As a proximate result of the criminal prosecution initiated by defendants, plaintiff have been severely damaged.
14. Plaintiff are informed and believe and thereon allege that defendants’ acts were willful, wanton, malicious, and oppressive in that they were undertaken and pursued without any reasonable grounds whatever. These acts therefore justify the awarding of punitive damages.
WHEREFORE, plaintiffs pray judgment against defendants, and each of them, as hereinafter set forth.
SECOND CAUSE OF ACTION
(Intentional Infliction of Emotional Distress)
15. Plaintiffs refer to and incorporate herein by reference Paragraphs 1 through 14, inclusive, as though fully set forth.
16. Plaintiffs are informed and believe and thereon allege that defendants’ conduct was intentional and malicious and done for the purpose of causing plaintiff MICHAEL M. MILLER to suffer humiliation, mental anguish, and emotional and physical distress, and was conducted with a wanton and reckless disregard of the consequences to said plaintiff.
17. As a proximate result of the acts alleged above, plaintiff MICHAEL M. MILLER suffered humiliation, mental anguish, and emotional and physical distress, and has been injured in mind and body as follows: said plaintiff suffered, and continues to suffer, the consequences of the very real threat of having the remainder of his life physically, economically, socially and psychologically destroyed.
18. By reason of the acts alleged above, said plaintiff’s ability to pursue his usual occupation as the chief executive officer of plaintiff ORIGINAL SIXTEEN-TO-ONE MINE, INC.has been undermined, and he has lost significant income as a consequence.
19. The acts of defendants alleged herein were willful, wanton, malicious, and oppressive, and justify the awarding of punitive damages.
WHEREFORE, plaintiffs pray judgment as hereinafter set forth.THIRD CAUSE OF ACTION
(Intentional Interference with Prospective Advantage)
20. Plaintiffs refer to and incorporate herein by reference Paragraphs 1 through 19, inclusive, as though
fully set forth.
21. Defendants’ actions as herein alleged resulted in a severe undermining of the previously-sterling business reputation of plaintiff ORIGINAL SIXTEEN-TO-ONE MINE, INC. and rendered said plaintiff’s ability to continue in business nearly non-existent.
22. The aforementioned acts of defendants, and each of them, were willful, oppressive and malicious. Plaintiff ORIGINAL SIXTEEN-TO-ONE MINE, INC. is therefore entitled to punitive damages.
WHEREFORE, plaintiffs pray judgment as follows:
On the First Cause of Action, to both plaintiffs MICHAEL MILLER and ORIGINAL SIXTEEN-TO-ONE MINE, INC.:
1. For general damages according to proof:
2. For exemplary and punitive damages;
On the Second Cause of Action, to plaintiff MICHAEL MILLER:
1. For general damages according to proof:
2. For exemplary and punitive damages;
On the Third Cause of Action to plaintiff ORIGINAL SIXTEEN-TO-ONE MINE, INC.:
1. For general damages according to proof:
2. For exemplary and punitive damages;
On all causes of action, to both plaintiffs MICHAEL MILLER and ORIGINAL SIXTEEN-TO-ONE MINE, INC.:
1. For costs of suit herein incurred; and
2. For such other and further relief as the court may deem proper.
February 12, 2004.
__________________________
GEORGE R. GILMOUR
Attorney for Plaintiff
SIXTEEN-TO-ONE MINE, INC.
_________________________
MICHAEL MILLER
Plaintiff in Propria
PersonaFirst of all congratulations to Mike for trusting his instincts/feelings for smelling the rat in the first place – because now it looks as if the rats are scurrying for their holes. I am looking forward to the annual meeting and an update on the latest and greatest news concerning yet another battle of the little putting one over on the big guy.
The recent article that appeared in the Mountain Messenger, also on this web-site where I first read it, addressed the current statis of the civil suit brought against the CDAA by the Original 16 to 1 Mine, for damages incurred while the CDAA fraud tried to persist.
While most recent discussions on this forum have centered around Fed-monetary-policy, (extremely valid discussion, one I’m intrigued by and learn from all related site-citations), there is an absence of perspective from the regulars here….so I implore you all to chime in, after me, since I’m the first to bite it off, and get the juices flowing.
I think the CDAA bit off more than they thought they could chew, knowing they were immune; which turned out to be thinking they were immune from civil action. This has never been tested in court, and will be, since never before has a vigilante “legal” force maskerading as an appointed-body-representing-jurisdiction been taken to task, challenging a stated body of law and court records with lies and deceit, which the CDAA has been exposed for doing.
And now, there needs to be accountability.
Lawyers are valuable when the cause is just. In this case the cause was fraud, politically motivated fraud, a vigilante wild-cat attempt to dismantle and re-define a shut-case. Now we must have accountability, or there’s no stopping the lynch-mob.
I hope you all chime in.
In response to the two forum entries by Gold Master. The first being on 05/07/03. I figured that these were the suggestions and observations of a well meaning individual who had no first hand knowledge of the Alleghany mining district. The mining plan that was suggested might be fine in Canada or “Down Under” or even Arizona. In Alleghany, it would be the equivalent of putting a core drill on the roof of your house, drill every five feet and try to find grapefruit!!! As for management organazation and protection, there could be some merit in those suggestions but, that’s up to the “Sixteens” officers. As for the entry of 05/08/03 (which follows this one) well… It flat ticked me off! Are you sure that you don’t work for the CDAA? If you can’t run your business and apply a little shoe leather to somebody’s tail feathers who tried to ruin your business and everything around you, then you don’t belong in business! I think that Gold Master’s take on the whole CDAA situation is just a little too goody-goody for me. There were some people who attacked this country a short time ago who thought that there wouldn’t be anything that we could do about it. That’s not the American way. I think Gold Master should change their name to Gandhi. As for the rest of Gold Masters “Armchair Quarterbacking,” I’m sure Mike Miller would probably say (not trying to put words in your mouth Mike) “Been there, done that!” As a finishing statement I would like to submit the mining plan that has been used for over one hundred years In Alleghany, and it still works today. “Less talk. Break more rock!”
Return? The website is reflecting an 80 cent bid. Not too long ago the stock traded at 20 cents. I call that progress. This is a significant increase in the value of our shares. For the past years the high end of the share’s trading range was just above 50 cents. Obviously, the new buyers have confidence in management.
The recent attack by the CDAA has cost the Company its reputation to do any current refinancing. This has impacted the president’s plan to open up the Red Star property for development.
Michael Miller saved the Company thousands of dollars in legal expense through his innovative approach to cost cutting while not degrading the quality of its defense. Has anyone thanked him?
I can assure shareholders that there are competent people in the Company, and along with certain other shareholders, that are giving their experience and time that should make the difference in moving us ahead.
For people who think they hold a stock with little return, I can only direct your attention to the fate of millions of people who invested in the NASDAQ stocks in the late 90’s.
Our Company, aside from the distractions from the the CDAA and governmental agencies and the lack of operating cash, may have been one of the best performers compared to all of the other stocks that people were buying as the old century came to its close.
People should be aware of the fact that Michael Miller saved this Company and your investments in it by tenanciously beating back the CDAA with the aid from two sympathetic and brilliant attorneys.
Rick
I thought your last piece was excellent. Your contributions along with your inspiring insight bring creditability to the Forum and they are most educational. ThanksHey there.
Now that we’ve endured the 2003 Diversion…..Today’s G. Davis State-of-the-State-Show, during which he’s ‘warned’ us (the private-sector-producer side of the equation) of the severity of the issue, I’ve got a SCOOP.
Let’s state publicly, whether through a press conference, an editorial, perhaps even an embarassing public open letter to the Lord Gov Himself how it works:
Stifle chance, stifle success; And while you’re at it forget whatever revenue is gained through any tax levied against the successful endeavor.
Here’s a great illustration: Let’s have G. Davis and the Original Sixteen to One Mine square off on a game-board, both sides standing there with bare hands. Next, allow each side equal access to an undeveloped garden plot, say 30 feet by 30 feet, each without gophers or moles or other undefined pests, yet, both plots must pay a tax based upon whatever production results from the endeavor. (G. Davis would try to say the more flowers come up, the more you owe.)
Allow that each side has a green light to plant anything: plant flowers, or veggies, or weeds for that matter, and in ten weeks present flowers or veggies or weeds (anything that’s been undertaken) at the next State-of-the-State-Show.
G. Davis: Tax the results.
Now, if nothing’s planted, there’s no tax. But if some flowers come up, or God forbid some marketable comodity, why, there’s a tax.
And some new rules about planting flowers. And more rules about which flowers to plant (some people might not like the flowers you decided to grow.) And then a Flower Regulation Commission to regulate the unfair way you didn’t plant flowers, like the guy who let his chance to plant flowers peter out so that the Commission could regulate the unfair way you planted flowers.
Oau: “Actually, we discovered something, not planting flowers, they just came up on their own. All we were doing was checking out our opportunity, decided instead to dig a little deeper, and look what we found: gold.”
“Not, fair. You cheated.”
“We did…how?”
“We didn’t look for gold in our garden. Maybe if we had a gopher, and a gopher hole, maybe we did, but hey, gophers are protected. So, we aren’t looking down gopher holes for your exploitation crap, so it’s unfair: You’re now under suspicion for not only breaking the rules of gardening, also taking advantage of gopher holes and whatever’s inside them, especially if a quartz deposit has gold in it, that’s what rules have been broken. Now we’re going to quit this experiment, not only that but regulate garden development: (….throw the game-pieces around the room, turn over the Monopoly Board) and make you clean it up.”
“But, our garden has flowers, and there’s gold underneath, which generates revenue to the treasury, those taxes we were talking about. How much revenue are you sending to the treasury, your garden still sitting there undeveloped?”
“Unfair: ours doesn’t have flowers, or gold.”
“You haven’t even looked! You haven’t even turned the ground! You didn’t plant any seeds, being all busy watching us plant ours; we have flowers, wish you did too. In fact, if you’d try and can’t produce any flowers, come over: we’ve got some you can buy. Even give them to you if you can’t afford it. BUT….”
“But what?”
“You have to try.”
“Unfair!! Unfair again. To make sure we all have flowers, next time you try to take advantage of us, (planting seeds both had), we’ll make sure this never happens again. Flowers are just for rich people, on their tables.”
And so this is where we are.
Given the G. Davis Administation’s dependence on revenue, ask this question:
Where would success be, if no one planted any seeds?
Although the Stella Awards may exist, the awards given as noted are for fictional events and are being emailed I believe for fun. Who’s laughing? You can check this out yourself by researching the town’s press or court system; or checking website’s such as truthorfiction.com or about.com, etc. Don’t believe everything you read!
I received the following letter from a thirteen year old shareholder. If a 13 year old can figure out America’s single biggest problem affecting the quality of our lives, what is wrong with our politicians, our judicial system, our leaders and ourselves?
“In my opinion there are far too many Lawyers in our country. As a result, people are being sued for th most ridiculous things.
There is now a yearly award given for the outrageous lawsuit named after 81-year- old Stella Liebeck. It all started when Stella spilled coffee on herself and successfully sued McDonalds. This case inspired the Stella Awards for the most successful lawsuits in the United States.
Kathleen Robertson of Austin, Texas, was awarded $780,000 by a jury of her peers after breaking her ankle tripping over a toddler who was running inside a furniture store. The owners of the store wewe surprised at the verdict, considering the misbehaving little toddler was Mrs. Robertson’s son!
Terrence Dickerson of Bristol, Pennsylvania, was leaving a house he had just finished robbing by way of garage. He was not able to get the garage door to go up since the automatic door opener was not working. He couldn’t reenter the house because the door connecting the house and garage locked when he pulled it shut. The family was on vacation, and Mr. Dickson found himself locked in the garage for eight days. He lived off a case of Pepsi he found and a large bag of dry dog food. He sued the homeowner’s insurance claiming the situation caused him “mental Anguish”. The jury agreed to give him $500,000.
A Philadelphia restaurant was ordered to pay Amber Carson of Lancaster, Pennsylvania, $113,500 after she slipped on a soft drink and broke her tailbone. The beverage was on the floor because Ms. Carson had thrown it at her boyfriend 30 seconds earlier during an argument.
This year’s favorite could easily be Mr.Merv Grazinski of Oklahoma City, Oklahoma. Mr. Grazinski bought a brand new 32-foot Winnebago motor home. On his first trip home, driving onto the freeway, he set the cruise control at 70 mph and calmly left the drivers seat to go back and make himself a cup of coffee. Not surprisingly, the R.V. left the freeway, crashed and overturned. Mr. Grazinski sued Winnebago for not advising him in the owners manuel that he couldn’t actually do this. The jury awarded him $1,750,000 plus a new motor home. The company actually changed their manuals, just in case ther were any other complete morons buying their recreation vehicles.
And people wonder why lawyers are so rich and insurance rates are so high.”For years now, through clever diversion tactics, imposing shut-downs, questionable citations, politically appointed bodies of law, eventually the CDDA and now inconvieniently (for him) back to the G. Davis administration’s need to finally address the obvious, without another bill to defer responibility: The Original Sixteen to One has real logistical and stable ground upon which to stand, than what the G. Davis politically appointed quicksand can support.
Whether or not the imbedded Bench feels the bottom of the pit remains to be seen. So . . .we keep an eye open to truth (always the truth,) and watch for the next move.
However, given the fiscal predicament now facing the G. Davis administration’s limited longevity (temporarily preventable should it entertain progressive economic policy, i.e. private sector autonomy,) we wonder if no-one will show up for the show-down.
Dismissal would be sweet; defeat will be even better.
“No man’s life, liberty, or property is safe while the legislature is in session.”
Mark Twain
Seems curious that no one wants to bite this one off except Mike and perhaps J. I will.
Accidents will always happen, no matter the precaution (prescibed or not) by those of us who aren’t captivated by the restrictions of social (dare I say commy?) wind-sniffing. And when they do, sharks circle.
CDAA has no better target?
Typically we’d expect $$$$ as the motivator, but that’s certainly not object (or is it?)….so what is?
I’m willing to wait, just a while, to see who’s got the balls to say it besides me.
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