02/20/2003 – Mountain Messenger
STAY TUNED
Editor:
The Mountain Messenger Crackpot wrote on July 13, 1995, "We look forward to the annual Grand Jury report in the same spirit we hope our readers have anticipating our April first editions." He continues, "Grand Juries are pretty good at presenting one side of an issue. This watch dog organization, this monument to open government is cloaked in secrecy and operate behind closed doors. Free and open debate it ain’t. Preserving open government through a secret society reminds us of a simile about the preservation of virginity."
People have asked, what were my emotions when Judge Young said, "Motion granted, dismissed," to the grand jury indictments induced by the California District Attorney Association.
Matter of fact, yes, it was my in pro per Motion to Set Aside that set us free from the vice grip of Gale Filter and Larry Brown and their Association.
Snarls? Smiles? No. The CDAA prosecutors had time to challenge the Motion, which they chose to laugh at instead and ridicule us miners as rural quasi-nitwits. They ignored its legality. There is no vindication nor is there vengeance.
Joy? Anger? No. The event is no longer a prison threat to our lives. But since no government or safety agency suggested any criminality, conviction was remote. Nevertheless once people are sucked into the system, it stays on their minds, in their thoughts.
Grateful happiness? No. Labeling me a killer of our friend and fellow miner, a derelict in the mining crowd, my peers, is history. But the accusations cannot be withdrawn from the minds of the widespread population coast-to-coast and north-to-south. The effects remain.
Humiliated with scandalous allegations? Yes. Scofflaw? That describes the CDAA and its employees. The threat of conviction in itself was damaging enough. As important is the collateral damage to my employer and the miners, people of Sierra County and the region. Also the economics and our cultural environment experienced irreparable damage. The CDAA carpetbaggers recorded willful malicious phrases during their performance before the Grand Jury.
But, guess what? A record of this judicial taking now exists in the court. All of this is preserved in grand jury and Superior Court records.
Because of the CDAA requested "gag" order, a backlog of important information for us in rural California now exists. Stay with us in educating your readers about our prosecution. Everyone in Sierra County and the state should be outraged (except perhaps half of the 180,000 lawyers registered with the California State Bar). Especially the twelve grand jurors.
Mike Miller-Alleghany
02/21/2003 – Mountain Messenger
District Attorney Larry Allen stated emphatically he will not re-file charges stemming from the accidental death of miner Mark Fussell at Alleghany’s Sixteen to One Mine. Fussell was killed rehabilitating a long-unused drift in November 2000.
"The standard for a trial is considerably higher than for an indictment," Allen noted. "In this sort of case, nine out of ten times [the prosecution] would get a hung jury or a ‘not guilty’ verdict. In light of this, facts with which I have become aware since taking office, and the considerable expense to the county, I have closed the book on this incident."
Allen said a recent underground tour of the mine’s accident site made his understanding of the incident much clearer.
Last July, with the D.A.’s office being occupied by lame duck Sharon O’Sullivan, the California District Attorneys’ Association (CDAA) filed manslaughter charges against mine CEO Mike Miller, mine foreman Jonathan Farrell and the Original Sixteen to One Mine Corporation.
CDAA declined an opportunity to place its case before a judge in a preliminary, arranging instead to have the grand jury indict.
Last Thursday, February 13, Judge Stanley Young granted a motion by Miller and Sixteen to One lawyer Thomas Crary and dismissed the grand jury indictment against the trio. Young agreed with the defendants that evidence of innocence was improperly withheld from the grand jury.
"The CDAA behaved unethically, lied to the grand jury, and caused damage that may prove permanent to the mine. They have undertaken a policy of ‘rural cleansing,’ attempting to destroy all facets of rural life," Miller said following the dismissal charges.
CDAA declined to speak to The Messenger. Neither Gale Filter nor Denise Mejlszenkier, two attorneys prosecuting the Sixteen to One case, nor Executive director Larry Brown returned our calls.
The mine, which has been suffering from deflated gold prices and from the lack of recent discovery of a particularly rich pocket, has found potential investors remarkably leery of putting money into a mine with management facing murder charges.
The Sixteen has historically been a "boom and bust" mine; it has fabulously rich pockets mixed with poor ore. To comply with state water regulations, some years ago the mine decided not to process the poor rock, but to aim for rich targets using heretofore unknown radar technology.
Miller has for some time, been researching civil action against CDAA prosecutors, who are well shielded from personal responsibility by the immunity given prosecutors and police. Nevertheless, that immunity does not hold if the complaint can prove malice.
Speaking on the courthouse steps following the dismissal, attorney Crary noted the CDAA prosecutors refused to tell the grand jury that a Cal-OSHA inspector had inspected the fatal site a week before the accident and seen no potential hazards.
“Public prosecutors have immunity. As to whether people can come in, get deputized, and then leave, there is almost no case law on that. But if they were malicious, there is no immunity.
“Were they malicious? They conducted themselves maliciously.”
The prosecution was begun by the second of two CDAA “circuit prosecutor” projects. The first is a relatively long-standing program available to rural county district attorneys who may not have the expertise or horsepower to prosecute Fish and Game and other environmental cases. When called by a district attorney, the CDAA sends a trained staff prosecutor to be deputized in the requesting county.
The second is a recent program, allied with the state Department of Labor Relations, which includes Cal-OSHA (California Occupational Safety and Health Administration.) According to the contract between CDAA and the Department of Labor Relations, trained prosecutors are similarly on tap for cases of criminal negligence in industrial deaths.
In the Sixteen to One case, however, CDAA over-rode Cal-OSHA officials who specifically eliminated criminal fault from the accident.
This fact, known to CDAA lawyers, was not relayed to the grand jury.
Furthermore, then-District Attorney Sharon O’Sullivan never asked for CDAA’s assistance. The circuit prosecutors brought the case to Sierra County already “investigated, prepared and ready for court.”
The CDAA in now 0-2 in making criminal cases from industrial accidents. A case involving a farm worker being killed in a combine was dismissed in the preliminary hearing. The Sixteen case, the association’s third, was likewise dismissed before trial. The second case, in Chico, is currently wending its way through the court system. A fourth case, also involving a farm death, was filed in Merced last week.
District Attorney Allen, a former CDAA environmental prosecutor does not believe the association is culpable, nor skirting the edges of ethics.
“Grand jury cases are tough. The prosecutor must act as both prosecutor and defender. When there are problems with these cases, it is usually from this conflict.” Said Allen.
Tom Crary, having once been a member of the CDAA, but never an employee, is not charitable.
"Since 1850, we’ve had a system with an executive department employed an Attorney General and District Attorneys. They were public employees, serving the public."
"Now we’ve inserted a private group into that process. I don’t know if in the long haul this will prove beneficial, appropriate or necessary."
Crary notes the contract between the state agencies and CDAA also require the association to provide "experienced" prosecutors to the counties.
In the Sixteen case, one of the association’s lawyers had only recently graduated from law school, prompting some to surmise the whole case was merely an exercise to provide her with courtroom experience.
"Then there are professional ethics that prohibit a private attorney looking to be retained in a specific case, especially for mere monetary gain."
Nor is Crary so sure the circuit prosecutors will enjoy the immunity of their publicly employed brethren.
"Look at it this way: if the sheriff goes and gets a posse, they’ve got a reasonable expectation of governmental immunity. But if the posse goes to the sheriff, we’ve got a different situation."
02/27/2003 – Mountain Messenger
A letter to Legislators
Gentlemen: As you seek to cut the budget, please consider giving rural counties one bit less help. You have funded, and are considering further funding, the California District Attorney’s Association to help rural counties.
Speaking from one county they’ve already helped, please spare us more.
The CDAA, by the contract made with you, is to assist local D.A.’s upon request, offering expert assistance in environmental and worker-safety cases.
Here, without such a request they brought in rookies to prosecute an absurd case over the objections of Cal-OSHA inspectors. They shopped their case to a lame duck, lied to our Grand Jury, misrepresented themselves as peace officers, alienated themselves from our courthouse assistants, refused to talk to the press, even now refusing to return calls from elected officials, and nearly bankrupted one of the county’s oldest businesses.
Fortunately, a judge bounced the case well before trial.
For the following reasons, you should save the state at least a couple hundred thousand dollars by cutting ties with CDAA:
CDAA is unethical: their mistreatment of the grand jury, despite specific requirements of the law, is beyond the pale. Misrepresenting oneself as a peace officer is elsewhere a crime.
CDAA is using the criminal justice system for financial gain, or political ends. Either they rushed this pathetic case to court in a bid for re-funding, or opted during the recent gubernatorial election to prove the administration “worker friendly.”
CDAA has no appreciation of rural custom, culture nor heritage.
CDAA is responsive to no one, refusing to talk to press or elected officials.
CDAA represents a dangerous concept: a private prosecutorial firm ultimately responsible to no one and evidently immune from consequences. Incumbent District Attorneys are unlikely to complain of an association that benefits them elsewhere.
Don Russell
Editor
04/11/2003 – Mountain Messenger
SACRAMENTO – The California District Attorney’s Association (CDAA) filed suit against itself in Sacramento Superior Court following an accident in the law firm’s office.
CDAA became known locally when it lied to the grand jury in an attempt to press unwarranted murder charges against the Sixteen to One Mine’s management following the accidental death of a miner. A judge dismissed the charges before the matter came to trial.
Ms. Rebecca Allen, a relatively recent CDAA employee, tripped on office carpet as she carried a sheaf of anti-war petitions from the office copy machine back to her cubicle. Ms. Allen suffered a badly twisted ankle and internal injuries. As a result of the fall, Doctors opined, she will never achieve her full growth.
Speaking for the CDAA, attorney Gale Filter explained his association was responding to internal pressure in filing the charges. District Attorneys from rural counties are holding the CDAA to a higher standard than previously sought.
"Yes, I know Ms. Allen was doing something forbidden at work: she was working her after hour peace-creeping avocation while on the job. But we regularly prosecute employers for accidents that happen to employees violating company policy."
Filter explained that things have recently changed in the Association, following the appointment of former CDAA Director Larry Brown to a post as Assistant U.S. Attorney in Sacramento.
"With the recent change in management, the CDAA discovered the concept of ‘ethics’ is supposed to apply to lawyers, too. You can imagine our surprise," Filter confided.
As a consequence, Filter continued, CDAA is trying to behave in a manner designed to cultivate respect from civilians.
"The Association’s new line is ‘what’s good for the goose is good for the gander,’" he explained.
Filter paused, and looked up. "What’s that mean anyway?"
Whining only slightly, Filter read from a prepared statement that in the future, CDAA would thoroughly investigate cases before rushing them to trial, but would hold themselves to a similar standard.
"Well, we really didn’t have Cal-OSHA investigate Ms. Allen’s accident," Filter admitted, "But we’re confident that if they had, they’d fault us. I mean, after all, Ms. Allen isn’t a lawyer, so probably isn’t used to carpet that thick."
"And just like other cases we’ve prosecuted, we don’t think it matters if the victim is a professional or not; if something bad happens, we’re here to make sure something worse will, too," he concluded.
This front-page article is part of the annual April 1st edition of the newspaper. Congratulations Don Russell for your, intuition and writing skills.
04/17/2003 – Mountain Messenger
Mike Miller, CEO of the Original Sixteen to One Mine in Alleghany, has filed multi-million dollar claims against Sierra County.
Miller is seeking redress for the California District Attorney’s Association (CDAA) recent attempt to press criminal charges on the mine and management following an accident which killed a miner
A judge dismissed the charges before the issue came to trial.
The California District Attorney’s Association is a private corporation which obtained the authorization of Sierra County’s then district attorney to press the charges.
Following vindication Miller began looking for damages, claiming $24 million in damages for the mine, and $50 million for damages to himself.
The acts of the county prompting the claim, Miller wrote, include but are not limited to: breach of duty, malicious prosecution, violation of criminal law, and violations of both the state and federal Constitutions.
At the conclusion of the criminal complaint against Miller and the mine, the Judge agreed that CDAA lawyers had not presented exculpatory evidence (that which shows a lack of guilt) to the Grand Jury as required by law.
The losses which Miller is trying to recoup include costs of defending the mine and management, loss of market capitalization, an inability to raise working capital during the criminal proceedings, loss of property, loss of income, physical and emotional damages.
Miller will, however, happily settle with the county for less: much less. As in, maybe, a dollar.
“This is my county, so in a sense, I’m suing myself,” Miller told The Messenger. “I’m not trying to bankrupt the county. This is simply a step in the process. I’m hoping the county will settle this claim for an extremely nominal figure, putting the county ‘out of the loop.”
Miller’s aim is centered directly on the CDAA, which he believes will not be protected by the indemnity given district attorneys.
“Yes, I want to recover the damages this organization caused me,” Miller concluded, “But every bit as important is to prevent the kind of malicious, mindless prosecution in which the CDAA seems to specialize. I want that group and those people to be accountable for ruining lives and business in their pursuit of “rural cleansing.”
The prosecution of the Sixteen to One mine was the second industrial accident the CDAA declared criminal, and the second to be thrown out of court before trial. That corporation currently has two more cases before state courts.
06/11/2003 – The Union
An Alleghany gold mine president continued his fight against U.S. Department of Labor citations Tuesday at a hearing in Nevada City.
Michael Miller, president of the Original Sixteen to One mine, said he is appealing citations that resulted in $32,000 in fines.
The mine was cited for two violations by the Mine Safety and Health Administration, a division of the Department of Labor, after the death of miner Mark Raymond Fussell.
Fussell, 36, was killed in the mine Nov. 6, 2000, when his head was pinned between the locomotive he was riding on and a low-hanging ore chute.
Tuesday’s hearing before Administrative Law Judge Gary Melick was in Nevada City Hall. It is expected to resume today with Miller’s witnesses.
Department of Labor attorneys called inspectors to testify about the locomotive Fussell was riding when he died. Investigators say the locomotive had an inoperable first gear, which made it accelerate faster.
One inspector said Miller told him he wouldn’t allow a defective piece of equipment to operate.
Mine safety inspector Steve Cain said the mine had a hands-off policy that left it up to the miners to correct defects.
The miner had the authority to take the defective train out of service, Cain said.
If that had happened, Cain said, Fussell might still be alive.
Miller said during a break in the hearing that he didn’t believe the locomotive was defective.
"We’ve got policies about defective things," Miller said.
John Dickey
02/19/2004 – Mountain Messenger
DOWNIEVILLE-One day before the statute of limitations ran out, the Sixteen to One Mine, Inc., and its president, Mike Miller, filed a civil suit against the California District Attorneys Association (CDAA).
The suit, alleging malicious prosecution, was filed Friday the 13th, one year to the day Judge Stanley Young dismissed homicide charges against the mine.
The CDAA, a private corporation, contracted with California’s Department of Labor to be available to rural District Attorneys wanting to prosecute cases involving industrial injuries.
Miner Mark Fussell was killed in a November, 2002 accident while preparing an abandoned section of the mine for new work. Cal-Osha, the state Department of Labor’s safety inspection team, found no evidence of negligence on the part of the company.
Then District Attorney Sharon O’Sullivan showed no inclination to file charges, having received the Sheriff’s report which also deemed Fussell’s death an accident in a dangerous occupation.
Nevertheless, CDAA made its own investigation and convinced Ms. O’Sullivan to allow them to prosecute a murder case against Miller, the Sixteen to One and mine manager Jonathan Farrell.
CDAA then presented the case to the Grand Jury rather than following the usual procedure of a Preliminary Hearing, a ploy common to prosecutors seeking to avoid a judge’s oversight of the law.
Although ethically and legally, CDAA was required to present any information indicating the defendant’s innocence, the association’s lawyers did not.
Naturally, the Grand Jury returned an indictment in October, 2002.
There was speculation at the time the Association was in thrall to a politically threatened Governor, who desperately needed organized labor’s help to maintain his political life. Of CDAA’s four similar hastily assembled lawsuits, only one was settled in its favor. Two were rejected by judges before they even approached trial.
Ms. O’Sullivan was turned out of office in January, succeeded by former CDAA employee Larry Allen, who promptly reined in the corporate prosecution. Expressing early misgivings about the case, Allen refused Judge Young throw out the case because of the prosecution’s refusal to present exculpatory evidence to the Grand Jury.
Attorneys are somewhat skeptical of Miller’s chances of success, in the face of the virtual immunity prosecutors have against such suits.
Miller recognized the importance of the issue, but hopes to prove the “for profit” prosecutors do not share immunity with public employees.
So far, Miller notes, there is no case law on the subject, as California is the only state allowing contracted prosecutors.
“There’s one vaguely related case in Maryland that went our way,” says Miller. ‘But we really have to raise this issue. It’s beyond personal. It’s not only our losses, but who’s next? This is terrorism by a private firm using the power of the state.”
The suit does not specify damages, except to mention that more than $25,000 was sought.
04/01/2004 – Mountain Messenger
Alleghany- A unique new law firm is expected to open in this quaint mining town within the next few weeks.
The firm will specialize in mining and personal injury law.
The new firm, Marshall, Brandeis, Darrow and Miller, is expected to hang its shingle near the Underground Mining Museum building.
Mike Miller, whose name graces the firm, explains there will be no actual lawyers on site.
“Marshall, Brandeis and Darrow are all lawyers with wonderful reputations, but they’ve become unresponsive to public needs. There may be some truth to the rumor they’ve contracted with the California District Attorneys Association.”
“But I’m battin’ pretty near .900. I’m pretty sure I can outthink these partners, so they’re really so much window dressing.”
Clients are requested to leave a hefty deposit in small, unmarked bills at the Museum, with a note of the final filing date for any prospective action.
“Legal work is expensive and time-consuming. But I’ll get on it, er, that is to say I’ll have one of my partners get on it right away, unless they’ve got some issues with the mine to attend.”
Miller noted prospective clients should retain their optimism, but not to expect miracles. “Clarence Darrow never really won any cases, you know. Lots of times we’re absolutely right with truth, beauty and virtue on our side. The problem is with the damn judges and legislators.”
Miller is also contemplating running for Supreme Court Justice, state Assembly, state Senate, U.S. House of Representatives, U.S. Senate, Governor, President of the U.S., King of England and Secretary-General of the United Nations.
04/06/2004 – Mountain Messenger
We take this item from our sister paper, The Daily Denouncer and Prevaricator, out of Chipps Flat.
Your readers may be left with the April Fools impression of the new business front shown on the front page of last week’s paper. I have been asked about it too many times and realized that others were left in the dark by your brief article. Here is additional information. Regards,
The Fool on the Hill
The law firm is securely entrenched in Alleghany. There are no attorneys or lawyers working as this firm of law. The causes of interest to the firm were accurately reported in the April 1, 2004 Mountain Messenger. They involve mining law and personal injury law as reported. Darrow, Marshall, Brandies and Miller are partners, as reported. Mr. James T Brady, a noted advocate born in New York on April 9, 1815, is also of counsel. The firm has three cases in areas involving: criminal law, professional ethics law, safety law, administrative law both federal and state, constitutional law as well as mining and personal injury. Michael Miller has been a criminal defendant, accused of murdering a friend and fellow employee in a mining accident. He manages the corporation, which was also accused of murder. It is a harsh accusation for someone to receive; therefore those who make those accusations must be governed by codes of behavior and those codes must be enforced. Their accusations must be grounded in fact and law. He is a plaintiff in one case in Sierra County Superior Court and a Counsel in one case in the United States Court of Appeals for the Ninth Circuit. What does the title of Counsel mean? Is he now an officer of the court whereby he must abide by the California Codes of Conduct like lawyers and attorneys are required to do?
The title of “counsel” in law dates to the king who found his counsel as refractory as his judges and to Pope, in his Imit. Of Horace,II. I. 142:
This is my plea, on this I rest my cause-
What say my counsel, learned in the laws?
What is a counsel if not a lawyer or an attorney? He is an advocate engaged in the direction of the trial of a cause in court. Miller said, “ Ill counsel misled the court and its layers of judges. Damages approach $100 million to all plaintiffs. I could be reticent no longer. Not to disclose the clear disregard by the accusers could not be swept aside. Their arrogance and disdain for the judicial branch of our three-tiered government, if unchecked, will bring down our country.”
05/13/2004 – Mountain Messenger
16 : 1 Begins Move Against CDAA
The Sixteen to One mine naturally suffered while the California District Attorney’s Association tried to make a murder case against its CEO, and its mine manager, following the accidental death of a miner opening a new heading.
The California District Attorneys Association, a private corporation, had contracted with the state to offer special experts to help rural District Attorneys prosecute worker safety violations. Its first attempt was laughed out of court during a preliminary hearing in Yolo County.
CDAA then came to Sierra County, requesting then-District Attorney Sharon O’Sullivan to let them prosecute a “slam-dunk” case against the Sixteen.
Rather than risk another preliminary hearing, CDAA opted to use the Grand Jury to obtain an indictment. That proceeding requires a prosecutor to present any exculpatory evidence, i.e. evidence of the defendant’s innocence.
CDAA opted not to present such evidence, the Grand Jury indicted, and the matter was set for trial.
Justice finally overcame the CDAA;s blatantly political prosecution, but significant damage had been done. And the sensibilities of Sixteen to One President and CEO Mike Miller had been offended.
As reported in the newspaper, the CDAA appeared to be working for the re-election of then-Governor Gray Davis, placating unions and giving the impression the state-funded private corporation was actually concerned about worker safety.
The case was eventually dismissed by newly elected D.A. Larry Allen with the strong concurrence of the judge.*see note
Miller vowed to bring the legal corporation to an accounting, a process so far ignored by the state government. So he sued the corporation and several of its lawyers in civil court.
CDAA, in a demurrer filed with the court, promptly insisted its attorneys are shielded as District Attorneys, who have an incredible immunity from legal transgressions. Its attorneys claimed to have been deputy Sierra County District Attorneys.
In paperwork filed in Superior Court on Monday, Sixteen to One lawyers did not enjoy such immunity, because they had never been lawfully appointed deputy D.A.s.
The law requires deputy D.A.s to take an oath and file “a written appointment by the deputy’s principal…with the county clerk.”
Included in the paperwork filed Monday is a declaration by County Clerk Mary Jungi that no such paperwork has been filed in the past five years.
Therefore, suggests Miller, there have been no deputy district attorneys appointed and thus neither the law firm, nor its lawyers enjoy the immunity sought.
Meanwhile, a Los Angeles Deputy Sheriff reports his inability to serve Miller’s papers on one of the CDAA’s attorneys, one Anthony Patchett. In three attempts, when evidence indicated Patchett was home, he was unable to obtain a response. “Defendant may be evading,” the officer noted.
“You know, that’s a pretty damning charge against an officer of the court,” Sixteen Attorney Gilmore mused.
*Note by Sixteen to One Staff: Judge Stanley Young granted the motion to set aside filed by Michael Miller. Newly elected D.A. Larry Allan did not object to Judge Young’s ruling.
06/03/2004 – Mountain Messenger
Downieville-How, asked the speaker at a placer-Sierra Bank business seminar, does a small business define success?
“We’re still here, aren’t we?” is that measure of success to owners of small concerns, he explained.
To that extent, the lawsuit against the California District Attorneys Association by the Sixteen to One Mine, and its President Mike Miller, is a success. The Sixteen’s claim withstood the first round of defense by the CDAA and the suit will continue.
Miller and the Sixteen are challenging the state’s novel experiment with “for hire” prosecutors, having been Judge Stanley Young threw the case out of court.
The entire case was of dubious merit; casting an accidental mine fatality as a criminal matter. Investigators previous to the entry of CDAA had determined the death a mishap.
The recourse until recently has been political: throw the rascal District Attorney out at the next election. Unfortunately, there is no such recourse