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CDAA Conduct

       

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 By Michael Miller

07/12/2005  3:23PM

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.
 By Michael Miller

07/07/2005  12:14AM

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.
 By Michael Miller

06/09/2005  12:24PM

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.”
_Aristotle

The 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 17,2005

Judge Bob W. McNatt Sitting on Assignment 3
 By Rick

05/23/2005  8:41PM

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!
 By Rae Bell

04/04/2005  2:34PM

The April 6th court date was postponed today for lack of a Judge. A new court date has not been set.
 By Michael Miller

03/24/2005  9:34PM

George and I have worked the past several days to prepare documents. They were due and filed today. George will place his papers on this site after he returns to the Bay area over the weekend (he has been in Alleghany for ten days). This entry includes my declaration George filed today on behalf of Original Sixteen to One Mine,Inc. It pretty well tells the story about what happened to all of us.

GEORGE R. GILMOUR CA Bar No. 61269
6536 Arlington Blvd.
Richmond, California 94805
(510) 237-2800

Attorney for Plaintiff
ORIGINAL SIXTEEN TO ONE MINE, INC.

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SIERRA

MICHAEL M. MILLER and
ORIGINAL SIXTEEN TO ONE MINE, INC.,
a California Corporation,
Case No. 6293
DECLARATION OF MICHAEL Plaintiffs,
M. MILLER RE: MOTION TO STRIKE
v.
GALE FILTER, DENISE
MEJLSZENKIER, ANTHONY
PATCHETT, KYLE HEDUM,
CALIFORNIA DISTRICT

Hearing Date: April 6, 2005
ATTORNEYS ASSOCIATION,
Time: 1:30 p.m.
and DOES 1 through 1621,
Dept: 1
inclusive,
Defendants
____________________________________

Declaration of Michael M. Miller

INTRODUCTION

I was born in Sacramento, California on June 22, 1942. My background and education includes a diploma from the University of California at Santa Barbara. My mining and business experiences began in 1974. I served as a trustee and President of the Sierra County Board of Education and Sierra Plumas Joint Unified School Board. I served as a Sierra County Planning Commissioner for twelve years and was President for two terms. I am licensed as a California Class A General Engineering contractor. I am an approved safety trainer for the federal MSHA agency. I am qualified in the California courts as an expert witness on mining and mining law. I have been a Director of Original Sixteen to One Mine, Inc. since 1977. I was elected President twice and have held that position since April, 1983. Original Sixteen to One Mine, Inc. was incorporated in California in 1911, and has reported financial and other data to the federal Securities Exchange Commission since about 1989.

1. After a CDAA lawyer Kyle Hedum, filed a criminal indictment and issued an arrest warrant, I made repeated efforts to contact Sierra County District Attorney, Sharon O’Sullivan. I phoned her office numerous times and spoke with Sherri Johnson, her secretary. I asked Sherri to keep a phone log to record my phone calls. Mr. Hedum is not nor ever was legally appointed Deputy District Attorney by Sharon O’Sullivan. Mr. Hedum had to know that a county district attorney must appoint him and the appointment must be recorded in the county courthouse with the clerk/recorder. He had previously been legally appointed in Yolo County, which I verified and obtained a certified copy of the appointment. Exhibit One.

2. I went to the Sierra County courthouse and to the clerk, Mary Jungi and asked to see Mr. Hedum’s appointment documentation. There was none. At this time I asked for the appointment documentation for defendants Filter, Mejlszenkier and Patachett. There were none. Exhibit Two, Declaration of Mary Jungi

3. I began writing Sharon O’Sullivan, hoping to get her attention. She answered one of my letters. She and I finally had a phone conversation. She told me that CDAA came to her with a completed investigation proposing to file criminal charges against Michael Miller and Jonathan Farrell. She said that she knew nothing about the issue, wanted nothing to do with the issue and saw no crime and told me that was her representation to CDAA. She told me that she disliked CDAA and how they forced their way into Sierra County and how they behaved. She said it was a powerful organization that could do what it wanted. Sharon said she was not participating in the case and my complaint about the dishonest indictment is between CDAA and me. She was very bitter about Larry Allen, a CDAA lawyer, who ran against her and won. She complained that her office was overrun with three CDAA employees. She also said she was leaving as soon as she gets another job.

A. I wrote a personal letter to Sharon O’Sullivan on July 9, 2002, addressing it as “Dear Sharon”, pleading for her to reevaluate the charges of manslaughter against Jonathan Farrell and myself. I pointed out that “Jonathan, our employer, Original Sixteen to One Mine, Inc. and I have suffered irreparable damages”. I said that she along with the District Attorney in other counties have been “hood winked by a marauding band of carpetbaggers/vigilantes” and that “They will be exposed for what they are and to this point in time I believe you are an innocent victim.” See exhibit 3-A

B. I wrote a personal letter to Sharon O’Sullivan on July 17, 2002, addressing it as “Dear Sharon”, telling her how hard it is to find a lawyer familiar with all the nuances necessary to defend the allegation of criminal behavior of the case and sought a postponement of the speedy trial we had earlier requested upon our arraignment. See Exhibit 3-B

C. I wrote a personal letter to Sharon O’Sullivan on July 18, 2002, addressing it as “Dear Sharon”, memorializing her non-response to my letters. See Exhibit3-C.

D. On July 18, 2002, I received a FAX cover letter and letter dated July 18, 2002, addressed to “Dear Mr. Miller”, telling me that she is not the prosecutor of record and will not discuss the case with me and referred me to defendant Denise Mejlszenkier. Exhibit 3-D

E. I wrote a business letter to Sharon O’ Sullivan on August 28, 2002, addressing it as “Dear Sharon”, informing her that I had been digging into and investigating the reasons for my prosecution. I stand behind all the opinions and accusations contained in the three page letter. Sharon O’Sullivan did not request CDAA to come to Sierra County and file criminal charges against plaintiffs and subsequently prosecute them. I knew this to be true from my investigation into the matter as early as August 28, when this knowledge is memorialized. See Exhibit 3-E

F. The declarations attributed to me and stated by Tom Knox are misleading to the court and a fraud. They contain the idea that Miller and Farrell delayed the preliminary hearing and that is why defendants went to the Sierra County Grand Jury. This is a lie. “Miller and Farrell were ready to hold a preliminary hearing on October 8, 9, &10th. Filter is the one who objected to that date.”

G. On August 22, 2002, I wrote a letter to Kyle Hedum and Denise Mejlszenkier at their employer’s office. I sent a copy of the letter to Sharon O’Sullivan, Lee Adams, Sierra County Sheriff and the Superior Court of Sierra County. I notified all parties that an illegal trespass had occurred on the property of Original Sixteen to One Mine by Denise Mejlszenkier and Keith Powell. Powell represented himself as a peace officer and Denise Mejlszenkier said she had a right to go into the mine and speak with the miners. I denied their request and ordered them to leave the property immediately. See Exhibit3-G.

H. On September 25, 2002, I filed a “Citizen’s Complaint Form” regarding the behavior of Sharon O’Sullivan and the California District Attorney Association asking for an indictment for criminal behavior and disbarment. I wrote an accompanying letter dated September 25, 2002, to the Sierra County Grand Jury alleging that “lawyers employed by the California District Attorneys Association practiced this behavior”: deceit or collusion with intent to deceive the court, violating California Business & Professional Code (2001) Par 6068 and the Rules of Admission, Rule X. Exhibit 3-H

I. On September 30, 2002, I wrote to C.D.A.A. and Gayle (sic) Filter notifying them of the “reckless disregard for the facts and evidence” in violation of Rule 3-110 Failing to Act Competently. He failed in his duty required by statues:, “There is no evidence to support this complaint, but most significantly there is ample evidence that the charges are contrived.” As declared before, I have examined the Sierra County District Attorney files on the case and found a letter from defendant Mejlszenkier to defendant Filter, where she also tells Filter there is no evidence supporting defendant Hedum’s sworn indictment of Miller. The memorandum is to: Gale Filter From: Denise Mejlszenkier, Dated: August 8, 2002. She writes, “Thus far we have no evidence to show that either defendant in the Sixteen to One Mine case knew that chute on the 1700 level of the mine protruded over the track.” This admission supports my conclusions of deceit, fraud and malice action. See Exhibit 3-I.

J. In the letter identified above, Michael Miller writes as a Director of plaintiff Original Sixteen to One Mine. He writes, “You, your association and others are practicing deceit or collusion. Your oath prohibits you from misleading the judge. You misled the judge in the courtroom on August 22, 2002. Exhibit 3-I

K. Included in the Sierra County District Attorney files is a letter from Denise Mejlszenkier to the U.S. Department of Labor dated July 16, 2002. It confirms that defendant Mejlszenkier represented that the “charges against them are based on their willfully violating a Cal/OSHA standard pertaining to restricted clearance.” This letter also establishes that defendant Mejlszenkier uses letterhead as a lawyer working out of the California District Attorneys Association office

L. As President and Director I wrote CDAA Director Larry Brown on October 7, 2002. I informed him about the unethical or dishonest and potential criminal activities of the lawyers under his supervision, thereby eliminating the defense that CDAA Directors were unaware of the activities of its employees in our case. Exhibit 3-L

M. In the Sierra County courtroom, with Judge Stanley Young presiding, defendant Gale Filter testified that Michael Miller had an alarming FBI file as evidence and proof that his concealed weapon permit be revoked and all his guns of personal protection be turned into the Sierra County Sheriff. The inference was that because of his alarming past behavior Miller represented a threat to the CDAA lawyers. Filter’s representation to Judge Young was a lie. Court transcript has been ordered and will be submitted immediately upon receipt as Exhibit 3-M. The FBI report is also in Exhibit 3-M.

N. I thoroughly examined the file given to me by Sierra County District Attorney, Larry Allen. It contained no documents authorized and signed by then District Attorney Sharon O’Sullivan to any of the defendants. Furthermore there are documents from Sherri Johnson to others regarding the case against plaintiffs. Inter Office Memo to Clerk of the Board From Sherri Johnson dated June 11, 2002. Exhibit 3-N.

O. I was notified to present any exculpatory evidence to the Court by October 25, 2002. I presented a large envelope to Jan Hamilton and asked for a receipt. She presented it to Sheriff Lee Adams on October 25, 2002. Sheriff Lee Adams released it to Sherri Johnson, who signed for it. Note that Sharon O’Sullivan is not involved in this transfer. Grand Jury Foreperson, Kathryn Kelly and defendant Anthony Patachett acknowledged receiving the envelope on October 28, 2002.
See Exhibit 3-O

P. I obtained the declaration of Gerald R. Fulghum, OSHA supervisor responsible for reviewing the inspector’s investigation of the accident. On page 3 he declares: “In accordance with the Director’s Regulations and the Policy and Procedure of the Division of Occupational Safety and Health, a pre-issuance evidentiary review and a determination whether a violation is “Willful” was conducted by myself and Mr. Hurley. On the basis of our review, it was determined that the facts surrounding the violation that were alleged did not meet the threshold of a willful failure to comply with the law, nor did any evidence support a finding that a willful failure to abate a hazard that presents a risk of injury to employees existed.” Exhibit 3-P

4. On August 14, 2002, I visited the CDAA office in Sacramento and had a conversation with defendant Kyle Hedum, who signed my indictment. Attached to this declaration are Mister Hedum’s notes from the meeting, which are in the Sierra County District Attorney files. It was clear to me that he and CDAA were running the show, not Sharon O’Sullivan. This meeting is evidence that I was actively pursuing an investigation of the circumstances of being indicted for a crime. I told Hedum that he had committed an illegal act, perjury, which is causing me damages. I knew this to be true because I had been investigating the entire CDAA program and came to the conclusion that this pact of usurpers broke many of the laws that I treasure. The fourth paragraph (page one) confirms my investigation by seeking the contract that established CDAA to prosecute in Sierra County as does paragraph four on page two regarding my conversation with Judge Johnson of Yolo County. Exhibit Four

5. I realized that the District Attorney had disassociated herself with the CDAA lawyers. I was very familiar with the contract between CDAA and the State of California, which provided the money to prosecute in rural counties. The conditions of the grant are specific. I was left with no recourse except to file a grievance with the Sierra County Grand Jury, which I did. My purpose was to force the Sierra county District Attorney to respond to the negligent and irresponsible prosecution by CDAA against Jonathan and me. Note: Original Sixteen to One Mine, Inc was not yet indicted and was not a defendant. Throughout my activism are several important positions that also pertain to the case before the court.

6. After a court appearance one afternoon, Jonathan Farrell and I met Sharon O’Sullivan on the courthouse steps. (She was never in the courtroom during any of our court appearances so it was a fortuitous meeting.) Sharon, Jonathan and I had a long conversation. Co-incidentally, we were talking when Judge Stanley Young, who presided in court that day, walked down the steps to the parking lot. We all exchanged brief “hellos”. Sharon had a lot to say to us about CDAA. She insisted that the case is completely with CDAA lawyers and wished us luck. She even apologized, or so I took her statements to mean. I told Sharon that I understood the high degree of complexities of the garbage dropped into Sierra County, but it and every smell of it had to go.

The administrative law for MSHA and all California Criminal and Civil rules of evidence would be needed to fight the reckless accusations and even more reckless conclusions if the sterling reputation of Original Sixteen to One Mine were to be maintained. On my watch the company was accused of malfeasances.

The problems I had in defending the company and myself resulted in the blatant disregard of defendants from investigating and representing to the Court and Grand Jury the rules associated with mining and safety laws with qualified experts, who would qualify as an expert witness in their field. Therefore, I remained representing myself during the early stages of the prosecution. This information was readily available to defendants. The defendants sent me 1000 pages of discovery, mostly from MSHA, so I know they had the information. I was not sure who or how their employer was supervising the defendants. I knew the case reached CDAA headquarters and reached Larry Brown. When I examined the Sierra County files, I found a thick binder with a printed copy of the Original Sixteen to One Mine, Inc. web site. There are ample facts presented on the web site to expect any investigator to find, interpret and present exculpatory evidence to the Grand Jury. This was not done. The following is a Summary of the Mine, its operation and the events leading up to and including November 6, 2000 as can be found using the web site.

Summary of the Mine

The Sixteen to One mine is a traditional underground gold mine. There are over twenty-seven (27) miles of levels (tunnels) that are about five feet wide and seven feet tall (5x7). The levels are numbered from zero to three thousand (0 to 3000) and about one hundred fifty feet (150) apart. They dip into the earth between thirty (30) and sixty (60) degrees. In favorable locations along the vein and from the levels, miners will drive a raise upward along the dip of the vein. When gold is encountered, miners will drill, blast and muck the vein, which opens up an underground room called a stope. The miners use track instead of diesel equipment to move themselves and material throughout the mine.

At the time of Mark’s accident, there were fourteen miners working at the mine. Two crews were mining for gold. Some miners were working outside to support the underground operation. Some miners were working underground to maintain the integrity of the workings. Mark was working on the 1700-foot level with another miner. It was their job to rehabilitate this level to make it safe for mining. There is a distinction between Mark and the other miners according to health and safety law. Mark and his partner were not mining the area. They were to prepare the area for later mining. Miners cannot begin working an area until such care was given to make it a safe workplace.

Over the prior two weeks, they had been removing rubble, repairing trammer track and removing any hazards as they encountered them. By the day of the accident they had repaired about a half-mile of the 1700-foot level. It was at this point that they encountered the protruding ore chute. For some reason Mark drove under it and got off the trammer. He got back on and put it in gear without looking ahead. According to the autopsy report, his head and upper torso were jammed with a lot of power and in a small space. The doctor wrote that this trauma caused his death. His job was to prepare the 1700-foot level going south for eventual mining by miners looking for gold.

It is important to understand how Mark got to the exact location of his tragic accident on November 6, 2000. He entered the portal where all the miners begin their underground journey into the mine. It is on the 8oo foot level. It is about a quarter mile walk to reach the 49 Winze. A winze is similar to a shaft, but it does not reach the surface. It connects various levels. The 49 Winze had been the main travel way for all miners to reach their heading. There is a hoist that raises and lowers men and material. A skip sits on rail that goes from the 600-level to the 2400 level. A hoist operator sits at the controls and runs the transport service using phones and bells to monitor the traffic. This hoist at the Sixteen to One mine has been in continuous operation since 1986. It is the only Cal OSHA approved operating man-hoist in California.

Each level has a station, where miners board and disembark from the skip. The skip is like a box that has wheels and glides along the track. Mark began his project at the 1700 station. He brought down supplies and tools to begin his work about two weeks before the accident. The 1700-foot level had not been an active mining area for many years. It was part of a secondary escape way for miners to walk out of the mine in case of an emergency and their normal route was blocked. His job was to clear and repair the track, take care of ground support and remove any hazards. When he encountered obstacles, he fixed the problem. There were no hazards, safety violations or citations issued by any regulatory agency for any conditions between the winze station and the protruding chute. (Defendants purposely misdirected its witnesses in the Grand Jury to say otherwise). Mark was well qualified to do this work and had all the required training and experience. The day of the accident was the first time he was able to reach the chute that protruded over the track. There are six or seven chutes along the 1700 level between the station as well as the one he ran into. None of the chutes were marked because none of them protruded into the level, causing an obstruction or hazard to miners

Mark arrived late on November 6. He had some personal issues on his mind, which he told his long time friend and boss, Jonathan Farrell. When Mark arrived underground and left the station, he headed south on the 1700 level driving the trammer and flat car. He reached a spot where he could drive no further because rock and debris were deposited on the track. For unknown reasons he also had driven the trammer under a protruding chute and parked it. To do this, he had to duck and squeeze under the chute, a very dangerous and unnecessary thing to do.

Mark had explicit instructions on what to do. He had the tools, a qualified helper and the knowledge to eliminate all the obstacles and hazards, including the protruding wooden chute. He had a new electric chain saw, and it would have taken only a few minutes to cut the wooden overhang. This accident should never have happened. Mark got ahead of himself. He decided to get a piece of lumber to secure a piece of equipment in the stope, which was to become the focus of the area when miners would later begin the process of mining. He sat down on the seat of the trammer, which he had just driven under the chute minutes before. He lit a cigarette. He asked his partner if he wanted a ride. He energized the trammer when looking forward (instead of the direction he wanted to travel) and backed the trammer into the wooden overhang. The trammer is a very powerful machine, a locomotive capable of pulling ten tons or more of weight. Mark wedged his head and upper body between the locomotive and the wooden chute. There was no place to go. The electric energy powered the trammer until a resister designed to unload or break the continuity of the electrical power did what it was supposed to do. The trammer stopped moving. Mark died almost instantaneously.

Both federal and state regulators inspect mines throughout California. MSHA (federal) has been inspecting the Sixteen to One mine since 1977. Inspectors arrive unannounced at least four times per year. During twenty-three years of inspections, the mine was never cited for operating a trammer with a gear out. The same is true for CAL/OSHA inspectors. The mine operates eight trammers depending on the size of its crew. Agencies alleged that a regulation was violated after Mark’s accident for operating a trammer with a defective gear. There is no evidence to support a contention that the gear was not operating before the accident. The gear was defective because the resister, which supplied power to first gear, burnt out and disconnected the flow of electricity. They did not have a full report of the examination of the equipment prior to issuing the citations. There is evidence that the trammer was not broken prior to the overloaded electrical system resulting from the accident. MSHA and the OSHA inspectors checked the other two trammers working underground the day of their inspection and found them to be in perfect operation. This is exculpatory evidence, which should have been told to the grand jury.

I understand the story of the Sixteen to One mine, and what happened on November 6, 2000. When the grand jury was not given a factually balanced case, it was misled. I am outraged that government employees and others have alleged a story that has led to the position that exists today.

7. I answered a set of questions sent to me by defendants. It was signed by Michael M. Miller as President of the Original Sixteen to One Mine, Inc. with a certificate of service to Knox et al. It speaks for itself but may not hold a reader’s interest. I signed that document on September 20, 2004, and stand by those facts, which I state again today on March 23, 2005. Exhibit Seven

8. The report referred to as the Patterson Report, N1110-074-00 Report dated October 1, 2001, or the Department of Industrial Relations Report has been stated by defendants as key evidence for indicting plaintiffs. Michael M. Miller is not listed under the heading, SUSPECTS. I early on, after learning about the charge against Jonathan Farrell and myself, sought data. I got the Patterson Report. I also saw a copy of it in the Sierra County files that I recently examined. Exhibit Eight

9. In the box of Sierra County files, I found and copied a document identified as Case No: CR 00632, TRIAL BRIEF. On page 4 lines 24 and to the end there are conflictions with other writings in the file; one is the memo from one defendant to another where she tells her mentor that the conditions required for a criminal prosecution failed to support an indictment of both defendants. Exhibit Nine

10. I received a letter stating my rights to present exculpatory information to the Sierra County Grand Jury. I presented a large package as directed in the letter. In addition to that exculpatory evidence, I found these other documents known to the defendants and in the Sierra County District Attorney file, which I will testify as passing the smell test as exculpatory. Exhibit Ten
A. Four hand written pages on Cal/OSHA form paper;
B. Chain of custody of Exculpatory evidence presented to Grand jury;
C. Letter from OSH Legal unit;
D. Letter from U.S. Department of Labor dated December 13,2001;
E. Letter on California District Attorneys Association soliciting money from Cal/OSHA and Department of Industrial Relations;
F. Letter from defendants to Office of the Solicitor on July 16, 2002
G. Reprint from Original Sixteen to One Mine, Inc. web site
H. Letter from CDAA with e-mail from Warren Crandall;
I. Letter to Larry Allen from Denise Mejlszenkier dated January 27, 2003;
J. Letter from Larry Allen to Gale Filter on January 30, 2003;
K. CDAA broadcasts LA Times article on March 03, 2003. Read the bottom of page 2. Filter continues his mantra against plaintiffs;
L. Memorandum to Gale Filter from Denise Mejlszenkier dated August 8, 2002;
M. Inter office Memo to Clerk of the Court from Sherri Johnson June 11, 2002;
N. CDAA internal letter dated October 22,2002;
O. Two unidentified hand written pages.

11. I have in my possession the transcript of the Sierra County Grand Jury and have read and reread it and include the following pages;
Sierra County Grand Jury transcript, pages 290, 291 and certification by court reporter. Exhibit 11.
1. Defendant Filter asks Judge to set bail. (Page 290, lines 27 and 28).
2. Defendant Filter asks for arrest warrants. (Page 291, lines 3 and 4).
3. Defendant Filter orders the Court to “Put that corporation in jail, too” and the Court asks, how to do this? (Page 291, lines 7-8).
4. Defendant Filter acknowledges that Sherri, who is the secretary, “knows how to prepare them”. And he goes on to say, “I’ll tell her and then I’ll tell her to confer with you.” He further says that either he or “one of my other circuit prosecutors will be up here, at least for the arraignment.” Transcript page 291 lines 11 to 24.
It is clear in this very important event (a Grand Jury indictment) that District Attorney Sharon O’Sullivan is nowhere involved in the process. If such a chummy relationship existed between the Defendants (according to their declarations) and the D.A., it is reasonable to think that she would be involved in the Grand Jury or at least she would be the one referred to by Defendant Filter to oversee the important process of preparing arrest warrants. Her absence or even mention throughout the prosecution by Defendants is strong evidence that CDAA took control of the Sierra County District Attorney office.

12. I have reviewed the Sierra County files of plaintiffs’ prosecution specifically to find correspondences between Sharon O’Sullivan. I found no correspondences from O’Sullivan to the defendants.

13. Defendants used the media to illegally exploit my position as President by using the press to “poison” the Southern California money pool. Exhibit Thirteen;

14. Citations issued by MSHA and Cal/OSHA relevant to indictments. The citations are exculpatory. Each one is an allegation and not a fact of wrong doing until it proceeds through the administrative process. Each citation has a category alleging the degree of negligence. The citations were marked general or serious. Both agencies have the method and means to allege willful. Both agencies are empowered to serve criminal indictments when they determine through their investigation that criminal behavior exists. Neither agency exercised these options. The citations are exculpatory. Exhibit Fourteen

15. My employer, Original Sixteen to One Mine, Inc. suffered serious damage by losing the interest of its dedicated mine manager after being accused as killing his friend willfully.

16. My employer has suffered because I was forced to focus on the prosecution of two of its three managers and supervisors every day since learning of the prosecution until today.

17. I found no documents in the Sierra County files identifying that the defendants had consulted an expert in mining law.

18. I have seen no documents filed in Sierra County signed by Sharon O’Sullivan (Except July 18, 2002 to me) dealing with the prosecuting of defendants. I have seen no documents requesting a “cc” or return address to Sharon O’Sullivan with regard to my prosecution. On the contrary, there are numerous documents signed by defendants, some of which include Sharon O’Sullivan’s typed name.

19. I learned about the pending felony criminal complaint in June 2002. By legal federal requirement, I was required to conduct an investigation of the accident (beginning November 6, 2000), which I did. My conclusion was that the root cause of the accident was human error. Criminal exposure makes no sense to me for many and diverse reasons. In my capacity as President, I began another investigation into the charges of Section 6425 (a) of the California Labor Code of willfully violating a safety standard against mine manager Jonathan Farrell and myself. I researched prior indictments in Yolo and Butte counties. There was no evidence to support probable cause in these cases. Defendants have filed papers to the court representing my state of mind, which do not reflect the condition of my interactions with Sharon O’Sullivan. I hereby controvert all of their representations about my intentions and state of mind. I have contacted the State Bar in order to communicate with Sharon O’Sullivan. She has become an “inactive” member and is unreachable either by telephone or mail.

20.Included in the grand jury transcript are misrepresentations and omission of witness testimonies. Defendants encouraged unclear testimony from their witnesses. They also presented as evidence stories, facts and statements that would not be permitted as evidence in a criminal trial.

21. Mr. Knox’s clients were not district attorneys.
· Their behavior was not that of a 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 is a non-government corporation, which lobbied for and received a specific contract from the Department of Industrial Relations against their charter.
· That contract clearly spells out that CDAA are private parties, contractors and that the government is held harmless from their activities.
· That their behavior was not that of a real district attorney, when they created charges against plaintiffs and they likely needed to do this because their previous cases were falling apart and they needed to have some successes to renew the contract and get more money for themselves.
· To do this they broke the law. They withheld exculpatory evidence knowingly and willfully. They incited the grand jury to issue an arrest warrant for murder. Gale Filter prosecuted plaintiffs in his closing testimony and failed again to present a fair and balanced case to the grand jury. Additional laws they broke are included in the Motion to Set Aside, approved on February 13, 2003. Exhibit 21.
· They violated their oath as an Officer of the Court, broke the statutes and codified rules of the California State Bar and in this very courtroom, lied to and purposely misled the Judge.
·
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on March 23, 2005, at Alleghany, California.

Michael M. Miller
President
Original Sixteen to One Mine, Inc.
 By CONFUSED

03/09/2005  7:54PM

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.
 By Michael Miller

03/08/2005  8:44PM

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.
 By Michael Miller

01/26/2005  9:45PM

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
Persona
 By Michael Miller

12/11/2004  10:13PM

The 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. Wozencraft
 By Michael Miller

10/30/2004  9:18PM

To 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!
 By Michael Miller

10/23/2004  9:30PM

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.
 By Michael Miller

10/08/2004  8:51PM

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, Ca

To 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
 By SCOOP

06/24/2004  3:26PM

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: 1

The 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.
 By SCOOP

06/23/2004  9:23AM

THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
BEFORE THE GRAND JURY OF THE COUNTY OF SIERRA

THE 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 Attorney

DENISE MEJLSZENKIER
Deputy District Attorney

ANTHONY PATCHETT
Deputy District Attorney

Judy 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?

JUROR: Here?

THE COURT: Yes. Wherever you're comfortable.

JUROR: This is fine.

MR. FILTER: Judge, we can bring everybody back up at ten o'clock like you said, and then I think you can read the charges and then make the announcement.

THE COURT: Yes.

MR. FILTER: If that's okay with you.

THE COURT: I think that's an excellent idea. I think that's the right way to go.

(Whereupon a brief recess was held.)

THE COURT: I've been presented with the indictment. The grand jurors should be coming in. All right. Ms. Leontini, Ms. McDonald are present, and we find you both highly qualified to sit as grand jurors. And we did have our drawing, we did set aside the state law against gambling. Our good clerk drew the name Ms. McDonald. Now, the jurors, the other grand jurors have not heard the charges, as a matter of fact I haven't myself heard them. They're in front of me right now, but it may be when they are read one of the grand jurors, I hope a maximum of one, would tell us that they are familiar with the case and should not appropriately sit, which would mean we would need Ms. Leontini also. So, if we could retain your presence Ms. Leontini until we have gone through that process. Now, if Ms. Leontini is not needed because none of our other grand jurors need be excused, would it be appropriate to keep her in here while we read the charges?

MR. FILTER: I think so, yes.

THE COURT: All right. But the admonition certainly would apply if you should be excused, Ms. Leontini. You certainly understand that it's -- just tell everybody who wants to know what goes on in here we have the crabbiest judge you've ever seen, I'm scared to death of the old goat, and I don't dare tell a word. I mean, you know, whatever is necessary. But it's absolutely essential, for many practical reasons, that what's said in here remain here. Our jurors should be coming in now. Our grand jurors have returned from their break. I'm now going to read you, ladies and gentlemen, the charges for which evidence will be presented to the grand jurors, and I'm going to read it from the proposed indictment. There are two counts. The first count alleges that on or about November 6th of the year 2000 in the above-name judicial district, that is the County of Sierra, the crime of involuntary manslaughter, in violation of Penal Code Section 192(b), a felony, was committed by Michael Meister Miller, and Jonathan Todd Farrell, and the Original Sixteen to One Mine, Incorporated, a corporation, who did unlawfully and without malice kill Mark Raymond Fussell, a human being, in the commission of an unlawful act, not amounting to a felony, and without due caution and circumspection. Count Two. That on or about November 6th of the year 2000, in the above-named judicial district, the crime of willful violation of occupational safety or health standard causing death in violation of California Labor Code Section 6425(a), a felony, was committed by Michael Meister Miller and Jonathan Todd Farrell, and the Original Sixteen to One Mine, Incorporated, a corporation, who acting as the employer, and as an employee having direction, management, control and custody of any employment, place of employment, or of any other employee, willfully violated an occupational safety or health standard, to wit, Title 8, California Code of Regulations Section 7010(e)(9-60), a requirement that where overhead clearance is restricted warning devices shall be installed, and the restricted area shall be conspicuously marked, and that violation caused the death of an employee, Mark Raymond Fussell. Now, those are the two charges pending against the named defendants. And I think we might do this at this time; I think it would be helpful to you to be sitting as close as appropriate, as appropriately as possible, to take the seats of the petty jurors, because this will bring you closer to the witness who will be -- witnesses who will be testifying.

MR. FILTER: I'm sorry, Your Honor, what we're going to do in this grand jury is we're not going to use that jury box, we're going to allow them to sit around the table as they normally sit. That's my understanding is they use this table, and I don't want to alter what their working arrangement is.

THE COURT: I appreciate that, Mr. Filter, thank you.

MR. FILTER: That will sort of be our work area up there.

THE COURT: I think bringing you together is a good idea, and it gives you the feeling of unity. And if this is your custom that's what we're going to do; okay? Why don't you arrange yourselves. I've read the indictment, proposed indictment to you, that is the charges proposed against the three defendants, Michael Meister Miller, Jonathan Todd Farrell, and the corporation Original Sixteen to One Mine, Incorporated. I think what we might do is ask Mr. Filter if you would like to ask any of our prospective members of our grand jury if they have any feelings, any knowledge about the matter that would make it inappropriate for them for any reason to sit as grand jurors in this matter. So, Mr. Filter, why don't you proceed.

MR. FILTER: Good morning, ladies and gentlemen. This is really going to be rather short, because that's all that is really requested to ask of you is that given what the charges have been, what little you know about this case, is whether you have developed any prejudice or bias that would disqualify you as being a witness. Or to put it another way, can you be a fair and impartial juror for the purposes of this proceeding and listen to the evidence that's presented to you, and at the end of the presentation of the evidence reach a verdict without any bias or prejudice coming into play? Is there any of you feel that you can't do that with what you've heard so far? The last thing that I'd ask of you, in the Mountain Messenger, when I came in this morning I stopped for a cup of coffee, which generally is the place I always stop where I hear the news, or get the news about what's happening in Sierra County. And there's a story on the front page of the Mountain Messenger. How many of you read that story? Given the story that you read, would that have any impact of you or your ability of listen to what the facts are in this case? Do any of you feel that you're uncomfortable sitting and hearing the evidence? I'm fine with this jury, Judge.

THE COURT: All right. Now, for those of you that read that story in the Mountain Messenger, I might point out to you that I worked years ago as a reporter in a newspaper, small town. My experience is the information that's published in a newspaper is all what we call hearsay. The fellow that writes, or gal who writes any story gets information from all sorts of sources; he or she does not personally know what happened. And I'm here to tell you as a former trial lawyer, and many years as a trial judge, that hearsay information is unreliable because you do not see the person giving the information to you, you cannot read their voice, their body language, the way they respond. You cannot cross examine them. You cannot ask the newspaper where you got the information, Mr. Newspaper; can't ask them that question. And without drawing any bad references against the press, we all know that information that is published sometimes we find to be completely and totally wrong because someone who reported the information misunderstood, they were under terrible pressure when they got the information, they had seen an accident, a shooting, whatever it is. We know that eye witness identification, as an example, is questionable. And we can't ask the person where were you when you saw it? How many drinks had you had before you saw it or heard it? Do you know the person who gave you the information? What is your relationship to that person? Can't ask them that. Newspaper information is not reliable in this kind of proceeding. So if you have read that story please keep that in mind. The person who wrote that story was a human being. That human being was telling you what he or she thought. What the sources of that person's information is are not sufficiently reliable for this serious kind of a proceeding. Any questions about that? Very well. Mr. Filter, do you wish to proceed?

MR. FILTER: I think we're ready to proceed.

THE CLERK: Our alternate.

THE COURT: Also, Ms. Leontini, we're not going to require her presence. It wouldn't be like a civil matter in petty jury, so I guess we have no choice but to excuse her; am I correct?

MS. LEONTINI: I'm four miles down the road if you need me.

THE COURT: We have your phone number?

MS. LEONTINI: Yes.

THE COURT: Okay. I want to thank you, Ms. Leontini.

MS. LEONTINI: You're very welcome.

THE COURT: It's a pleasure to chat with you. All right.

MR. FILTER: We're ready, Judge.

THE COURT: We must swear our alternate juror, Ms. McDonald.

THE CLERK: Please stand and raise your right hand.

(Alternate juror sworn.)

THE CLERK: Thank you. You may be seated.

THE COURT: Anything further?

Mr. FILTER: No, I think that's it for you, Judge. I really appreciate everything that you've done.

THE COURT: All right. And as I understand it you will be presenting evidence in my absence.

MR. FILTER: Yes, correct.

THE COURT: That's customary. That is the law in These presentations. I will be available to give any kind of assistance I can. I got through law school pouring coffee, I suppose I could assist in that. But seriously, I've become sensitive to juries over the years. I'm a jury worshiper, frankly. One of our -- well, Blackstone, the great English writer of laws which influenced our present laws for years, and also Alexander Hamilton, the Federalist, said the jury is -- what did he call it, the palladium of our liberties. The palladium used to be a dance hall in Hollywood with Benny Goodman or somebody like that. Seriously, the palladium is in the Iliad. Very important as a statute in the City of Troy. The Trojans knew that if as long as the palladium was in Troy their city would be safe. So Ulysses, the fellow that wrote the Odyssey, or did the Odyssey, later on he was sort of a joker, and as I said, snuck into Troy one night with a friend and stole the palladium and Troy fell. So that's what Blackstone, and that's what Hamilton were telling us about the jury. When the jury disappears, that's our palladium, and that will be it. So you're here to see that doesn't happen; okay? God bless you. I'll be around in case you need coffee. (laughter)

MR. FILTER: Let me give a couple things I need to go through with you. First, what I need to discuss with you is let me explain what it is that's going to happen in the next day and a half. We believe that all of the evidence in this case will be presented to you by early afternoon tomorrow. We started a little late this morning but I think you will find that we're very efficient and we get to it. We don't lallygag, and I think you'll be pleased the way we present evidence in terms of how we get through it. So we ask, you know, if you have any questions or concerns -- let me tell you something that the Judge said that we have found to be very effective is if you have a question of a witness that is on the stand, what I would recommend that you do is that you put the question down on a piece of paper. We gave you notebooks, the spiral notebooks are inside your grand juror book, and just tear out the piece of paper, give it to the foreman, and this is what Mr. Patchett is here for, as the Judge told you. Mr. Patchett had a distinguished career in the L.A. District Attorney's Office, is an expert in evidence, and that's one of the things that we do is to make sure that nothing comes in that shouldn't. So that's his reason for being here. The other thing that I want to make sure that you go through, what you will see is for an old guy I'm somewhat high tech, but you will see evidence in three forms. You will see it up here. Because your books aren't all that clear, you will see an exhibit that comes in, and will be marked by whoever has been designated the secretary, which I will slow down and help the person who is the secretary how to mark it, and he'll do a great job, trust me. And also you will see evidence that is in your books. And if you turn to your grand jury book I just want to make sure that at the very least there should be no numbers, and what I want to take you through right now, so we're all on the same page, so it will be easy for you to reference, is take a pen, and as I'm going through this you mark down on each of these pages the numbers that I give to you. The first one, can you see in the back this photo? Just put 1 at the bottom here. Just 1. It will help you. The second photo put 2 at the bottom. Does everybody have that? This one is -- this mining hat is obviously not a picture, you will see the physical evidence of this, so just put 3 here. You'll be able to follow what numbers we're talking about. The next exhibit that you need to mark is again a photograph of a person, that's number 4. There is a -- next is a picture of a person sitting on a side of what looks like a small train, that will be 6; is that right?

FOREPERSON: 5.

MR. FILTER: 5. I'm sorry, 5. The next exhibit, tell me if I'm going too fast, the next, Exhibit 6, there's two photographs, black and white. And again, they look to be of a train. You don't have to mark the photographs, just the page. That's 6. The next page, mark that 7. Next page 8. Next page will be another physical exhibit, but you just put down 9, because then you'll know it's going to be a mining map. The next exhibit should be a man standing up, looks like a fireman's suit, that should be 10. The next one, which should be 11, is low head room. That's 11. That says "low head room". And then there should be, 12 should be a page that says "map inset". So far so good? Next page is two photographs of a person in mining outfit, that should be 13. Next page, again two photographs of a person in mining gear, that should be 14. Next page is two photographs which should be, looks like a wood structure of some kind. This one.

JUROR: That's 15?

MR. FILTER: Yes. Next page is 16. There's two photos. The photo at the top is a miner, and then the bottom, this one. Do you have that? Whatever it is. The next page is a diagram of a skull, 17. Next page is a diagram with a face in the right-hand corner, that should be 18. Next page is an overview of what appears to be a skull, and that should be 19. Next page is four views of what appears to be a brain; that's 20. 21 is -- it says County of Sierra, Downieville, California, Certificate of Death, that should be 21. 22 appears to be a cart with -- on the side it says "16 to 1". Next page is a single photograph of an object with a handle on it, and that should be 23. Next page is 24, Exhibit 24, again two photographs. And you can see the numbers on the photographs in the bottom right-hand corner, the photograph says 0011 on each of those and appears to be an object in the middle of each of those photographs. And then finally, I believe this should be 25, the last page, is a letter dated March 13th, 2001 to Mike Miller from Robert Walker. And those are the -- those are many of the 25 exhibits that you will see. There will be some others if they're all marked. You will find that as we're presenting them up there and we're moving them in evidence it will be a lot easier for follow-up. Denise is going to do the opening on this, but before I get there I want to just go over a couple of jury instructions for you. It sort of sets up what it is that you can anticipate to hear toward the end of the case when the evidence is given to you to deliberate on.

JUROR: Sir? Could you just quickly go back through the head ones?

MR. FILTER: Sure. Thank you.

JUROR: Could you hold them up?

MR. FILTER: Yeah.

FOREPERSON: 17 is this first one, with the side views.

JUROR: Okay.

FOREPERSON: 18 is the front and back view.

JUROR: Okay.

FOREPERSON: And 19 is the top view.

MR. FILTER: There should also be --

FOREPERSON: And then 20 is the brain.

JUROR: Okay, thank you.

JUROR: Do you have anymore of the pages marked "map inset"?

MR. FILTER: We have a blank piece of paper, does that work for you?

JUROR: Mine was in good order.

MR. FILTER: Okay. Let me read these instructions to you. Ms. Reporter, if I'm going too fast just hold up your hand and you scream. These are preliminary instructions. It sort of gives you an outline of what is expected of you during the course of hearing, and also certain responsibilities that you have. One or two of these has been stated by the Judge already, but I just want to emphasize to you the importance of following these particular instructions. 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 the instructions, all the grand jury instructions, relating to this case to take with you when you deliberate at the end of the case. You must base your decisions 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 it is stated to you regardless of whether you agree with the law. If anything concerning the law said by the prosecutors in their statement, 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 prejudiced against him or her. You must not be biased against the persons who are targets of this proceeding because he or she is the subject of this hearing. None of these circumstances is evidence that there is probable cause to indict, and you must not infer or assume from any or all of them that he or she is most likely -- I'm sorry, 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 prosecutor and the persons who are 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 -- I'm going to tell you some of you will ask a question, and it will be given to Mr. Patchett, and Mr. Patchett will say you can't ask the question, and that's because there is -- that doesn't fly on evidentiary rules and he cannot allow that question to be asked because it would taint the proceeding. 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 light of all the others. The order in which the instructions are given has no significance as to their relative importance. Statements of counsel. Statements made or documents prepared or presented by the prosecutors during the hearing, other than those received into evidence, are not evidence. So we have just gone through exhibits, but please understand that those exhibits are not evidence until they have been accepted and gone through the procedure that is prerequisite to moving them into evidence. Do not assume to be true any insinuation suggested by a question asked a witness. A question is not evidence and may be considered only as it helps 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. Jurors are forbidden to make any independent investigation. 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 independently investigate 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 stop -- 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 other 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. And you recall the Judge asked me that. I think this instruction specifically tells you when discussions can be heard. I should also advise you that, you know, I don't know what the newspapers are, I don't know what the television stations are. This is supposed to be a closed hearing. For that reason if you haven't read that newspaper article, don't read it until afterwards. Be honest with you, I looked at the headlines and that's about it. And what happens is, as the Judge said, there's no evidentiary basis in there and you don't want to be put in a position where somebody says that you were influenced because of something that you read. A juror's use of notes. In the back of this book, these are yours, and I would recommend that you put your name in them, just at the top someplace so you know that they're there. What will happen is at the end of this proceeding everything is collected, everything is put into a bag. Everything. You don't get your books back, and somewhere down the line a court official will go through and take out all the notes, and they will put them into a bag, and in the event some issue comes up on appeal, or whatever the case may be, or the Judge has a concern, whatever, we make a total record of everything that takes place in here. 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. A word of caution: You may take notes; however, you should not permit note-taking to distract you from the ongoing proceedings. And that's one of the reasons we put these exhibits here in your book is that you may write a note on it. You do whatever you want to with these books, except take them home. 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 does not take notes -- I'm sorry. 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 the 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 the 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. So at some point in time towards the end of this, you're sitting, you have a question, and say I remember the question being asked, and you all look at one another, but what was the answer? She'll be here and then she can come in and read back the testimony to you. Finally, reception of evidence by a grand jury. The grand jury shall receive no other evidence than such as is: one, given by witnesses produced and sworn by the grand jury; furnished by writings, material objects or other things presented to the senses; or contained in a deposition that is admissible by law. The grand jury shall receive none but evidence that would be admissible over objection in the trial of a criminal action. And again, that's why Mr. Patchett is here is that he's going to make sure that whatever evidence comes in before you that there's a legal basis for doing that. With that I'm going to turn it over to Ms. Mejlszenkier. She's going to give you a brief opening statement and then we'll call the first witness. Let me ask a couple of quick questions. We want to -- again, we want to work with you. I know you have families, other tasks you have to do besides attend a grand jury. Our plan today was we have some witnesses that we have to call. For example, you'll hear the pathologist speak this afternoon, or testify. And I guess the question then becomes, what is a good time for lunch for you? I don't know what your working hours are.

JUROR: Whatever flips your skirt.

MR. FILTER: Okay. Well, an hour? I mean you want to try -- you guys want to take one hour? Is that too little, too late?

FOREPERSON: That's fine. Sir, I think it would be a good idea to go at either 11:30 or 12:30, before the big rush.

MR. FILTER: That's fine. Would it be okay to go to 12:30 so we can get some of this stuff out of the way for you? Okay.

FOREPERSON: It's just that we have -- I hope we have the idea across that maybe going to a sit-down restaurant may not be the best idea, rather than a sandwich or something from the two stores, the gas station and the market.

MR. FILTER: I think that's something that you should -- again, you know, we have to apologize, Tony, Denise and myself, we're not familiar with Downieville, the places to go or whatever. But again, you're not supposed to talk about it, and if anybody ever approaches you, say, you know, I'm not free to discuss anything.

JUROR: I don't think that's what she meant. It's just time consuming.

FOREPERSON: Because the restaurants get crowded at lunch time here.

MR. FILTER: Is the 12:30 good?

JUROR: That's when everybody gets there, and they all come in at one time, and you're standing there with your -

MR. FILTER: No problem. We have to get two of these witnesses done this afternoon. The court reporter said that she would be available to make sure we get through those witnesses and the evidence. It's all going to be over by tomorrow afternoon. But we need to finish up those witnesses today. I ask that you tolerate going into maybe 5:00, 5:30 if that would be okay with you. Sir?

JUROR: If we are approached by somebody on our lunch break today, tomorrow, the next day, should we notify you that we have been approached?

MR. FILTER: Yes, you should. And what happens is that it really should be done with the grand jury foreman, the court reporter and myself so it can be put on the record.

JUROR: Okay.

MR. FILTER: Generally my experience has been that if you say no everybody understands that. It's pretty easy. I just can't discuss it, and you're pretty good on that.

FOREPERSON: I have one more question. Am I in fact supposed to read this foreperson statement, or have we heard the contents and can sort of specify that we agreed to it?

MR. FILTER: We're going to -- before we get to Denise I'm going to ask that you go through this; okay?

FOREPERSON: Fine.

MR. FILTER: Go ahead. Wait. Before you do, do we have any other questions? Okay. Go ahead.

FOREPERSON: Okay. I guess I do get to read this. The matter to be presented today involves as possible defendants Michael Meister Miller, Jonathan Todd Farrell, and Original Sixteen to One Mine, Incorporated, and the possible charges: Count One, involuntary manslaughter, Penal Code Section 192(b). On or about November 6th, 2000, in the County of Sierra, the crime of involuntary manslaughter, in violation of Penal Code Section 192(b), was committed by Michael Meister Miller, Jonathan Todd Farrell, Original Sixteen to One Mine, Incorporated, who did unlawfully and without malice kill Mark Raymond Fussell, a human being, in the commission of an unlawful act, not amounting to a felony, and in the commission of a lawful act which might have produced death in an unlawful manner, and without due caution and circumspection. Count Two. Willful violation of occupational safety standard causing death, Labor Code Section 6425. On or about November 6, 2000, in the County of Sierra, Michael Meister Miller, Jonathan Todd Farrell, Original Sixteen to One Mine, Incorporated, while acting as the employer or employee having direction, management, control or custody of any employment, place of employment, or of any other employee, did willfully violate an occupational safety or health standard, to wit, Title 8, California Code of Regulations Section 7010(e)(9-60), requirement that where overhead clearance is restricted warning devices shall be installed and the restricted area shall be conspicuously marked, where that violation caused the death of an employee, Mark Raymond Fussell, in violation of Labor Code Section 6425(a), all three defendants. The witnesses shall be: Vincent Kautz, James Weisbeck, Bruce Allard, John Pereza, Dr. Gregory Reiber, Stephen Cain and Edward Tim Hurly. Any member of the grand jury who has a state of mind in reference to this case, or to any of the parties involved, which will prevent him or her from acting impartially and without prejudice to the substantial rights of the parties shall now retire. Let the record indicate that none of the jurors have withdrawn.

(Roll of the grand jurors was taken)

MS. MEJLSZENKIER: Ladies and gentlemen, this proceeding is about one thing. This is what this proceeding is about. This proceeding is about a hardworking member of this community, a miner in Alleghany, who went to work one day and never made it back. Going to work shouldn't be like playing Russian roulette. There are laws and regulations in place that are intended to protect employees in their place of work, but those regulations are meaningless if they're not complied with. The evidence in this case will be persuasive, it will be compelling, that what happened to Mark Fussell on November 6th, 2000 was not an accident, it was not bad timing, or being in the wrong place at the wrong time, it was not even a momentary lack of attention. What happened to Mark Fussell on November 6th, 2000 will be shown to be, through the evidence and testimony presented, the result of the gross negligence on the part of his employers and supervisors. And if one were to call what happened to Mark Fussell on November 6th, 2000 an accident at all, then it was not only an accident that was waiting to happen, it was an accident that was made to happen. The evidence in this case will show that when Mark Fussell went to work on November 6th, 2000 he was assigned to work on the 1700 level of the mine. The evidence will show that there was a chute in that area of the mine that ran over the center line of the rail track. The evidence will show that Mark Fussell was supposed to be operating a locomotive that day in order to transport some timbers to set up some equipment. The evidence will show, as does this diagram, that the chute was so low that Mark Fussell could not have passed that chute without doubling over completely. The evidence will show that the defendant, that the targets of this investigation, Michael Miller, the president of the mine and CEO of Original Sixteen to One Mine, Incorporated, Jonathan Farrell, the manager of Sixteen to One Mine, and the Original Sixteen to One Mine, Incorporated, were aware of dangerous and unlawful conditions in that mine, and that two and a half months prior to this occurring they had received a citation for another chute on a different level of the mine that ran over the center line of the tracks and restricted clearance. And that on the date they received that prior citation, August 15th, 2000, they were told that they needed to mark areas of restricted clearance over the rail line and they needed to have advance warnings for those areas of restricted clearance. You will hear testimony that something as simple as this device (indicating) could have saved Mark Fussell's life. You will hear testimony that being aware of areas of restricted clearance in the mine, that this chute was never cut. It could have been cut a few inches to prevent it from running into the center line of the track. That wasn't done.

JUROR: That's a permanent chute? I mean it's not like --

MR. FILTER: You have to wait till you hear the evidence. That's okay.

MS. MEJLSZENKIER: The evidence will show that in addition to not cutting the chute, not marking the chute, not placing advance warnings in front of the chute, Mark Fussell was assigned to work on a locomotive that had a faulty controller and that locomotive could only be engaged in the high speed. When Mark Fussell started up that locomotive only a few feet away from the chute it lurched forward striking his head against the chute. And the evidence will also show that the locomotive can simply have been turned around the other way on the track, and instead of riding the locomotive with his head on the same side of the mine tunnel as the chutes, Mark Fussell could have been facing the chutes and he never would have struck his head, and none of us would be here today. Thank you.

MR. FILTER: We'll call our first witness, and that would be Vincent Kautz.

MR. PATCHETT: I want to advise the grand jury that questions you do have might be saved, so if we don't answer your question at this immediate time your question will be asked at the proper time.

FOREPERSON: Would you stand up and raise your right hand?

VINCENT KAUTZ
called as a witness by the People, having been duly sworn was examined and testified under oath as follows:

EXAMINATION

BY MR. FILTER:
Q. Mr. Kautz, could you spell your first and last name?

A. V-i-n-c-e-n-t, K-a-u-t-z.

Q. And, Mr. Kautz, you and I have never met. My name is Gale Filter and I'm going to ask you some questions for the people who are present here today, and if there's anything that you do not understand please feel free to say I don't understand the question and I'll be happy to re-ask it; okay?

A. Okay.

Q. Where, without giving your address, where do you live?

A. Brownsville in Yuba County.

Q. What is your occupation?

A. I spent this summer as a cat skinner, logging, running a caterpillar in the woods.

Q. What do you do now?

A. I just got laid off a week ago.

Q. From?

A. From logging, yes.

Q. Have you ever worked for the Sixteen to One Mine?

A. Yes, I have.

Q. And where is the Sixteen to One Mine located?

A. Alleghany.

Q. And that's in Sierra County?

A. Yep.

Q. When did you start working for the Sixteen to One Mine?

A. Gosh, I don't remember the exact date. I spent about four years at the mine, up until last year, until last January.

Q. What year did you start working at the mine?

A. I couldn't even say offhand. I was laid off for one point. I spent a season logging, about in the middle of my four-year period, so it must have been about '98.

Q. That you started?

A. Yeah.

Q. Okay. And --

A. Maybe '97.

Q. What kind of work did you do for Sixteen to One Mine?

A. Mining. All aspects.

Q. On and off how long did you, approximately, work for Sixteen to One?

A. About four years.

Q. And when was the last date that you worked for Sixteen to One Mine?

A. That would be 1/2/02.

Q. Okay. What was your reason for leaving Sixteen to One?

A. Laid off.

Q. Do you have an economic interest in the Sixteen to One Mine?

A. I do own some shares, and they were given to all the employees as a Christmas bonus, so I have a couple hundred shares in the company, that's all.

Q. When did you obtain that stock?

A. Must have been Christmas two years ago, I suppose. Maybe three years ago it was.

Q. At any point in time did you receive Sixteen to One stock as compensation for your work?

A. No.

Q. Has the value of stock gone up or down since you acquired it?

A. Down.

Q. Do you know a person by the name of Michael Miller?

A. Yes, I do.

Q. How do you know Michael Miller?

A. He is the president of the mine.

Q. And how long have you known Michael Miller?

A. Just in my time working up there.

Q. You know him to say "Hi, Mike"?

A. Sure. He's very personal with all the guys.

Q. And in your experience in the time that you worked at Sixteen to One Mine was he involved in the day-to-day operations of the mine?

A. Not so much the day-to-day operations of the mine, no.

Q. Were you working at the Sixteen to One Mine on November 6th, 2000?

A. Yes, I was.

Q. What time did you start work on November 6th?

A. Eight o'clock.

Q. What was your assignment on November 6th?

A. I spent the morning -- we had a tunnel in the upper workings that -- where water had found its way down into the mine, and I spent the morning shoveling sand to divert that water back out a different tunnel into the creek. And Jonathan Farrell came by and asked me if I would go down and work with Mark Fussell on the 1700 level, so I left the 800 level and went down to work on the 1700 level.

Q. Okay. Now, you mentioned this name, Jonathan Farrell; was he your supervisor?

A. Yes.

Q. And in all the time that you worked at Sixteen to One was he your supervisor?

A. No. No. He took over a management position just like the last year or so.

Q. From the time you were working there?

A. Right. I worked for a different mine manager for a couple years and then the money ran out, the gold ran out, there was a layoff. I spent that summer doing something else, and then when Jonathan took over the management position I was rehired.

Q. Okay. And on November 6th, 2000 what was Jonathan Farrell's position with Sixteen to One Mine?

A. Manager.

(Whereupon People's Exhibit 1 and 2 were marked for identification.)

Q. Do you recognize the person in that photograph?

A. Yes, I do.

Q. And who is that?

A. That's Jonathan Farrell.

Q. And I'm showing you what has been marked as Exhibit 1 Do you recognize that photo?

A. Yep, that's Jonathan.

Q. And does the picture in this photograph, is that an enlargement of this picture on the wall?

A. Yes, it is.

Q. Now, showing you what has been marked as Exhibit Number 2, do you recognize the person in that photograph?

A. Yes.

Q. Who is that?

A. Mike Miller.

Q. And is this -- is that the picture you just looked at in Exhibit 2?

A. Appears to be, yes.

Q. Okay. On November 6th, 2000 what was your rate of pay?

A. Approximately $14 an hour at that point, I believe, 14.50.

Q. Okay. At some time -- I think you've already said this but let me ask the question again. At some time on November 6th, 2000 did you work at the 1700 foot level?

A. Yes, I did, for a very short time.

Q. And what is at the 1700 level of the Sixteen to One Mine?

A. What is at the level?

Q. Yeah. I mean what's there? Why would you go from 800 to 1700 level? What was there?

A. Okay. They're setting up in the south end of the mine to go into some of the old workings and get some gold.

Q. And just as a point of clarification, I assume that Sixteen to One is primarily engaged in mining of gold?

A. Absolutely.

Q. On this day, November 6th, 2000, what time did you arrive at the 1700 level?

A. I believe it was -- I can't even recall what time it was. Around lunch time.

Q. Okay. And --

A. I spent a lot of time trying to forget. I had a lot of nightmares and sleepless nights after this incident.

Q. Well, let's try to get through this and we'll go quickly --

A. Okay.

Q. -- and see where we go. Had you ever worked at the 1700 level prior to November 6th, 2000?

A. Yes, at the other end of the mine. I worked in the north end.

Q. Had you ever been at this specific location on November 6th?

A. No.

Q. That was your first day?

A. Yeah.

Q. Did someone tell you to go to the 1700 foot level?

A. Yes.

Q. And who was that?

A. Jonathan.

Q. What were you told to do when you got there?

A. To assist Mark Fussell.

Q. And what was your understanding that Mark Fussell was doing?

A. He was putting a piece of equipment into place to start moving the muck that we call it, the dirt, the rock. It's a slusher. It's a big air-driven winch-type machine that has cables that go in and out, and you drag a big bucket back and forth and pull the muck wherever you want it.

Q. Did you take anything with you?

A. Yeah.

Q. What did you take?

A. I took him a tape measure, a chain saw, and I believe another telephone.

Q. Okay. And quickly, what was the tape measure for?

A. Okay. Mark had the slusher in place, but it has to have something to hold it down, so what you do is cut a big piece of timber and put it from the top of the tunnel to the machine itself to hold it into place, 'cause if there was a lot of pulling it will just pull the whole machine away from you. So he needed a tape measure to make the measurement for that stall, we call it, or that beam before he could start working. He had to get it anchored down, so I took him a tape measure and a chain saw so he could take that measurement and get that piece of wood.

Q. And the reason for taking the chain saw was to do what?

A. To cut the wood.

Q. Okay.

A. We use electric chain saws under ground.

Q. What about the phone, what was the purpose of the phone?

A. We have to have communication. It's the first three things you do when you go into a new work area, safe access, communication, and ventilation. Before you start working that's what you have to have.

Q. Okay. Did you, prior to going to the 1700 level on November 6th, 2000, have a safety meeting?

A. I can't remember. I can't remember that, what I did all that morning. We have one every week.

All right. That day though?

A. I can't remember if it was that day.

Q. Were you given any advice regarding what you would find there; whether there was any dangers or not that you should be alerted to?

A. No.

Q. Okay. That's a no?

A. No. No, I wasn't.

Q. All right. How did you get to the 1700 level?

A. The skip is our little elevator.

Q. And briefly, just describe what the work area looked like at 1700?

A. Okay. It hadn't been -- the work area hadn't been used in quite some time because there was rocks and old timbers and wood and stuff all over the tracks. And there was a little tunnel that went up, which is where Mark was working. He had the train pulled underneath there where the hole was, and he had just hoisted that machine, which weighs probably up to, I don't know, 500 pounds, up to a thousand, up into place, which was probably, oh, 30 feet above the level of the tracks itself.

Q. Okay.

A. And that's what he was to do was set up the machine and pull the muck into the chute so it can be loaded into the ore cars and hauled out.

Q. Color of walls?

A. Color of walls?

Q. The area you were working, what were the color of the walls?

A. Black and white.

Ceiling. The color of the ceiling?

A. I don't know, it's mixed. You got quartz and you got black rock.

Q. Dark or light?

A. Probably mostly dark I would say.

Q. What was the floor, color of the floor?

A. Dark.

Q. Lighting? What lighting was in the area that you were working?

A. Just the lights on your hard hats.

Q. That was the only light?

A. That's the only light I recall.

Q. So the only light would be the light that was on your hat?

A. And Mark's hat.

Q. And Mark's hat. Let me ask you something about this miner's hat. Does the light on that, when you have the hat on, is that one of those hats that has light in the front of the hat? Is that directional? That is to say that if you want to light something up you have to move your head?

A. Absolutely. Absolutely.

Q. What about to the side?

A. You got a tight beam that comes out your hard hat and you have to turn your head at everything you want to look at. There's a slightly wider beam, but it's not very bright, you can't see much.

Q. Okay.

A. With that you have to really point your --

Q. Tony, could you close those shades for a second? I'm showing you what I think is a miner's hat, I wouldn't have a clue, so I'm going to have you help me with this.

A. That's a different brand of lamp.

Q. But are these pretty standard?

A. Yeah.

Q. The hat you were wearing that day --

A. Exact same hat.

Q. Exact same hat?

A. The style, yes.

Q. And the light?

A. A different make, but basically the same idea.

Q. Okay. I'm going to have this marked as Exhibit 3, so you can put a tag up on top of the helmet if you would.

(Whereupon People's Exhibit 3 was marked for identification.)

Q. Now, what I'm going to ask you to do, Mr.Kautz, is if you could step down and move towards the back of the courtroom where it seems to be a little dark and show how this works if you would. Just go back there. And see where the corner is over in the left-hand corner? Can you just sort of get up to that corner with that light on, show the jury how it works?

A. You got your light, you got to look right at what you're working on in complete darkness. You can't see nothing but just what's right in front of you.

Q. So in other words, you're pretty good at that. I mean basically what you're doing is that you know enough, having done this over the years, I assume, that whatever you want to illuminate you have to point your head towards?

A. Right.

Q. Is that correct?

A. Yeah. We catch ourselves at home trying to point something out to the wife going like that (indicating).

Q. Don't take it off yet I got a couple questions to ask you. Now, let's say -- where you're standing, okay, let's say this was totally dark. If we were in a mine would you be able to see my features in a totally dark mine given the light?

A. I would have to put the light right on you like that (indicating).

Q. Okay. So if there was something else diverting your attention obviously the light would go off whatever is in front of you; correct?

A. Sure.

Q. Is there any way you could adjust that light to make it wider, broader, more intense, more narrow?

A. This one doesn't; however, the ones we use you can dial your beam in to be, you know, two feet or right down to a point, you know, so you can look way down a tunnel.

Q. Okay.

A. It will broaden out a little bit but not very much.

Q. When would you use that? When would you do that?

A. If I was working, tearing apart my drill or something, I would open it up so I could see the whole thing. Or if I wanted to see something, or point something out far away, I would tighten up my beam to a tight beam.

Q. What happens if you're down there and the light begins to wane, that is to say it flickers, looks like it's going out, is there a back-up system?

A. All the lights have two filaments in them so if one filament goes out you have a spare. But if that one goes out you're in the dark. I had my hat ripped off once and I walked out in the dark.

Q. Out of the mine?

A. Yeah.

Q. Okay. You can are take your seat, thank you. The day that you were at the 1700 foot level were there chutes there?

A. Yes.

Q. And do you recall how many chutes were in the drift that you were working, or in the area that you were working?

A. It could have been two, maybe, right there where we were working.

Q. And what were the chutes made from?

A. Wood.

Q. And what color; were they dark, light?

A. Dark.

Q. What were the chutes used for?

A. To pull the ore cars underneath the chute and bring the dirt or rock into the ore cars at above the holding area.

Q. Were the chutes that were located at the 1700 moveable?

A. No.

Q. What was the -- if you recall, what was the approximate distance between the chutes?

A. I don't recall.

Q. How far down from the ceiling, approximately, did the chutes extend?

A. They come more from out of the side, from the seam. It must have been, I don't know, eight or ten foot at the most.

Q. Okay.

A. I mean from the ceiling to the ground. So probably half that distance to the chute.

Q. Could you see the chutes without the miner's light being pointed at them?

A. No.

Q. Were there any warning signs to indicate the location of the chutes at the 1700 level?


A. Not at that time.

Q. And at that day?

A. Not on that day.

Q. Were there any flashing lights to alert you there were chutes present at the 1700 level?

A. No.

Q. Lights of any kind?

A. No.

Q. Was there any signs or posts that warned you of the presence of the chutes?

A. No, there wasn't.

Q. Were there any streamers? Do you know what I'm talking about, streamers?

A. No, there was nothing. In fact, I'd like to say that that wasn't even a work area that morning until Mark went in and cleared all the rocks and all the timbers out of the way off the tracks to get his train past those chutes so he could raise his piece of equipment up into the work area. So there hadn't even been a work area prior to that morning I suppose.

Q. Were there chutes located at other levels of the mine?

A. Yeah, there's chutes everywhere in the mine.

Q. Were there any warning signs indicating the location of those chutes?

A. Some of them, yeah. In the active work areas there they're usually flagged and marked, and we have one that even has a big light on it.

Q. Was that -- was that true on November 6th?

A. Yes.

Q. Okay. While you were at the 1700 level at any point in time on November 6th did you take measurement -- or take measures to avoid hitting the chutes?

A. No. I just had walked in with the chain saw and the tape measure. No, I hadn't even -- no.

Q. Okay. Directing your attention to Exhibit Number 4, the photo behind you, do you recognize the person?

A. Yeah, that's Mark Fussell.

Q. Okay. And that is -- I hand you what has been marked as Exhibit 4, do you recognize that photo?

A. Yeah.

Q. That's Mark Fussell?

A. Yep.

Q. And that's the same depiction that's on the wall?

A. Yep.

Q. And do you remember who was Mark Fussell's supervisor?

A. Jonathan.

Q. And when you arrived there what was Fussell doing?

A. He was up off the level putting that slusher into place.

Q. Was he wearing a miner's hat with a light?

A. Sure, yes.

Q. Did you say anything to Fussell when you arrived?

A. I hollered up at him that I had his tape measure and his saw.

Q. Okay. Was there a train at the 1700 level where you were working?

A. Yep.

Q. Could you describe what the train looks like?

A. Well, it's pretty much just a big square battery on wheels that you sit behind it, and it has a little draw bar and you can pull ore cars or flat cars, or it could just drive by itself without anything.

Q. What is the train used for?

A. Transporting men and materials.

Q. And how is it powered?

A. Battery power, electric.

Q. Did the tram run, or the train run on tracks?

A. Yes, it did.

Q. What were the tracks made of?

A. Iron.

Q. Do you know when the tracks were installed?

A. No, I don't.

Q. Did it appear to you that the tracks had been there for some time?

A. Yes. I believe that area of the mine was first developed in the '80's.

Q. 1980's?

A. In the early '80's, yeah.

Q. Did it appear that the tram was there for some time, or the train?

A. No, I'm sure that he just drove it in there that morning.

Q. Do you know how to operate the tram?

A. Yes, I do.

Q. How does it work?

A. It's got a controller with three forward gears and three reverse gears. It clicks in, click click click, click click click, forward or reverse, and it has a brake and that's it.

Q. Were you provided training on how to operate the tram?

A. Sure.

Q. Who trained you?

A. All the way back to the beginning. I believe Frank Miasanto (phonetic) broke me in on the trains. Yeah, in fact I'm sure he did.

Q. In your view, given your four years of experience working at the Sixteen to One Mine, were there any dangers in operating a tram in the mine?

A. Absolutely.

Q. What are those?

A. Everything is dangerous down there.

Q. But with the tram, what is the dangers with the tram?

A. Well, if you were to lean too far out to the side. You want to keep yourself on the machine because you're going through a tunnel, and sometimes it's -- the motor is just this close to the rock or the timbers. So you want to keep yourself and your hands inside the ride until it comes to a complete stop as they say.

Q. What things -- when you were the operator of the tram what were the things that concerned you?

A. Absolutely that. Going under chutes, going past tight places. You sit sideways in the motor, and you got the big battery here, so your back is just, I mean this close to when you're going by timbers and stuff. You don't want to lean back, you don't want to lean forward or stick anything out. When you go past the chutes you go slow and carefully and don't lean the wrong way underneath it.

Q. Now, you said that you sat sideways on the tram?

A. Uh-huh (affirmative).

Q. Does that create any problems?

MR. PATCHETT: Is that a yes or a no? You said uh-huh and this court reporter can only take down yes or no.

THE WITNESS: Okay. Which question?

BY MR. FILTER:

Q. You said you sat on the tram sideways.

A. Yes.

Q. Does sitting on the tram sideways cause any problems regarding risk?

A. No. I believe it's a safer way than sitting forward, because you're going both directions at whichever time. So you can see when you're going that way. You can see when you're going that way.

Q. But you have to turn your head to do so?

A. Sure, absolutely.

Q. Okay. Did the tram have lights?

A. Yes, they have lights.

Q. Where are the lights located?

A. On the battery box; one facing forward and one facing reverse.

Q. What are the lights used for?

A. Just so you can see better when you're driving the motor. Extra light than the one that's on your hard hat.

Q. On the day of November 6th, 2000 did the tram run under any -- did the tram tracks run under any of the chutes that were there that day?

A. Yes.

Q. If a tram operator was seated on the tram would his hat -- would his head strike that? Let me re-ask it. If a tram operator was seated on the train would his head pass under any of the chutes?

A. No, 'cause your head -- when you're sitting your battery box is about at this level (indicating) and your ore cars, the top of them are also at the same level. So all of that just clears under your chutes. You want your chutes to right there when you pull your car up under it close so nothing spills out.

Q. So if I understand you correctly, that if you were passing under a chute it would be necessary for you to duck, at the 1700 level, or else you would hit your head?

A. No, not necessarily. If you were sitting in your proper position you should clear the chute, or they should be -- I mean you have to lean one way or another to -- 'cause they don't come clear to the middle of the tunnel, they just come to the edge of the ore car.

Q. Let me put it this way: Would you have to move, would the operator of the tram have to move if they were passing under the chute in order to avoid striking their head against the chute?

A. No.

Q. You are absolutely sure of that?

A. Yeah.

Q. Okay.

A. He had to have been leaning, leaning forward or back.

Q. To avoid hitting the chute?

A. No, to hit the chute.

Q. That's your testimony?

A. Yeah. If he was sitting right, and looking the way he should be, he shouldn't have had to move his head or duck I don't believe.

Q. Let's stop there for a moment; okay? I want you to take a look. Step down, please.
(Whereupon People's Exhibit 6 was marked for identification.)

Q. Since the day that this took place on November 6th, 2000 have you discussed this case with Mike Miller?

A. No, I haven't.

Q. With Jonathan Farrell?

A. I did talk with Jonathan Farrell once briefly. Not really discussing the case though, just asked him how the mine was doing, and apparently nobody has been paid for four months and everyone is ready to -- mutiny is happening.

Q. Okay. I'm handing you item 6, Exhibit 6. And I'm going to ask you if you recognize what's in those two photos?

A. Yes, I sure do, that's the train, and that would be the chute.

Q. Okay. Looking behind you. On the top?

A. Now, looking back I should say that chute protrudes more than most.

Q. Okay. But that's not what I asked. Let's take it piece by piece.

A. Okay.

Q. You see the seat? Okay. Do you see right here?

A. Yeah.

Q. What's that?

A. That's the seat.

Q. Okay. You see right here? What's that?

A. That's the controller.

Q. Okay. If you were seated on this tram operating it would your feet be towards the controller?

A. Yes.

Q. What is that?

A. That's the chute.

Q. All right. Now, maybe I'm wrong here, doesn't that seat come right underneath the chute?

A. Yeah. He would have to move his head to get under that chute I believe.

Q. If he stayed static and he didn't move he would hit his head against the chute; would you agree with that?

A. Yeah.

Q. All right. Now, looking at that chute --

A. Let me just say that most chutes only come to barely right there (indicating).

Q. But we're talking about this.

A. Were talking about this one.

Q. I don't want to hear about other chutes, I just want to talk about this, focus on this chute for just a second. The top of this tram and the bottom of the chute, what would you say is the distance there?

A. About the thickness of a neck bone.

Q. Okay. Which is two inches, three inches?

A. Yeah.

Q. That fair to say, sir?

A. Yep.

Q. All right. Looking down, you see where this infrared light is?

A. Yeah.

Q. What is that, this right here?

A. That would be the light.

Q. Okay.

A. Most of the lights are on the battery box. I'm not familiar with that train. That has the light under the seat.

Q. Let me ask you, though, if that tram has three speeds forward and three speeds backwards, and if they were, I assume, if the seat was coming towards me, that would be the rear or reverse position?

A. We always call it, the way that you're mining is forward. You're driving tunnel this way, so anything going back would be backwards.

Q. Okay. My question is if that was coming towards me; correct?

A. Uh-huh (affirmative).

Q. This would be, right here, the primary form of lighting in the front; is that right?

A. Yeah.

Q. Would you agree that that light would --

A. His hard hat be his primary lighting.

Q. I'm saying on the tram.

A. Oh, the tram light.

Q. That light would tend to illuminate more toward the ground than it would toward the ceiling, would you agree with that?

A. Yeah. Those lights are awfully bright, those ones on the train, but yes.

Q. Okay. And in the photo that is at the bottom of 6, you see this device right here?

A. Yeah.

Q. What the heck is that thing?

A. That's a horn.

Q. It's a horn? What's that used for?

A. Signaling when you're coming around a blind area. I suppose for anybody that would be in the tracks walking.

Q. Uh-huh (affirmative). Well, why would you use it? If you have this light up here that's illuminating so people who are walking town the tracks would be able to see it?

A. Right.

Q. In addition it's a safety measure?

A. Right. That was a requirement to put the horns on there also.

Q. All right. Go ahead, take your seat if you would. Thanks for helping me here, because some of this is pretty hard to understand. Now, on this day at any point in time do you use that tram?

A. No.

Q. Do you know what the tram was being used for on that day?

A. Yes.

Q. What was that?

A. He moved the slusher into his work area.

Q. Okay.

A. The slusher being the piece of equipment that he hoisted up off the level.

Q. How many times did Mark Fussell use that tram the day that you were there?

A. I was only on the level approximately 15 minutes before Mark had his accident.

Q. Okay.

A. So I imagine that he -- I know he didn't carry that slusher back there on his back. He used the train to bring it in, and then he was going out to cut the timber that I spoke of earlier to hold the machine into place. So that's two times that I know of.

Q. Okay.

A. Once coming in and once going back out for his -- he didn't make it very far.

Q. He was moving materials or equipment to the best of your understanding?

A. Uh-huh (affirmative).

MR. PATCHETT: Is that a yes?

THE WITNESS: Yes.

BY MR. FILTER:

Q. At any point in time did you have any indication that the tram was not working properly?

A. No.

Q. Do you remember shortly after this took place that you had -- you were interviewed by a Deputy Sheriff Foxworthy?

A. Yeah, I believe so.

Q. Do you recall telling him that the train took off in its third speed?

A. Yeah.

Q. Do you recall that?

A. Yeah.

Q. Would that indicate to you that the train was working improperly?

A. No, not at all.

Q. So that's normal to start the train --

A. Sure, a lot of guys do it, slam up into high gear and take off. It takes off slower, but I mean it goes. If you're going somewhere, and you're not going real slow pulling a big load of something. You can use your slow gears, but it's normal to just jump on it and take off.

Q. Did anything -- when Mr. Fussell got on the tram did anything happen?

A. Not till he took off.

Q. How far -- what happened when he took off?

A. He only made it about six feet, I'd say, and got his head under that chute and smashed his head right between that chute and the battery box.

Q. Would you say that the tram was going at full speed?

A. It didn't have time to get up to full speed, not even close that distance.

Q. Did you see Mr. Fussell strike his head against the chute?

A. No, I didn't.

Q. How did you know that he struck his head against the chute?

A. 'Cause I heard a big crunch and the train stopped.

Q. What was -- when that occurred approximately what distance was there between where you were standing and where he had his head against the chute?

A. Couldn't have been more than 15 feet, 20 feet at the most.

Q. When you turned your light towards the chute were you able to see him?

A. Yep.

Q. What position was he in?

A. I could see over the battery box and see that his head was squished underneath that chute.

Q. Could you see the position that Mr. Fussell was in when he started the tram?

A. No.

Q. Did you see that he was seated sideways?

A. No. Well, I could see that after the fact.

Q. When you discovered him he was seated sideways?

A. (Witness nods affirmative).

MR. PATCHETT: Is that a yes?

THE WITNESS: Yes. Sorry.

BY MR. FILTER:

Q. Was his head facing sideways when you discovered him? Was his face facing sideways or looking forward?

A. His face was sideways still.

Q. What were you doing when he started the tram?

A. Cleaning up the area. There was rocks and wood all over. I believe I was hooking up a second telephone. Yeah, just stacking timbers out of the way and kind of -- it was a big mess and no one had been working there for a long time.

Q. When this occurred could you see, from where you were standing, this chute?

A. Uh-huh (affirmative).

MR. PATCHETT: Is that a yes?

THE WITNESS: Yes. I'm sorry.

BY MR. FILTER:

Q. And did it require your light to see the chute?

A. Yes, it did.

Q. Where was Mr. -- when you saw Mr. Fussell pinned against the chute where was his helmet?

A. It was on top of the battery box.

Q. And after you heard the thunk what did you do; or the crunch?

A. I turned and looked. I saw him, and I started for him. And the telephone was right next to me so I grabbed up the telephone first and hollered for help, and then I went to Mark.

(Whereupon People's Exhibit 5 was marked for identification.)

Q. I'm showing you what has been marked as Exhibit 5. Does this depiction up on the wall fairly represent the position that Mr. Fussell was in when you discovered him?

A. No, you would have to push that train another six more inches.

Q. So the train was actually more under the chute?

A. Yeah. And his head was -- his neck was obviously broken and his head was laid over on that battery box and blood was pouring out everywhere.

Q. The one thing that's clearly wrong with this picture is, you said it was the helmet was on top of the tram; correct?

A. Yeah. A little bit more. His head was under there and the hard hat fell off.

Q. Okay, let me ask you this: Given Exhibit 5, is it fair to say that his head, in terms of its position, is looking sideways; is that fair?

A. Yep. Yep.

Q. The body position on the side, would that be a fair characterization?

A. Yes.

Q. And the only difference, the two differences, tell us if there's others, is that, one, he was pinned more underneath the chute than what is shown here; and secondly, that he didn't have his helmet on. And actually there's a third thing?
 By SCOOP

06/23/2004  9:21AM

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 behind you on the wall, is that the --

A. Yes.

Q. Is that the same picture as the one you're holding?

A. Yes.

(Whereupon People's Exhibit 10 was marked for identification.)

Q. I'm handing you what's been marked as People's Exhibit Number 10 for identification; what is it?

A. It's the ore chute on the 800 foot level, my partner that was accompanying me on the inspection, Bruce Allard, and measuring the chute lip.

Q. Is that picture a fair and accurate depiction of the chute on the 800 level of Sixteen to One Mine?

A. Yes.

Q. Did you take this picture?

A. Yes. I was the one that snapped this shot, yes.

Q. This picture is also being displayed on the wall behind you?

A. Yes.

Q. Is that the same picture you're holding, People's Exhibit 11 -- or 10, I'm sorry?

A. Correct.

Q. Who is that in the picture?

A. Bruce Allard.

Q. What is he doing there?

A. He's measuring from the rail to the bottom of the chute.

Q. Is the rail visible in that picture?

A. Yeah.

Q. Could you please indicate with the laser pointer where the rail is?

A. I've got to push the button, huh? He's got the bottom of the tape measure on the rail. You can see there kind of horizontal lines here, that would indicate where the rails are. He's right on the track.

Q. So the -- you also mentioned a bang board, would you please indicate that?

A. The bang board is always kind of hard to see. It's right here. There is the bottom of the bang board right there, and it goes up. There's a chain right there. It's chained in. And that's the sift arm that holds it in place. They could easily move that bang board back if they took that out, and they did after talking about it, get that out of the way so the guy didn't have to duck. He had a little bit more room, he didn't have that limited space. Everybody can see that bang board all right? It's the edge looking this way. It runs long. Looking at the edge of it, straight edge of it, and it's probably about six feet, seven feet long, and we're looking right at the edge of it.

Q. For the record, the witness is identifying what is to the right of the individual in the photo. It has what appears to be a metal brace holding it, and you can see in the photograph a line coming down at a few degrees off vertical. Okay. What is Mr. Allard doing in that photo? You stated he's measuring in that photo?

A. Yeah, he's just taking a measurement to justify that we actually had a measurement of height. This, of course, with Jonathan making statements that they will contest this. And we knew we had to cross our I's and dot our T's to make sure that we had everything very accurate.

Q. Okay.

MR. FILTER: I have one question. I'm unclear as to one thing. See right here?

THE WITNESS: Correct.

MR. FILTER: Between the -- what is this again?

THE WITNESS: That's a chute lip.

MR. FILTER: This is the bang board?

THE WITNESS: Correct.

MR. FILTER: These are the tracks; am I correct?

THE WITNESS: Yes.

MR. FILTER: Are you saying the operator of the tram had to get his head through that opening right here?

THE WITNESS: Correct.

MR. FILTER: Okay, I got it.

THE WITNESS: 'Cause his head was 60 inches, and that bottom of that chute lip and bang board are 55 inches, so he had to put five inches of head before the chute.

MR. FILTER: Okay. Thank you.

BY MS. MEJLSZENKIER:

Q. I'm handing you what has been marked as People's Exhibit 9 for identification. What is it?

A. This is the ventilation -- mine evacuation and ventilation plan.

Q. Do you recognize it?

A. Yes.

Q. Is it for the Sixteen to One Mine?

A. Correct.

Q. How do you recognize it?

A. Well, we review -- this is one of the things we also review is to make sure that we have a ventilation plan, and they have signs and markings for their ventilation, for the flow of ventilation in the event of an emergency. They need to sign -- they need to assign the areas of the direction of air flow, and the escape route. So this is the 49 winds here, and this is the portal comes in right here, comes down into the shaft.

MR. PATCHETT: For the record, are you showing an area that's on the left middle side of that diagram?

THE WITNESS: This is the portal, yes.

BY MS. MEJLSZENKIER:

Q. And there's -- the witness is identifying an area that's also on it is written, or above it is written "800 portal". Could you please take this green sticker and place it in the area where the chute you observed that created an area of restricted clearance was located?

A. Now you're challenging me.

MR. FILTER: Let me interrupt for a second. She's almost done with her questioning. My thoughts are, let her finish with this witness, we can ask the questions and release him. Is that okay with everybody? Okay.

THE WITNESS: I'm not -- I can't hardly pinpoint it. This map isn't really very accurate. Some of these are mined out areas. This was behind the 49 winds. I don't remember if it was on the south or north side here. I think it was on the south.

BY MS. MEJLSZENKIER:
Q. Is it accurate with regard to the 800 level, do you know, the diagram?

A. It's never been that accurate of a map. I would say it's probably right in this area here (indicating).

Q. Would you please write your initials and the date on where you placed that sticker?

A. The pen doesn't write very good, I'll use mine.

Q. For the record, the witness placed a green dot on the diagram and is writing his initials and the date.

A. You might want to ask Bruce, he knows this map real well. Pretty hard to pinpoint it.

(Whereupon People's Exhibit 12 was marked for identification.)

Q. I'm now handing you what has been marked as People's Exhibit 12 for identification. What is it?

A. This is a sectional map of the -- I'm guessing the 49 winds and part of the portal, and part of the old Tightner Shaft.

MR. PATCHETT: You don't want to guess.

THE WITNESS: I don't want to guess. It's a sectional of the winds, 49 winds, and the 800 foot level.

BY MS. MEJLSZENKIER:
Q. Is the area on the 800 level where you noted the area of restricted clearance, that chute, is that on there?

A. Yes.

Q. Okay. Is that an easier representation of the map to deal with?

A. It could be.

Q. For you looking at it?

A. Yes. It's a little closer up, yes.

Q. Can you please, could you turn that around so that the jurors can see it? And can you please indicate on there as well where the chute that you issued the citation for is located?

A. In this area (indicating).

Q. I'll hand you a green sticker. Could you please place it in that area? For the record, the witness placed a green sticker on the map and is now, I presume, dating and initialing it; is that correct?

A. Correct.

Q. Okay. So can you explain on that diagram, could you turn it around so the jury can see it again and explain there's an area there, there is a square on there, a colored-in square?

A. Yes.

Q. And then there is a pink line extending down from that. Could you explain what that is?

A. This would be the top of the winds at the hoist room. This would be the hoist room. This is the operator's station for the hoist room, operator running the shaft cable.

Q. And in the area where you placed the green sticker it looks like -- is that to -- are all the lines on this, do they indicate drifts in the mine?

A. That's what may be confusing. The drifts, they could be drifts or mined out areas. They could be raises. So unless you have more of the history of the mine, and maybe geology and overlay maps, it's hard to tell, you know, what's active and what isn't. So a lot of times you have to go over that.

Q. There's two -- in the area where you have the green sticker there's two long segments on that map that look like they're coming together. Are those drifts or what is that?

A. I guess I don't exactly know what you're talking about. Where these two line segments come together?

Q. Yes.

A. These are drifts or mined out areas. This is a drift. The arrows would be the air flow showing it would be traveling in that drift. So the other lines would probably unlikely be a traveling drift at that time.

Q. Which is unlikely to be a travel drift?

A. These above here. Yeah, the stuff up here.

Q. Would the location of that chute so close to the winds, would that make it more likely an area of major travel?

A. I can't say more likely.

Q. Okay. Do you know if that area in particular was a main travelway?

A. It was at that time, yes.

Q. Okay.

A. The 800 foot level is a main travelway for -- it's the portal. It's the portal level, the entry level where they actually exit out into the outside.

Q. Okay.

A. So they can actually drive out of the mine on rail and come in the mine on rail via the 800 was their portal level, so it is a very heavily trafficked area.

Q. I think what I'd like to do now is if, Madam Foreperson, if you could please admonish.

MR. FILTER: Denise has more to ask, and come back to it the day after this incident took place, which you need to hear. And I have these questions. And what we'll do is, if you think of anything over lunch, bring the questions back. Shouldn't take us more than 10 or 15 minutes. And then when you get back, it's up to you guys when you want to take your lunch and when you want to come back; we're at your disposal.

FOREPERSON: You are 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 in any way are in jeopardy. Okay. And that goes for the jury.

MS. MEJLSZENKIER: We can take one hour and then return here at 1:40.

MR. FILTER: You all remember to set your clocks?

(Whereupon a brief recess was held.)

(Role of the jury was taken)

FOREPERSON: I'm to remind you that you are still under oath. You want me to repeat it?

MR. FILTER: The witness acknowledged that he was still under oath.

THE WITNESS: Yes.

BY MS. MEJLSZENKIER:
Q. Inspector Weisbeck, let's turn to August 16th, 2000. Did you return to Sixteen to One Mine on August 16th, 2000?

A. Yes.

Q. Did you deliver the written citation for the chute on the 800 level of the mine at that time?

A. Yes.

Q. Who did you deliver the citation to?

A. Jonathan Farrell.

Q. Was Michael Miller present?

A. Shortly after.

Q. Did you subsequently go back to the location of the chute?

A. Yes, we did.

Q. Who did you go with?

A. Bruce Allard, Mike Miller and Jonathan Farrell and myself.

Q. What if anything did you see when you arrived at the location of the chute?

A. I seen that they had put up some streamers, some pink ribbon streamers, and painted with color paint "low head room" on the side of the chute.

Q. Did you -- did you discuss the citation with either Michael Miller or Jonathan Farrell?

A. Both.

Q. Did you discuss with both simultaneously?

A. Yes.

Q. Did you discuss how a miner could be injured by an overhanging chute?

A. Again, yes.

Q. Did either of them respond?

A. Yes.

Q. What was -- did Michael Miller respond?

A. Yes.

Q. What was his response?

A. He said that MSHA is in the wrong and he will contest this.

Q. Did Jonathan Farrell respond as well?

A. I don't recall.

Q. Did you discuss placing warnings in advance of the chute with Michael Miller and Jonathan Farrell at that time?

A. Yes.

Q. Did you discuss the use of flashing lights placed in advance of the chute to warn locomotive operators of upcoming areas of restricted clearance?

A. I had explained to him in detail for best practices that could be implemented in that scenario. Lights was mentioned. You know, something hanging down from the drift was mentioned, or other means to -- in advance, yes.

Q. When you say something hanging -- actually, when you say you explained to "him", who were you referring to?

A. Mike Miller.

Q. And was Jonathan Farrell still present at that time?

A. Correct.

Q. And when you said you explained also something hanging down from the drift?

A. Signs hanging down from the drift back to indicate that there was low clearance coming soon.

Q. So signs placed in advance of the chute?

A. Correct.

Q. When you conducted -- in general, when you conduct an inspection of a mine do you inspect the whole mine, the entire mine?

A. We do the best we can for the mine in its entirety for all working areas, or areas that may be frequented for maintenance, yes.

Q. On your inspection that you conducted on August 15th and 16th did you inspect all of Sixteen to One Mine?

A. No.

Q. Did you inspect the 1700 level of the mine south of the 49 winds?

A. It was -- we was at the winds, 49 winds area of the 1700. We had went one direction, it was to the north. We went to the sublevel 1730 and back to the 1700, and it was talked about that there was no activity on the south end of the 1700 at this time. And I believe I wrote in my notes that they -- there were plans to do some rehab in that area in the future.

Q. Who told you that there were plans to do work in that area?

A. I don't recall if that was Mike or Jonathan. I don't recall.

(Whereupon People's Exhibit 11 was marked for identification.)

Q. Okay. I'm handing you People's Exhibit 11 for identification. What is it?

A. This is the chute where they put some streamers and some paint indicating low head room, and something to hang down to indicate -- to catch the eye.

Q. Is that the chute on the 800 level that you inspected?

A. That's correct.

Q. Is that a fair and accurate depiction of that chute on the 800 level that you cited Sixteen to One Mine for?

A. Yes. It's the same chute.

Q. There is a -- there's a picture projected on the wall behind you, is that the same picture that you're looking at currently, People's Exhibit 11?

A. Yes, it is. Let it be noted that they did pull that bang board back, as you can see in that picture now. They did pull that bang board back. They took that horizontal brace that was in there, they took that out and they chained that bang board back so it gives better clearance.

MR. FILTER: Can you see the bang board in that photo?

THE WITNESS: Yes, you can.

BY MS. MEJLSZENKIER:

Q. Can you use that to indicate where it is?

A. Here's the bang board. Now, remember it was right here? Now they pulled it back, took it out of the track line area.

MR. PATCHETT: Who is "they"?

THE WITNESS: They would be the persons who the scenario; either miners or whoever else addressed. I don't know who addressed it.

BY MS. MEJLSZENKIER:

Q. And then the ribbons that you were talking about, could you please indicate those with the pointer?

A. These are the ribbons, the pink ribbons that they put up.

MS. MEJLSZENKIER: I have no more questions.

EXAMINATION

BY MR. FILTER:

Q. We have some questions from the jurors. Go ahead and take a seat and I'll give them to you. Answer them as well as you can. How often are your inspections done of the various mines?

A. Depends on their status. On underground, full-time operation, it would be inspected four times a year, once each quarter. A full time surface operation would be inspected two times a year. And a surface operation that is intermittent status would be inspected once a year.

Q. So in the case of Sixteen to One Mine, how frequently would that be inspected?

A. Four times a year.

Q. To your knowledge had Sixteen to One been cited for violations, restricted clearance violations prior to the date that you visited?

A. No, I do not know.

Q. Were the chutes that you saw, were they new or old?

A. Old. Well, if I may correct. I don't know what we would classify as new or what we would classify as old. They weren't newly installed as in the year. They were -- this appeared to be an older chute, yes.

Q. Okay. In this instance, on the date that you went out and cited for one chute, did you check for other chutes that day?

A. Yes, I did.

Q. And what was that result?

A. I didn't come across anything that had this discrete of a hazard.

Q. When work is restarted in previously abandoned areas does the regulation state how that is to be accomplished?

A. Well, there should be an examination of the work area prior to performing work in that area.

Q. Is there a standard or regulation for placement of lights on a locomotive?

A. No, there's not.

Q. Do you know if all of the locomotives in the Sixteen to One Mine were the same?

A. I do not believe so, I believe they are different.

Q. On November 6, 2000 -- are you aware of any of the events that went around -- surrounded November 6th, 2000?

A. I'm aware of it now.

Q. But the question is were you then?

A. No, I was not.

Q. Okay, I can't ask you this one question then. Do all other locomotives at the mine have lights at standard height?

A. I don't recall.

Q. Were there any other violations or citations in your August 2000 inspection?

A. Yes, there was.

Q. What were those?

A. I believe there was 10 citations issued.

Q. Could you tell the jury what the nature of them were?

A. I can try.

Q. To the best of your recollection.

A. Okay. I think -- I believe the first citation was a trouble light, a metal framed trouble light that was laying on the ground -- not on the ground, but on the wood platform in a little shop area, a little tool room. Didn't have a ground plug on it. And it was a metal frame so it was a grounding violation where they need to make sure it was grounded. That way, if somebody picking it up on the metal frame doesn't become the same path of ground and become electrocuted. I believe the second violation was the chute violation. We ran into -- after we continued on back there we had two or three citations on some ground control. There was some ground control issues.

Q. What's that mean?

A. Lack of -- they had some broken timbers that were set for holding up ground that were deflected and broke that had not been replaced. And the standard requires them to replace timbers that are broken.

MS. MEJLSZENKIER: When you say holding up ground, do you mean the roof of the drift?

THE WITNESS: Yes. They're supporting the back from relieving itself, or taking weight, or caving in, this type of stuff. There was another one that -- there was some loose formation of rock that had some very visible cracks that they had not addressed or checked out with a bar to see how loose they were. And there was a slusher set up right underneath the area. I'm trying to think of all the underground citations. If I recall, I think that was it for underground, and then the rest.

BY MR. FILTER:

Q. That's okay. Did you inspect the whole Sixteen to One Mine, including the 1700 level on the day you were there?

A. Parts of the 1700.

Q. Okay. There's a second part to this question. Or do you just inspect the operator levels?

A. The operating levels are the focus for inspection unless there are areas that they have weekly maintenance, or where there is exposure for people that travel in the area infrequently, we will still check those areas. But if it's a known shut down area, they don't have anybody scheduled to go in there, or they don't plan on going in there for a while, we don't -- we don't put ourselves in harm's way to make sure. If that was the case we would have to do tests for the air, we would have to check for -- we would have to do an inspection as we were entering, and we don't put yourselves in that position.

Q. When you give a citation to those that you have cited, do you give them a certain time to fix the things that they have been cited for?

A. Correct.

Q. What generally is the time?

A. We usually try to disseminate that. That's kind of a feedback from the operator. They say two months, I say two days type of thing. It's just kind of -- maybe that wasn't a good example. We try to evaluate how long it would take if they had to do it right now.

MS. MEJLSZENKIER: Do you base the amount of time that you give them to abate the condition, do you also base that in part on what the condition is that needs to be corrected?

THE WITNESS: That's very, very true. Now, if they have to order -- if they have to order parts we give, in consideration that they have to order parts, and we may say how long would it take you. We'll give you two days, and then in two days we'll take another look at it. And if they ordered the parts, and we see the order number, and they need an extension, we'll give another day or two extension on that, yes.

BY MR. FILTER:

Q. Do you then go back to reinspect that the items that have been -- that you have provided citations to have been corrected?

A. Yes.

Q. Was Sixteen to One Mine given a time line for making the prompt safety repairs?

A. Yes.

Q. What was the time line, do you recall?

MS. MEJLSZENKIER: On the chute.

THE WITNESS: For the chute violation I would have to refer back to my notes. Probably it was a fairly easy fix, it looked like a one day, probably just one day to fix it, or maybe the end of the day.

EXAMINATION

15 BY MS. MEJLSZENKIER:

Q. Would it refresh your recollection to look at your notes?

A. Yes. If you have a citation order, documentation 4049.

Q. Did you bring anything? Did you bring something with you to look at today?

A. Yes.

Q. Are these --

A. That's it.

Q. Are these the notes that you brought with you to court? Would this refresh your recollection?

A. Yes. I put termination due --

Q. I'm sorry, could you please look at it and refresh your recollection?

A. Got you.

Q. Thank you.

A. I put the same -- I gave them the same day to fix the condition. I gave them about four hours.

EXAMINATION

BY MR. FILTER:

Q. Yeah?

A. Because I felt it was that discrete of a hazard, and they had exposure for that, some of that was pulling rock on that level, and I wanted it -- I'd like to have seen it 13 done ASAP.

Q. Look back at this. In your view is that a temporary -- wait a second. Looking over your shoulder, sir, is that a temporary or permanent chute?

A. A temporary or permanent chute?

Q. Yeah.

A. That would be a permanent chute.

Q. Okay.

MS. MEJLSZENKIER: Are there temporary chutes?

THE WITNESS: Yes, there is such a thing as a temporary chute.

MS. MEJLSZENKIER: In the inspection you conducted at Sixteen to One Mine did you see any temporary chutes?

THE WITNESS: Yes. I did.

MS. MEJLSZENKIER: That's not one of them?

THE WITNESS: No, it's not.


BY MR. FILTER:

Q. Are there any written documents concerning training where the train is concerned, and how often are they updated? By that, I think what they're referring to is the train that you said earlier in your testimony that was going under the chute.

A. Okay.

Q. Is there documents that have to be provided to your agency, or are there documents that you know about regarding the training that is involved in operating that mine train?

A. Okay. We do require them to do a task training on equipment that a person is to operate. We like them to document a task training form, yes.

Q. Who keeps those documents?

A. The mine operator.

Q. And then I assume that those are open to your inspection to see that they're doing the job; is that correct?

A. That's correct.

Q. Is there a manual for operation of the train -- if you know the answer to this question. Is there a manual open for the operation of this train that you saw on the day that you did the inspection, and if so where is it located?

A. I don't know a manual.

Q. Is there an emergency stop button for the operator mounted on the cart, do you know?

A. On this particular train under this chute? I do not -- I do not know if there was an emergency stop button.

Q. On the day that you were out there were any other chutes marked in any of the work areas that you saw?

A. Not that I saw.

Q. Looking back on Exhibit 11, was -- given what -- that's the repairs, if you will, or that's what you asked to be done to this chute. Was that acceptable to you?

A. That was to the minimum of acceptability.

Q. Given what you see up there, looking at that right now, you didn't issue another citation, did you?

A. No.

Q. Were the ribbons and the writing a way to correct the cite?

A. That was a way to conspicuously mark the chute.

Q. Did you require any lights or warnings?

A. No.

Q. Why?

A. It was very confrontational. It was a tough, hard thing to deal with their frustration, their anger, to get them -- I felt to get them to do -- to acknowledge and to do something. They knew they had to do something to abate it. And that with what they had done, again, I explained best practice is, guys, let's take a good look at the big picture here. Now, you make an attempt to conspicuously mark the chute, now could you at least put something out further to mark in advance.

MS. MEJLSZENKIER: When you were saying "they", who were you referring to?

THE WITNESS: To Mike and Jonathan.

BY MR. FILTER:

Q. Is the citation for the low clearance at the 800 level chute specific to that chute, or does the citation cover similar chutes throughout the mine?

A. That citation was specific to that chute.

Q. Are inspections done with advance notification, or are inspections a surprise?

A. They're unannounced.

Q. In your view did they know you were coming even though they're unannounced?

A. Do they know I'm coming in?

Q. Yeah.

A. No.

Q. Does your agency categorize citations according to the severity of the citation? For example, A, B, C, or are all citations considered of equal value?

A. No, they're evaluated different.

Q. And explain that principle? How are they evaluated differently?

A. Some are evaluated in the gravity section, whether it's unlikely to cause an accident, or reasonably likely to cause an accident, or highly likely it's going to cause an accident, or if the accident has occurred. The next evaluation would be the likelihood of the accident to cause a type of injury, be it no injury, be it a loss of work days, restricted duty, be fatal. I'm missing one in there. There's four categories. And it reflects on the number of persons effected. Then it reflects on the negligence, be it low negligence, moderate negligence, high negligence, or reckless disregard. Those are all evaluations that are disseminated when asking questions with the mine operator.

Q. Let's just turn this around just a little bit. Instead of all of those things that you just said, on a scale of 1 to 10, with 1 being the least severity for a citation and 10 the most serious citation, how would you rank this on a scale of 1 to 10?

A. At that time I rated it probably, well, say a 5.

Q. And 5 to you, that is still should have been corrected within four hours?

A. Yes.

Q. Do you go direct to the mine or do you go to the office first?

A. At Sixteen to One we go to the office first because they have the mine gate locked.

Q. I guess the follow-up to that would be in other mines do you go immediately to the mine itself?

A. That may vary, depending on if it's a shaft mine, a portal mine, whether there is an office or not. It has some variables.

Q. Finally, whose job is it to correct the cites that you inspect; is it the mine manager, is it the CEO?

A. It would be the mine's responsibility. As far as the management or CEO of the mine, who was ever directing the work force to correct the conditions.

Q. In your view both Mr. Miller and Mr. Farrell filled that capacity?

A. Yes.

Q. When the mine opens a new area that has not been -- I said that was the last question before, but he just handed me one. When the mine opens a new area that has not been worked recently, what is the first thing that is required by your agency?

A. We would expect them to do an examination of the work place.

Q. Is that understood throughout the industry? By that I mean to say do all mine owners understand that is a safety principle?

A. Yes.

Q. Is it a safety -- is a safety check required? I'm not really sure --

A. That would be like a workplace examination. You're checking for, as you go, for initially your ventilation to start out with, your ground in the area as you slowly advance. You're required to, in my experience, we would bar our way in. We would take a bar, maybe an oxygen gauge or TMX gauge, our air flow. We have to set up to make sure we have ventilation. And we'd examine our workway into the area that we were going to anticipate trying to get to. We would be looking at the ground condition, we would be looking at your ventilation and so on and so forth as you advance in. That would be an examination of the workplace prior to going into an area that has been shut down for a period of time, yes.

Q. Could a clean-up of an area begin before a safety check is conducted?

A. It should not.

Q. Okay. Are inspection records published or shared with other governmental organizations?

A. I believe they're shared.

Q. In what way?

A. I think Cal OSHA.

Q. Okay. Let me just go back and reword this, it might help the question. In California are inspections and record -- I'm sorry. Are inspection records in California published or shared with other governmental organizations by your agency?

A. I don't believe so.

Q. Okay. Do you share records with Cal OSHA?

A. No.

Does state or other law specify actions to be taken for citations that are considered potentially dangerous? For example, is OSHA notified?

A. Would you repeat that, please?

Q. Yeah. Does state or other law specify actions to be taken for citations that are considered potentially dangerous? Do you know the answer to that question?

A. No.

Q. You don't know the answer?

A. I do not know the answer.

Q. Okay.

MS. MEJLSZENKIER: Anymore questions?

MR. FILTER: Okay. Thank you, Mr. Weisbeck. Admonishment. We have to have the admonishment.

FOREPERSON: Just like to admonish you again 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 this 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 personal rights are in any way in jeopardy.

THE WITNESS: Thank you.

FOREPERSON: Thank you.

GREGORY D. REIBER

called as a witness by the People, having been duly sworn was examined and testified under oath as follows:

FOREPERSON: Please be seated.

EXAMINATION

BY MS. MEJLSZENKIER:

Q. Could you please state and spell your name for the record?

A. Gregory D. Reiber, R-e-i-b-e-r.

Q. What is your occupation?

A. I'm a medical doctor.

Q. Do you practice a certain type of medicine?

A. Yes.

Q. What is -- what is that?

A. Forensic pathology.

Q. What is forensic pathology?

A. Forensic pathology is the branch of medicine that involves examination of bodies of individuals in what we call an autopsy setting. And it involves people who have died under unknown, unusual, or unnatural situations, such as accidents, homicide victims, suicide victims. Many of them are unknown deaths that turn out to be from natural diseases but without a preceding medical history to go by.

Q. What is your educational background, Dr. Reiber?

A. I finished college with a Bachelor's of Science degree in biology, attended medical school at Loma Linda University graduating in 1981. After medical school I spent four years at Loma Linda University Medical Center with specialty training in anatomic and clinical pathology. Following that I spent an additional year in training at San Bernardino County working with Dr. Irvine Root (phonetic) and the Coroner's Office in San Bernardino in the area of forensic pathology.

Q. How many autopsies have you performed in your career as a forensic pathologist?

A. Approximately 5,000.

Q. Are you Board certified in any particular area or areas of medicine?

A. Yes.

Q. What are those?

A. In anatomic pathology, clinical pathology, and forensic pathology.

Q. What is the difference between those three?

A. Sure. Anatomic pathology involves the study of disease as it is manifest in tissues of the body; either by doing an autopsy where you're studying the body as a whole, or by doing what we call surgical pathology where you are examining tissues removed at surgery, basically trying to assist the surgeon in arriving at a diagnosis, or deciding if they have removed an entire tumor for example. Clinical pathology is the medical laboratory side of medicine where you're involved with analyzing blood or other body fluids looking for what constituents are present and what that may tell about the presence or absence of disease in a given patient. Forensic pathology is built on both of those as a foundation, but it then goes into the area of where someone has died under circumstances that we're unsure of, there may be some question about, or there's obviously something unnatural at work. And so you draw on the principles, fundamentals of pathology, and then apply them in a setting where there is some question about a cause of death that may ultimately arrive at some point needing to have a judicial proceeding about it.

Q. Have you previously testified in court as an expert in the field of forensic pathology?

A. Yes.

Q. How many times?

A. At least 300 times.

Q. Doctor, on November 8th, 2000 were you working for the Sierra County Sheriff-Corner's Office?

A. Yes.

Q. What was your relationship with the Sierra County Sheriff-Coroner's Office on that date?

A. I was working as a member of a pathology group that provided forensic pathology services for coroners in several counties, including the county of Sierra.

Q. On November 8th, 2000 did you conduct an autopsy of Mark Fussell?

A. Yes.

Q. Where was the autopsy conducted?

A. That was performed at the Placer County morgue in Auburn, California.

Q. Who was present?

A. Myself and Eric Brock, the autopsy assistant.

Q. How were you able to determine that the deceased was Mark Fussell?

A. The body was identified with a tag around the right ankle with his last name written on it in ink, and there was also the last name written in ink on the front of the left leg.

(Whereupon People's Exhibit 4 was marked for identification.)

Q. Doctor, I'm handing you what has been marked as People's Exhibit 4 for identification. What is it?

A. It appears to be a photograph of Mr. Fussell.

Q. Okay. And that is the individual you recognize as having conducted an autopsy on on November 8th, 2000?

A. Yes.

Q. There is a photograph being projected on the wall behind you. Is that the same photo that you're holding in your hand, People's Exhibit 4?

A. Yes, it is.

Q. Were you able to determine the time of death?

A. No, I did not determine the time of death.

(Whereupon People's Exhibit 21 was marked for identification.)

Q. I'm now holding a certified copy of Mark Fussell's death certificate, previously marked as People's 21 for identification. It's a certified copy as required by Health and Safety Code Section 103550. Doctor, I'm now handing you -- Doctor, I just handed you People's Exhibit 21, Mark Fussell's death certificate. Is anything in that death certificate inconsistent with your findings from conducting an autopsy of Mark Fussell?

A. No.

Q. Is the time of death on the death certificate consistent with the findings you made while -- when you conducted the autopsy?

A. Yes.

Q. Okay. Doctor, did you form an opinion as to what caused the death of Mark Fussell?

A. Yes, I did.

Q. What was the cause of his death?

A. He died as a result of blunt trauma to the head and neck.

Q. What is blunt trauma?

A. Blunt trauma is the type of injury that occurs when a blunt object or surface of some kind impacts the body; or conversely, the body impacts some blunt surface. It's a situation where generally something isn't penetrating or cutting into the body, but instead there are forces transmitted to the body over a somewhat broader surface area. You have more of a blunt type of impact.

Q. Where specifically were there signs of blunt trauma on Mark Fussell?

A. Predominantly on the left and right sides of the head, some on the left side of the face, both sides of the neck, and on the right shoulder area.

(Whereupon People's Exhibit 17, 18, 19 and 20 were marked for identification.)

Q. Doctor, I'm handing you Exhibit Number 17, what is it?

A. This is a diagram that I prepared to document some of the external injuries on the right and left sides of Mr. Fussell's head and neck.

Q. Doctor, if you look behind you, is the picture projected on the wall behind you, is that the same as the exhibit you're holding in your hand, People's Exhibit 17 for identification?

A. Yes, it is.

Q. Is that diagram an accurate depiction of the human head and skull from right and left side view?

A. Yes.

Q. Did you prepare this to assist you in explaining your testimony?

A. Yes, correct.

Q. Let me give you a pointer. Okay. You stated in -- that in your autopsy you found that Mark Fussell had sustained injuries to the left side of his head and neck.

A. Correct.

Q. Could you please use the diagram projected on the wall behind you and identify in more detail what the external injuries you found on the left side of Mark Fussell's head and neck were?

A. Certainly. The left side of the head is shown in the right lower part of the diagram. The most pronounced injury on the head of all was -- is represented here. There was a large tear in the skin, what we call a laceration in technical terms, with a large scraped area around it. That tear at one point penetrated all the way through into the -- into the mouth, through the cheek, and exposed an area where the lower law was fractured from nearly the front midline back to where the jaw makes an angle up toward the ear. Behind the left ear, and extending down onto the upper part of the neck was a large scraped area up to a little over five inches across, and also the left ear was basically scraped, and the back of the ear, or the base of the ear was almost completely torn from the surrounding scalp tissue on the left side. One thing that isn't shown clearly on this particular diagram, but that I should add while we're talking about the left side of the face, there was bruising around the left eye, and there was a fracture through the left check bone as well.

Q. Given the injury, do you have an opinion as to how it was caused?

A. Yes.

Q. What is that opinion?

A. A very forceful blunt impact, or perhaps multiple impacts, but at least one very forceful impact to the left side of the head, particularly centered over this area surrounding the left ear.

Q. Did you find any dental damage in addition? You mentioned there was some damage to the jaw.

A. I'd have to look at my notes on that to refresh my recollection.

Q. All right. Did you bring them with you to court today?

A. Yes, I did.

Q. Okay, go ahead and look at them, and when you're done please look up.

A. To the best of my recollection there were a couple teeth that were knocked out but I'm having a hard time locating in my report which two it was.

Q. I'll withdraw the question.

A. Okay.

Q. But could you please describe more particularly some of the jaw damage?

A. Well, certainly, yes. The area between -- if you feel along the lower part of your face there's a bump down below your ear where your jaw bone kind of makes a bend. From about the level of that bend, which on this diagram would be probably somewhere about here that I'm outlining with the laser pointer, to close to the middle of the jaw in the front, that whole segment of the lower jaw had been separated from the rest of the bone by a blunt impact to that part of the face.

Q. You stated in your -- that in your autopsy you also found that Mark Fussell had sustained an injury to the right side of his head and neck.

A. Yes.

Q. Could you please use the diagram behind you and describe in more detail what injuries you found to the right side of Mark Fussell's head and neck?

A. Pointing to part of the diagram in the upper left, that shows, the diagram in the upper left, that shows the right side of the face. Starting at the top on the right side of the scalp, above and in front of the ear near the right temple area of the scalp was a triangular scrape on the skin. Just below that there was a tear in the skin. Again above the right ear. There were several areas where the top part of the right ear was torn, and the lower, about the lower half of the outside of the right ear was badly scraped. The back of the ear, it's a little hard to diagram here so I just have a line pointing to it indicating that there was injury at the back of the ear. It was partially torn from the scalp. Not as severely as on the left, but still partly separated. And in behind that there was an additional tear in the skin behind the right ear. These tears were in the two to two-and-a-half inch range in length. And then down on the right side of the neck was another large area of scraping, or abrasion as we technically call it, on the skin.

Q. Doctor, I'm handing you what's been marked People's Exhibit 18 for identification; what is it?

A. This is an anatomical diagram showing back and front views of the face and underlying skull structure.

Q. Do you recognize it?

A. Yes.

Q. Is this diagram a fair and accurate depiction of the human head from a back and front view?

A. Yes, it is.

Q. Did you prepare it to assist you in explaining your testimony?

A. Yes.

Q. You stated that in your autopsy you also found that Mark Fussell had sustained injuries to his face. I believe you state there was an area under his eye?

A. Correct.

Q. Could you please use the diagram and identify in more detail what the external injuries you found on Mark Fussell's face were?

A. Yes. Drawing your attention to the upper right portion, that shows the face. As I mentioned earlier there was bruising resulting in discoloration of the left lower eye and the left cheek bone. That area of the face was broken internally. Didn't show at the surface but you could feel it very easily. Above the right eyebrow there was an area of tearing and scraping of the skin. And also along the front of the neck there were several areas that kind of merged together into an area of scraping of the skin.

Q. During your autopsy of Mark Fussell did you find internal injuries that corresponded to the external injuries you've just described?

A. Yes.

Q. What were those injuries?

A. The injuries involving the head included a fracture at the base of the skull running across the part of the skull that houses the middle and inner ear, so it would be a fracture that would start from the bone at the outside of the ear hole and extend toward the middle of the skull internally. There was also a separation between -- in the joint area between the base of the skull and the very first vertebra, the first spinal bone in the neck. At that same level the part of the brain, the lower part of the brain that communicates with the spinal cord, what we call the brain stem, was completely torn. And there was a fair amount of hemorrhage surrounding the lower part of the brain around that tear. There was also an area of hemorrhage over the brain on the right side above where the fracture at the base of the skull was located. And there was a fracture of the lower spine in the neck between the fifth and sixth segments in the spine within the neck. And then lower down there were --

Q. Let me stop you there.

A. Sure.

Q. I'm handing you what's been marked as People's Exhibit 19 for identification.

A. Okay. Yes.

Q. What is it?

A. This is an anatomic diagram showing the interior surfaces of the top and the base of the skull.

Q. Do you recognize it?

A. Yes.

Q. How?

A. This is a diagram, and which I marked again to assist in illustrating the injuries in this case.

Q. Okay. Is it, the exhibit that you're holding, People's Exhibit 19, is that the same diagram that's depicted in the projection on the wall behind you?

A. Yes, it is.

Q. Okay. Could you please use this diagram to indicate the location where Mark Fussell's skull was fractured?

A. Certainly. The two views here are the inner surface of the skull as if you are inside the skull either looking up or looking down with the brain out of the way. The top part shows what we call the basal surface, the bottom surface from the inside of the skull, as if the brain had been completely removed and you were looking down at the surface on which the brain would rest. And so the right side is on the right side of the diagram. And on the right side there is a faint line that's kind of jagged drawn here that represents kind of the crest of what you might think of as a ridge of bone that houses the delicate structures of the middle and inner ear. And running right along the front edge of that ridge, the dark line represents the fracture where there was a break along the front edge of that bone that extended all the way to, almost to the center of the skull right at the midline. In this area, this little area in the middle actually, if you were looking at it in 3-D, it forms a little depression and that's where the pituitary sits. Just to give you a little orientation. So this ran clear into the middle of the skull from the area about where, on the outside the opening, the right ear would be.

Q. Doctor, I'm handing you what's been marked as People's Exhibit 20 for identification.

A. Yes.

Q. What is it?

A. This is another anatomic diagram showing upper, lower, left and right side views of the brain.

Q. Do you recognize it?

A. Yes.

Q. How do you recognize it?

A. This is a diagram in which I made some markings, again to illustrate some of the injury findings on Mark Fussell.

Q. Is this diagram an accurate depiction of the human brain?

A. Yes.

Q. Could you please -- the projection behind you, is that the same as People's Exhibit 20 which you're holding?

A. Yes, it is.

Q. Could you please explain, using that projection, the area where Mark Fussell's brain was transected?

A. Yes. That would be on this lower left part of the diagram. This shows the under surface view as if you were looking up at the bottom of the brain. And this top part is what we call the cerebrum, the large upper part of the brain. And then there's a smaller, lower part shown down here, that's the cerebellum, the lower parts of the brain. And in the middle here is the brain stem that I'm outlining with the pointer. The bottom end -- and this diagram actually shows about the right level for where Mr. Fussell's area of injury was. This level of the brain stem was completely torn as part of the injury. And then the shaded area, the shading that I added to illustrate the area of bleeding on the surface of the brain surrounding that tear. The bleeding came from the fact that a number of blood vessels that run up through the hole in the bottom of the skull to supply the brain, they run up along this surface of the brain stem; those were also torn in the process.

Q. Could you please explain, using the diagram, the areas where Mark Fussell had hemorrhaging, brain hemorrhaging?

A. Yes. This area would be the -- since you're looking at the bottom you have to switch the directions around. This is actually the left side of the brain because it's flipped over. And so the brain stem itself on the under surface was covered by hemorrhage, as shown here. And the left hemisphere, or the left side of the cerebellum also had hemorrhage covering it. Then in this part of the diagram there's another area of hemorrhage covering the brain. This is on the right side in an area that, I'll use the long word just for technical purposes, that covers part of the parietal and part of the temporal lobe. These would be parts that are involved in either sensation or memory predominantly. And this area of hemorrhage corresponds fairly closely to some of the areas of external injury on the right side of the head, externally around the ear and above the ear, representing the effects of an impact to the scalp and skull that was transmitted directly to the brain and caused some bleeding on the inside as well.

Q. Doctor, you stated that in your autopsy of Mark Fussell you found injuries to his spine as well, or his cervical spine?

A. Yes.

Q. Do you have an opinion as to how the victim incurred those injuries?

A. Yes.

Q. And what is that?

A. Well, these injuries are basically a result, again, of blunt trauma. And they're the types of injuries that are going to occur when there's violent movement of the head relative to the neck. Kind of a whipping back and forth, either front or back or side-to-side, either way. And in this case, given the external injuries, I think it's almost certainly that it was from side-to-side types of impact. There was an injury, as I mentioned earlier, right at the very top where the base of the skull and the top of the spine meet. Those joints were separated internally. Again representing a violent enough impact, and enough force transmitted to the lower part of the skull that the skull moved much more quickly than the top of the spine and they actually became separated, at least on the inside. And then additional bending of the neck resulted in a break lower down that wasn't -- it wasn't a widely separated break but it was just enough to tell there had been some force applied to his lower neck from some sort of violent movement as well.

Q. Is there a relationship between Mark Fussell's torn brain stem and the brain damage of the upper cervical spine?

A. Absolutely, yes.

Q. What is that connection?

A. They are part and parcel of the same type of injury. The same force transmitted through the top of the neck and the base of the skull, that caused the separation of the top of the spine from the base of the skull, was the same force that caused the tearing of the brain stem. And it isn't as if the bone of the spine had to actually creep in and tear across, it's just that you have a lot of violent movement of both the spine and the spinal cord within it that just result in both a fracture and a tear at the same level, at virtually the same instant.

Q. Did you find additional injuries on Mark Fussell lower from his head and neck?

A. Yes, I did.

Q. What were those?

A. He had two fractured ribs on the left. The first and second ribs were fractured at a level where the ribs meet the sternum, or breast bone, right in the front.

Q. Do you have an opinion as to how the victim's ribs were fractured?

A. Yes.

Q. What is that opinion?

A. Again, I think it's a function of a blunt impact, or some wedging-type of effect. He had external injuries on his right shoulder. And if you have the two shoulders trapped and compressed together, that compresses the upper rib cage in such a way that ribs can snap, either in the front or in the back. Because you're taking hoops and you're pushing them from the side they're going to bow out to the front or the back. And in Mr. Fussell's case he just happened to have enough force applied that two of the ribs on the left snapped at the front.

Q. In examining the victim's head and neck did you find any foreign materials?

A. No.

Q. Did you find any foreign materials in any of the lacerations you saw?

A. No, I did not.

Q. Given the nature of the head and neck injuries that you found, do you have an opinion as to whether the victim transferred skin or hair to an object that he came into contact with?

A. Yes.

Q. And what is your opinion?

A. I think it's extremely likely that he would have. The injury in front of the left ear, this large open injury, including the fractured jaw, went through an area of Mr. Fussell's beard, and there was a large scrape around that. And I would expect there to be transfer, at least of some hair from his beard, to whatever object came in contact with that part of his face. On the right side there was an area of scraping up on the scalp that could have also transferred some hair from the scalp.

Q. Given the head and neck injuries that you found do you have an opinion as to what kind of object or objects caused that injury or those injuries?

A. In general terms, yes.

Q. Would you say it's a single object or multiple objects?

A. Well, there would have to be -- there is more than one impact, because we have external injuries on opposite sides of the head. Both sides very substantially injured, including major fractures on both sides. Mandible fracture, lower jaw fracture, the left; basal skull fracture, the right. So basically you have a forceful contact between the head, and on both sides of the head. Some substantial very resistant object, or a very heavy object with a lot of mass, a lot of inertia moving toward the head. One or the other.

Q. Given your examination of the victim do you have an opinion as to whether the victim was moving or stationary when he came into contact with the object that resulted in his injuries?

A. In my opinion he was moving.

Q. What's the basis of your opinion?

A. That's based on historical information about the location he was found, the circumstances of his injury.

Q. Okay. If the victim was moving at the time of his - at the time of injury, and the object he came into contact with was stationary, do you have an opinion as to what speed the victim would have been traveling in order to sustain the types of injuries that you saw during the autopsy?

A. In general terms, yes.

Q. Okay. What is -- what are those? What is your opinion?

A. I would say that the degree of injury in Mr. Fussell's head and neck would easily represent a 15 to 20 mile an hour impact.

Q. What is the basis of your opinion?

A. Experience, comparison with hundreds and hundreds of vehicular accident victims traveling at various speeds with similar levels of injury.

Q. If the victim were seated on a locomotive traveling toward the stationary object when he sustained the injuries you found during your autopsy, would knowing the size or weight of the locomotive be important to determining the speed? Would it affect -- would the mass of the object, or size and the speed work together to determine the types of injuries he sustained?

A. Absolutely, yes, uh-huh (affirmative).

Q. Okay. Could you -- if I told you the victim was seated on a 3,000 pound locomotive traveling towards a stationary object when he sustained the injuries that you viewed during your autopsy, at what speed would he need to be traveling in order to sustain the types of injuries you found?

A. I would say about the same. I would say 15 to 20 miles an hour would be about my best estimate.

Q. Okay. What is the basis for your opinion?

A. Again, it's a very similar sort of situation to an occupant of a motor vehicle of about that same mass, unrestrained, hitting some interior surface of the vehicle at a similar speed with that part of their body.

Q. If the victim had been traveling at a lower rate of speed would that have changed the types of injuries he received?

A. I think to some degree, yes. I think more than changing the type of injury particularly, there would be a change in the degree of injury especially.

Q. Could you please explain that a bit further?

A. Sure. At a lower speed I would still expect there would be some injury to the outside of the body. You lower the speed -- the thing about velocity is that it, the kinetic energy that's carried in an impact, when you double the velocity you increase the kinetic energy by four times. It's a function of the square of the speed. So if you cut the speed in half you've essentially cut the kinetic energy involved in the impact, which is your injury potential, you've cut it by four times. So speed is going to make a significant difference in not just where the injury is, because that's a set-up of how the victim is positioned, where the objects he strikes are positioned and so forth, but the degree of injury could be substantially different at a slower speed.

Q. Could you explain a bit, briefly, kinetic energy? Is that the -- is that force, or could you please --

A. Yeah kinetic energy is a type of force. It's the type of force that is exhibited by objects that are in motion. Kinetics have to do with movement. And it's a function, just by the laws of physics, K equals MV squared is the formula. KE I should say, kinetic energy. M is mass, and V is velocity. So you can arrive at the amount of kinetic energy contained in any given object that's in motion by knowing it's mass and its velocity. And that kinetic energy is then transmitted back into force applied to the body as that body changes from moving to rest. You have what we call a negative acceleration. That force has to go somewhere. It has to be dissipated in some way. If it's dissipated through an impact of the body then the greater the force for a given impact the greater the damage that can be sustained by the body.

Q. And so if you stated that if you double the velocity in an impact that quadruples the kinetic energy?

A. Correct.
 By SCOOP

06/23/2004  9:18AM

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 to do training under part 48 of 30 CFR.

MS. MEJLSZENKIER: You mean the Code of Federal Regulations?

THE WITNESS: Code of Federal Relations 30, which new miners have to have 40 hours of training, and then have to have eight hours of annual refresher training thereafter every year.

MS.MEJLSZENKIER: So was he certified to do the training or he was certified to -- meaning that he had done the 40 hours himself?

THE WITNESS: At one time he was certified to do the training.

BY MR. FILTER:

Q. How do you know that?

A. He told me. So that's my understanding that at one time he was.

Q. Are there records of management -- does your agency have records that would indicate who is certified and who is not certified?

A. The district office may have those records, I don't know if they do or not.

Q. Okay. Do the CFR, or your agency's regulations, identify accountability for safety violations or accidents?

A. Yes.

Q. How is that; explain?

A. The mine management is held accountable, not the individual miners.

Q. And that is consistent throughout the mines that you inspect?

A. Yes.

Q. Do state or federal regulations identify accountability or recourse?

A. Yes.

Q. How so?

A. The Mine Act of 1977 states that the operator is being able, or is -- or he's responsible for the safety and health of his miners.

Q. Let me ask you one thing in view of this series of questions, which is, prior to going to work for MSHA you said that you worked in the industry; correct?

A. Correct.

Q. What did you do in the industry? What was your position?

A. Started out as an underground miner, became an electrician, went into the safety department for a few years, then electrical load dispatcher.

Q. And did those various jobs that you just identified take place in one mine or multiple mines?

A. One mine.

Q. And when you were working there, prior to going to work for the agency, did those jobs -- in having those jobs were you required to understand safety standards?

A. Yes.

Q. Is that something pretty well known through the industry among management as to what the safety standards are and how they are applicable to particular situations?

A. Yes.

Q. What kind of citations was -- what kind of citations were given at the 1700 foot level, and were they corrected?

A. I issued a citation about three-fourths of the way back on the 1700 for an area that an old ore chute had decayed and fallen away, and there were build-up of material that could fall and injure somebody. That area was barricaded. There was -- it was corrected. Back at the bottom of the raise on the 1700 there was a bad ladder; that was corrected. That was the reason they wanted me to go back, that area had been closed under a closure order on August 29th.

Q. This concept of barricade, who is responsible for doing the barricade, the agency or the mine operator?

A. The mine operator.

Q. Now, there's one thing I just want to go back and ask you that I didn't quite understand, is that you raised -- you said that at some point in time that there was a decision made by Mr. Miller and/or Mr. Farrell to close down the 1700 level rather than coming into compliance with what the citations were issued for; is that correct?

A. That's correct.

Q. Could you please just briefly explain what occurred then? And more importantly, when you say closed down -- what I'm getting at is does the operator or the manager of a mine have an option rather than to come into compliance just to simply shut down that section of the mine?

A. Yes, they do.

Q. So you can, if you will, get from under liability by just simply closing that spot to workers?

A. Yes.

Q. What has to be done to reopen that area?

A. It has to be brought up to compliance before any work is done in the area, other than work on compliance.

Q. Okay. When you conduct an inspection do you ask the miners themselves if they have safety concerns?

A. Normally we do, yes.

Q. Is it reasonable to expect all miners to know where all the chutes are located and to duck each time they come to one?

A. I don't believe so, not without prior warning. That would entail that people be alert a hundred percent of the time.

Q. Okay. In the mine that you worked in prior to coming to work for MSHA were those warning devices in place?

A. Yes, there were.

Q. What is the process that ensures after a citation --

JUROR: Ensues.

BY MR. FILTER:

Q. I'm sorry. What is the process that ensues after a citation is issued?

A. Normally the citation is verbally issued, then typed up and the paper issued. The operator then has a predetermined amount of time to correct the situation. The inspector, or an inspector then goes back and checks the compliance and issues a termination of the citation.

MS. MEJLSZENKIER: One more. Do you recall when Michael Miller told you that he was certified as a mine safety and health trainer?

THE WITNESS: No, I don't.

MS. MEJLSZENKIER: You recall what year?

THE WITNESS: Probably in -- no.

MR. FILTER: That's fine if you can't.

THE WITNESS: '99 or 2000.

MS. MEJLSZENKIER: Do you recall if it was before your inspection in September 22nd, 2000?

THE WITNESS: Yes.

JUROR: One more question.

BY MR. FILTER:

Q. Do you know when the 1700 foot, or the 1700 level was reopened after the closure on 9/22?

A. No, I don't. It was barricaded then after that time, and I don't know when they took down the barricade.

Q. Okay. Fair enough. Is there anything else? This last question can't be answered because there's an evidentiary basis for not asking that, so I can't ask it.

MS. MEJLSZENKIER: Any other questions?

JUROR: I've got one more.

THE WITNESS: I may have misunderstood that question. The entire mine was under a closure order for a length of time.

BY MR. FILTER:

Q. I'm sorry, what?

A. The entire mine was under a closure order.

Q. When did that occur?

A. August 29th.

Q. Of what year?

A. Of '99.

Q. The whole mine was ordered closed down? Why?

A. Because they refused to correct the defects in the secondary escapeway.

Q. I guess the next question is probably one that might answer in one way or another. Who closed the mine down?

A. I did.

Q. Okay. In your inspection of the Sixteen to One Mine have any miners expressed safety concerns?

A. None that I specifically remember.

EXAMINATION

BY MS. MEJLSZENKIER:

Q. What is your rapport like with the individuals at Sixteen to One Mine; are you liked?

A. No.

Q. So did you even have any conversations with individuals there where they would come to you and talk to you about any concerns you might have?

A. I don't believe they were -- would have felt free to come talk to us.

Q. When you say "us"?

A. With us as inspectors.

Q. And in particular was your -- how was your relationship with Jonathan Farrell?

A. Fairly good most of the time.

Q. How was your relationship with Michael Miller?

A. Fairly poor most of the time.

EXAMINATION

BY MR. FILTER:

Q. Did you ever get to inspect the secondary escapeway after Mike Miller told you "that's unfortunate"?

A. Yes, I did.

Q. And what were the results of your inspection after Mr. Miller said "that's unfortunate"?

A. The same conditions existed that had existed when the previous inspector wrote citations in the secondary escapeway that the mine had chose not to repair and had chosen to abandon all areas below the 800 level.

Q. Do you recall when that took place, your inspection?

A. It would have -- when?

Q. After Mike Miller said that that was unfortunate. You said you did have an opportunity to inspect the secondary. When was that?

A. Immediately after he said that.

EXAMINATION

BY MS. MEJLSZENKIER:

Q. And the citations that still -- or the conditions that were in violation of mine safety and health regulations that existed on the 1700 level, that were still present when you went back to that area, how long had those citations been outstanding?

A. Three to six months.

Q. And on that date were people in fact working in the area on the 1700 level?

A. They were not on the 1700 that day. There had been a group of outside people, not working for the mine, had been working on the 15, or were working on the 1500 that day, and had been on the 1700 to mark out areas of the mine and were planning to be there the next week, according to them.

Q. And that was during the time that there were still outstanding citations in that area?

A. The citations had been terminated based on the abandonment of that area.

Q. Okay. In reality the people were still going into that area, it was not actually abandoned?

A. That's correct.

Q. And had there not been a claim of abandonment those citations would not have been terminated; right?

A. That's correct.

EXAMINATION

BY MR. FILTER:

Q. Were you present when James Weisbeck performed a reinspection to the chute in question, and do you recall if the citation was satisfactory at that point?

A. Yes, it was.

Q. You were present?

A. I was present.

Q. That's two questions actually. One, were you present; secondly, was it satisfied?

A. Yes.

EXAMINATION

BY MS. MEJLSZENKIER:

Q. It was terminated; right?

A. It was terminated. There was signs painted on it, there were some streamers hanging down.

Q. Were there any advance warnings in front of the chute on that date?

A. No.

Q. Why was the citation terminated?

A. The signs and the streamers probably met the minimum of the standard. The standards don't say it has to be this many feet or -- and it -- I would hate to say why Mr. Weisbeck chose to -- sometimes it's easier to.

MR. FILTER: Go for it. Go for it.

THE WITNESS: It's easier to terminate than to deal with the verbal abuse and the stress when it met the standard, even though it just barely meets.

BY MS. MEJLSZENKIER:

Q. Is it your opinion, based on your training and experience, that this sign, the markings on the chute also constitute advance warning, or that that was simply in order to terminate the citation to avoid a confrontational situation?

A. It would give you advance warning because it was painted bright, and if you saw it out of the corner of your eye you would look.

Q. Would you see it in advance, though, if you weren't facing that direction while you were traveling?

A. No.

Q. Okay. And you stated before that the mine you previously worked at there were advance warning devices; right?

A. Yes.

Q. What kind of advance warning devices were there?

A. There were signs hanging down, or ropes hanging down.

Q. How far in advance of areas of restricted clearance do they hang?

A. Depending on the area. Some areas the trains traveled quite a bit faster than others, and in those areas they would be some distance away.

Q. What is "some distance"?

A. Up to a hundred feet.

Q. And then the areas where people travel more slowly, how far in advance were those advance warnings?

A. They might be ten feet.

Q. Okay.

A. Ten to 20 feet.

Q. But in the mine you previously worked at, where you gained your mining experience, were objects hanging from the chute itself ever considered, or the sole way in which chutes or other areas of restricted clearance were marked?

A. I don't know if they ever were. I'd hate to say they were not ever. It was a huge, huge place. But the normal was a sign or some type of hanging.

Q. So that was the standard practice was something in advance?

A. Yeah. And later on throughout the years they went more to lights, strobe lights, or lighting. When I started there they didn't have much electricity underground.

MR. FILTER: Would you be willing, and think about this before you answer, would you be willing to work as a miner at the 1700 level, or at the 800 level, with the chutes in question?

THE WITNESS: I don't know.

MR. FILTER: I didn't ask the question.

THE WITNESS: I guess that depends on how hungry I was. But they were definitely not correct. And they were not -- the bad part, they weren't repaired after he was given warning.

MR. FILTER: Okay. I don't think that question can be asked, it's vague, so we're not going to ask that question. We can't ask that. Anything else? Okay.

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 this 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. Thank you very much for your testimony.

JOHN PEREZA
called as a witness by the People, having been duly sworn was examined and testified under oath as follows: sworn.

EXAMINATION

BY MS. MEJLSZENKIER:

Q. Could you please state and spell your name for the record?

A. John Pereza, P-e-r-e-z-a.

Q. What is your occupation?

A. I am a mine safety and health inspector for the Department of Labor's Mine Safety and Health Administration.

Q. What's your -- what does your job with MSHA entail? I'm sorry, with Mine Safety and Health Administration?

A. It entails the enforcement of the Mine Act of 1977, including inspections of mining operations for health and safety violations. Additionally, I am an investigator for the western district accident investigation team, which we investigate serious accidents, injuries or fatalities.

Q. Do you have any special training?

A. Yes. I received 16 weeks of training at the Mine Safety and Health Academy in Beckley, West Virginia in regards to inspection activities. Received an additional eight weeks of training for accident investigation, in addition to my 18 years experience as a miner in the industry.

Q. On November 6, 2000 did you go to the Sixteen to One Mine?

A. Yes, I did.

Q. Why?

A. To investigate a death that had occurred on the mine property.

Q. What was the name of the individual who was reportedly dead?

A. I believe the gentleman's name was Mark Fussell.

Q. What if anything did you do when you first arrived at Sixteen to One Mine?

A. When we arrived at the Sixteen to One we met at the main office with Mike Miller and another gentleman whose name escapes me. He was one of the corporate Board of Directors. And I believe there was a gentleman from the Sheriff's Department there as well. Upon our initial meeting --

Q. Were you with anyone?

A. Yes, it was Doug Bowen (phonetic), supervisory mine inspector from the Vacaville field office accompanied as well. After our initial introduction, and Mr. Miller informed us the brief synopsis of what had occurred, we then proceeded to --

Q. What was that synopsis?

A. Just basically that a gentleman had run into a chute while operating a battery locomotive and had caught his head between the chute and the battery locomotive.

Q. Did you go to the location where the fatality occurred?

A. Yes, we did.

Q. At what time?

A. I really don't recall what time. It was in the evening, and I could ball park it at eight o'clock.

Q. Evening is fine.

A. Yeah. Yeah, evening.

Q. Did anyone go with you to that location?

A. There was -- we were accompanied by Mike Miller, and I believe John Barkia (phonetic) was the miner's representative, and Mr. Bowen and the gentleman, the corporate gentleman from Sixteen to One whose name escapes me.

Q. Where was that location?

A. It was on the 1700 level.

Q. And how do you know that that's the location where the fatality occurred?

A. We physically went to the site. It's marked -- if I'm not mistaken, on that level as you get off the landing that level is marked as the 1700 level.

Q. But how do you know that the fatality occurred?

A. We actually went to that site and observed the scene.

Q. So what did you see that led you to believe that was where the fatality occurred?

A. We saw there was a battery-operated locomotive, which was covered with what appeared to be blood and tissue. There was a wooden chute protruding from the edge of the drift which had traces of blood and hair and tissue on it.

Q. What was the lighting like in that area?

A. Well, it was lit with cap lamps to the best of my recollection.

Q. When you say cap lamps, what are you referring to?

A. They're battery-operated lamps that each individual miner would carry on their hard hat, and that was the only source of lighting in the area to my recollection.

Q. Did you see anything on the ground near the chute?

A. There was the victim's hard hat was on the ground near the chute. The lamp cord had been severed. We found out later that that was actually cut during the recovery operation. When they put the gentleman in the rescue basket they cut that off rather than keep it dangling.

Q. Did you see anything else on the ground?

A. Blood and tissue.

Q. Did you see locomotive rails?

A. Yes. Yes, the rails ran down the length of the entire 1700 drift.

Q. Did the chute extend over the rails?

A. Yes. The chute, the bottom part of the chute extended to about mid point of the drift. Center of the rails.

Q. Did you measure the chute?

A. We measured the chute height, and I believe it was 41 inches to the bottom of the chute. We didn't measure from the side. Because of the irregular surface on the drift underground any measurements would have been relative to where they were taken. If it's a spot where there was a deep inset in there, it would have been farther than if we had taken it further out where there was a bump in the drift, then it would have been a different measurement.

Q. Did you see -- you stated that you saw blood on the locomotive?

A. Yes.

Q. Where was the locomotive that you saw?

A. The locomotive, when we arrived, was parked about 50 feet away from the drift. We passed it on our way in towards the chute. The locomotive, however, had been moved two separate times since the accident. The first time was to extricate the victim, he was actually stuck in between the motor and the chute. His partner had to move the machine to extricate the victim. And they used it one final time to transport the victim to the shaft so he could receive medical service.

Q. How do you know that they moved it to transport?

A. We were told that by Mr. Miller and Mr. Barkia, I believe. I don't know if one or the other or both of them stated that, but I think they both agreed that's what was done.

Q. Did you measure the height of the locomotive?

A. We didn't measure the height of the locomotive. The primary reason for our visit that evening was to get preliminary information and to secure the scene. Most of the other information concerning the locomotive and the other particulars would have been taken up by the investigative team that was to come the following day.

Q. Why were you not part of that investigative team?

A. To avoid the appearance of conflict of interest an investigator never investigates an accident that occurs in an area in which they inspect. So anywhere in Northern California, which our office inspects, any fatalities that occur in that area I would not investigate. I would maybe secure the scene, then somebody from outside the area would come in.

Q. I am handing you what has been marked People's Exhibit 9 for identification.

A. Okay.

Q. What is it?

A. This appears to be a map of the Sixteen to One Mine.

Q. Do you recognize it?

A. Yes, I do.

Q. How do you recognize it?

A. I've seen it several times. Any time we go to a mine, an underground mine, one of the things that we do is check to make sure that all the mine maps and escape and ventilation maps are updated on a regular basis and are accurate. And so this is a rather detailed mine. Sixteen to One is one of the more complicated mines so it's a fairly distinctive underground map.

Q. Can you please mark with this yellow colored sticker the location where you went to and saw the chute with hair and blood?

A. Okay. I'm going to have to guesstimate based on several things, one is that day we didn't necessarily -- again, my team didn't necessarily measure the distance from the shaft, and I don't know that this map is actually technically accurate enough; so I can give a ball park.

Q. If you're uncertain -- let me give you two stickers. If you are certain about it being in a range between a certain area could you do that?

A. Well, again, I could, that range would probably be so broad as to be really inconclusive. I mean I could do it. I mean I could say probably I could do it somewhere between this area and this area.

Q. Are you not certain?

A. No. I mean it could be. I know there's some air doors, and I believe it's in the vicinity of air doors. I don't know there may not be several sets.

Q. If you are uncertain then don't.

A. Okay. Yeah, again, at a normal investigation where I'm investigating I would have measured with some certainty. There were -- we did document some surveying tags, that the area occurred near a surveying tag, but we were never able to determine, and I don't know if the follow-up team determined exactly what the significance of those surveyor tags were. They could have been placed there 30 years ago, we don't really know.

Q. So then without measuring the entire thing it would be difficult for you to say based on the map?

A. Correct. It was on the 1700 level somewhere within the first quarter mile, if that's narrow enough for you.

Q. Okay, that's fine. How far from the chute was the locomotive when you saw it?

A. I'm thinking, like I say, about five feet in towards the shaft.

Q. I'm sorry?

A. Towards the shaft.

Q. Okay. The shaft is the shaft -- you mean the 49 winds?

A. Correct.

Q. Okay. Can you please indicate where that is on the diagram?

A. Yeah. That would be the 49 winds coming here. We enter the mine through the 800 level, through the side of the hill, and you go down winds, shaft. Depending on what part of the country you're from that's what you call it, a winds or shaft, and then in on the 1700 level.

Q. Okay. What direction was the locomotive facing when you saw it?

A. The operator's compartment was towards the shaft.

Q. I am handing you what's been marked People's Exhibit 15 for identification. What is it?

A. This appears to be photographs of the chute in question with blood, tissue and hair evident on the bottom corner.

Q. Do you recognize People's Exhibit 15?

A. Yes, I do.

Q. How do you recognize it?

A. These appear to be pictures taken by myself, or Mr. Bowen; we both took pictures. I suppose they could have been -- I see the date is the 6th, so they would have been mine. The secondary team may have taken similar photos, but yeah, these appear to be my photographs of the scene.

Q. Okay. Are the pictures, both the pictures, are each of them fair and accurate depictions of the chute that you saw on November 6th?

A. Yes, they are. Yes, they are.

Q. Could you please indicate -- you identified earlier that you noticed material on the chute --

A. Correct.

Q. -- which appeared to be hair and blood. Could you please indicate with the laser?

A. Oh, okay.

Q. Behind is you projected, if you could please indicate whether that projection is the same as the photo you are holding?

A. Yes, these are the same. And this appears to be this area here on the bottom picture, and this area here on the upper picture.

Q. For the record, the witness has indicated the bottom corner of the chute in both upper and lower pictures. Why did you -- why were these pictures taken?

A. Generally with the first people on the scene, that secure the scene and gather some preliminary information, take pictures and gather, again, just preliminary data so that we can notify headquarters of what occurred and keep them up to speed as far as the scope of the investigation. Just for their information, and also so they can make an informed decision as to what type of personnel to send out as far as any kind of technical or engineering expertise that may be needed in a particular instance.

Q. I'm showing you what's been marked --

EXAMINATION

BY MR. FILTER:

Q. Can I see your pointer for just a second, I have a couple quick questions. Is this area here, all of this, were you taking that with a flash?

A. Yes. Yes, they're flash pictures.

Q. So is that why that appears bright?

A. Correct.

Q. Then in the back up on the photo at the top, you see that white dot there?

A. Yes.

Q. That white dot there?

A. Yes.

Q. And that white dot there? Do you know what those are?

A. Appear to be cap lamps, cap mounted lamps on the individuals standing in the rear of the picture. If you can get a little bit of -- you can see that, I guess, a little bit more of an indication of what the light might be like. The flash is actually probably partially blocked by the chute so it gives a little more of an indication. But yes, it is definitely well lit here due to the flash.

MR. FILTER: Okay. Thank you.

(Whereupon People's Exhibit 13 was marked for identification.)

EXAMINATION

BY MS. MEJLSZENKIER:

Q. I'm handing you what's been marked as People's Exhibit 13 for identification. What is it?

A. That appears to be a picture of a rather handsome MSHA inspector standing next to a chute there.

Q. Is that you?

A. Yes, it is, as a matter of fact.

JUROR: No moustache.

THE WITNESS: Post moustache. That was a picture that I directed Mr. Bowen to take of me standing next to the chute to give some perspective again for the folks in headquarters so they could put some perspective on the scene as to -- we can tell them it was 42 inches high, but this gives them a little better idea what size the drift is, what size the chute is, things like that.

BY MS. MEJLSZENKIER:

Q. In that top picture, are these pictures both fair and accurate depictions of the drift and the chute you saw on the 1700 level on November 6th, 2000?

A. Yes, they are.

Q. The top picture, could you please indicate on that picture, do you see rails in that picture?

A. Yes.

Q. Could you please indicate with the pointer where you see those railing?

A. I believe on the top picture there, I think, is one right there under that foot, and the other one is going right through here.

Q. Why did you take that picture, or why did you direct Mr. Bowen, Inspector Bowen to take that photograph?

A. Again, just so we could get some perspectives as to the height of the chute in relationship to a person. And again, the size, the overall size of the drift in relation to an average person.

Q. In that photograph, that top photograph, are you standing slightly behind the chute or are you even with what to us is the back side?

A. Even with the back side. As an old miner it's never a good idea to stand in front of a chute because you never know what's coming out of it. So, you know, again, so I stood behind it. There's a little bit of maybe a perspective difference, but it's pretty close there.

Q. And then in the bottom photograph are you -- are you also standing a little behind?

A. I think, looking at the bottom photograph, I probably have taken a step back there, and it looks like maybe the photographer has taken a step forward. But yeah, I'm no more than a step or so away there, I believe.

(Whereupon People's Exhibit 16 was marked for identification.)

Q. I'm handing you what's been marked as People's Exhibit 16. What is it?

A. This is picture -- these are two pictures. The top picture is of myself standing next to the battery locomotive. Again taken for perspective so that a person can get an idea, you know, of height ratio of the machine. And the bottom picture shows the seat, which is in the corner of the operator's compartment.

Q. Could you please indicate where the -- could you -- first of all, there's the picture that's being projected behind you. Could you please indicate if that's the same picture that you're holding in your hands?

A. Yes, it's the same picture I have in my hand. Yes.

Q. Could you please indicate with the pointer where the seat is on the locomotive?

A. Top picture, this is the seat, then this is just a little closer view of the seat here. A person would normally sit with his feet in this area facing this side (indicating.)

Q. Are you standing in -- in the top picture, is that you in the top picture?

A. Yes, it is. Yes, it is.

Q. Are you standing right in front of a seat or are you --

A. Yes, I'm standing right at the back corner in this area right here.

Q. Are both of those pictures fair and accurate depictions of the locomotive you saw on the 1700 level of the chute on November 6th, 2000?

A. Yes.

(Whereupon People's Exhibit 14 was marked for identification.)

Q. I am handing you what's been marked People's Exhibit 14 for identification, what is it?

A. These appear to be two more pictures of the chute. And this one, the top one, it maybe even be a duplicate picture of the other, I'm not sure, or one taken from basically the same position.

Q. Are these, are the pictures that are projected on the wall behind you, the same as People's Exhibit 14?

A. Yes.

Q. Are both pictures fair and accurate depictions of the chute you saw in the Sixteen to One Mine on November 6th, 2000?

A. Yes.

Q. And again, first in the top picture, are you standing a bit behind the chute?

A. Yes.

Q. Okay. Do you know how far behind?

A. I would think more than a step, looking at things, and I don't remember exactly how far. But again, the pictures were taken to make a point of reference, so I wouldn't have been too far away from them.

Q. Okay. And then in the bottom picture are you also standing behind the chute?

A. Yes. I believe that one, it actually looks like it's taken from the other side. That one may or may not have been taken as a reference point, I'm not sure, I don't remember that one particularly.

Q. In both of these pictures is the light -- it looks kind of white, bright on the chute.

A. Yeah. Again, that's a result of the flash. You can see in the top photo again the gentlemen in the background there. And in this one you can see back in here, I mean that's the darkness that there is. If everybody turns their lights off you can't see your hand in front of your face in this area, it's that dark.

Q. Looking at the top picture, was this picture taken solely as a point of reference or --

A. Well, point of reference, and to show the tissue on the corner.

Q. And what's the reference supposed to be?

A. Again, the height ratio of the chute. If this is -- in fact, again this looks to be similar to the same one that we looked at before.

Q. The chute in comparison to what?

A. Although it could be, again, the tissue on the corner of it.

Q. Was it meant to show the chute in relation to you standing next to it?

A. I could say for this particular photo, but yeah. I mean if it's the same as the other one, yes. But after looking at it here a little bit I notice that we can't see the third light that was pointed out earlier, and it also appears that this is, you know, probably higher than the 41 inches that we measured on the chute. So it's probably a little bit maybe more to the tissue on the corner of it than for a reference point.

Q. Okay. And you mentioned before that you went to Sixteen to One Mine on November 6, 2000 in order to secure the scene?

A. Correct.

Q. Did you subsequently issue an order restricting access to this area, the area of the 1700 level?

A. Yes. Yes, I did.

Q. Okay. At what time did you leave the scene?

A. I don't have an exact recollection. I think a period of -- we were there for a period of maybe two hours, so I'm going to guess an hour and a half. Probably 10:00 to 10:30. We arrived back in Grass Valley at our motel at maybe midnight, 1:00. So with time to change out and everything, I'm thinking 10:00, 10:30 maybe.

Q. Did you return the following day to Sixteen to One?

A. I believe we did but I don't think we -- we didn't go into the mine, we just returned to the mine office itself.

Q. Okay.

A. And gave them instruction as to when the investigation team would arrive.

Q. I have no further questions.

EXAMINATION

BY MR. FILTER:

Q. Is there a minimum height for a chute?

A. No.

Q. Does it depend on any other factors such as size of drift?

A. Well, again, even with the size of drift there's no minimum. It would be more in relation to whatever equipment process or other things would occur within that area. It's more what we would consider a performance standard. If you have -- you can have a drift that's six feet off the ground, and if your equipment is five and a half feet then you're still going to have a restriction problem. So it's more a product of what equipment or processes are occurring in that area rather than a particular number per se.

Q. What do you -- what do you do with your findings after you inspect an investigation?

A. For a fatality or for a regular, as part of a regular inspection? Because there's a difference.

Q. Give us both, it's not clear to me.

A. After a regular inspection the results of any conditions which are violations of the law are given in writing to the operator and then a report is filed, and that report is normally stored at the district office for a period of three years. With an investigation of a serious accident or a fatality, the accident is investigated, a conclusion drawn, any violative conditions are given, notice is given to the operator in writing again, but the difference here is the report, the final report is assembled, and it is available for public review, both within MSHA offices and on MSHA's web site. We don't necessarily put our -- the material that we use to reach that conclusion, but we have a conclusive report that is produced as a result of the investigation. Where as with a normal inspection, whatever notes and documentation we have, that is the report.

MS. MEJLSZENKIER: On November 6, 2000 were you conducting an inspection?

THE WITNESS: It was not an inspection, it was an investigation. My documentation for that date would have become part of the record which was compiled, and the investigation team would actually put together a report based on information from those documents, but would not necessarily contain all those documents itself.

MS. MEJLSZENKIER: But was your primary reason for being at the mine on that day to secure the scene?

THE WITNESS: I was securing the scene for fatality. Yes, that was the only reason I was there that day.

MS. MEJLSZENKIER: Okay. Any other questions? Okay.

MR. FILTER: Admonition.

FOREPERSON: Whoops. You have a question.

MR. FILTER: Did MSHA, your agency, issue a citation as a result of this facility?

THE WITNESS: I believe there were several issued, yes. I couldn't speak to exactly what those were at this point. I could from memory, but I believe somebody who is going to be here later will.

MR. FILTER: This last question will be asked in detail tomorrow. I don't know whose question it is, but I think the person who asked this question will have that answer.

THE WITNESS: In general there were a couple that were issued and they will be covered probably in more detail tomorrow by the individual that actually issued them.

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 this 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 personal rights are in any way in jeopardy.

THE WITNESS: And thank all of you. It's good work you do here. I know it's a difficult thing that you have to do, so I appreciate all of you being here. Thank you.

MR. FILTER: A couple of things. Mr. Secretary, you're responsible, or Mr. Clerk, you are responsible for making sure that all of this evidence is put in a box, or whatever, in the right order, whatever you have been given so we can put it in a location that's secure. I don't know how, when the jury meets, the grand jury meets, do you guys sit here for one or two days on occasion? Do they lock up this courtroom for you or how does that work?

FOREPERSON: I don't think so. We only meet for a day or less, and there is a more secure location in the basement. But I'm not sure that they lock this room. We can find out.

MR. FILTER: Here's what I thought. I think what I would recommend is to put your books, make sure your name is inside your book on the top. We can put them in that box. I could put them in the District Attorney's Office. Hopefully that's a secure place. Put them in and lock them up for the night. The other question that you need to address among yourselves is we're actually a little ahead of schedule. Remember I said I thought maybe 5:00, 5:30 because we were running a little late. But we have now pulled ahead, and I believe that if we start at 9:00 that you should get this case by 12 o'clock. No later than 12 o'clock. We might go late, go to 12:30. You know, go have lunch, come back and do whatever it is that you need to do. What is your feeling, nine o'clock would be good?

MS. MEJLSZENKIER: Yeah.

MR. FILTER: Is that good for everybody? So let's reconvene at 9:00. I think that's it.

(Jury was admonished was court was recessed at 4:43 p.m. this date.)
 By SCOOP

06/16/2004  2:50PM

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 least your understanding, that from 730 hours, with the exception of the visit by Farrell regarding Fussell showing up late for work, from 730 hours to 12:00 o'clock, Fussell was working alone?

A. Yes, sir, that's my understanding.

Q. During your inspection of the site did you observe chutes in the drift?

A. Yes, sir, I did.

Q. How many chutes did you observe?

A. There are five chutes, with the chute being -- the fifth chute was the one that Fussell contacted.

Q. What were the chutes used for?

A. They're used to pull ore out of stopes, out of raises that are adjoined to stopes up above the 1700 level.

Q. What are the chutes made of?

A. They're made of 3 by 12 wood lagging.

Q. How are they assembled?

A. Like a carpenter would assemble any chute. They're made out of wood, nailed together to form a chute that ore can pass through and go into ore cars.

Q. Was the tram located in the area that you inspected?

A. When I got there the tram was not in the area. It had been; they had used the tram in the recovery of the victim to transport him to the shaft to get him out of the mine; so they had parked it at the shaft station.

Q. During the course of your investigation did you inspect the tram?

A. Yes, sir, I did.

Q. And what was your reason for doing that?

A. We wanted to determine if the brakes and the controller and the mechanics and electricity of the tram was in operable condition.

Q. And what were the results of your findings?

A. We found that the first point of speed in both the reverse and the forward gears was defective in that the controller would not engage at that speed, that it would only engage in the second and third points of contact; thus it would start at a much higher rate of speed.

Q. In your view did that condition pose a risk to the person who operated the tram?

A. With the chutes located in the middle of the drift it contributed to the fatal accident. It had a contributing factor to it.

Q. Did you determine how that defects in the controller developed?

A. It developed over a period of time. It was -- the way that these locomotives are made is they're very -- they're made very well. They're expected to receive a great amount of abuse, and the controller itself has contact points in it that allow the resistance of the battery to be channeled into each speed. And these contact points have to be kept clean, and they have to be greased, and then the resistors themselves have to be maintained in order to allow -- what happens is the same power is always there, and these resistors are preventing that power from building up at the different speeds in a different way. And they allow more power to flow through in the second and third than they do the first; thusly, you get your speed increase. And we determined that at some point in time, and this is something that happens over a long period of time, that the resister itself was defective, and that the control mechanisms and the connectors were dirty and greasy.

Q. This morning you and I had breakfast and I showed you a letter that was dated March 13th, 2001; is that correct?

A. Yes, sir.

Q. I'm handing you what has been marked Exhibit 25. Is that the letter that we discussed this morning?

A. Yes, sir, it is.

Q. And have you looked at that? Have you formed an opinion regarding the validity of that letter as an explanation as to what the defect in that tram was?

A. Yes. I would agree that the resister box did have one resister open, possibly by burning, or defective in other ways. But I agree with his letter that it was not functional in the first gear at the time of the accident.

Q. Okay. Could the accident have caused the defect in the control?

A. No, sir, it could not.

Q. Then it's your understanding, your opinion, that the defect was pre-existing prior to the contact of Fussell's head with the chute?

A. Yes, sir. And the reason I came to that conclusion is that there's a control arm where the battery connects into the controller that is a clamp-type situation that takes two points of contact and clamps them together, that way you can unclamp it, take the battery off and charge it, push that
into a recharger and recharge the battery. What had happened is the week before Steve Sheppert had worked on that connecter and he had failed to rebolt it to the locomotive battery where it belonged, and they had set it up on top of the battery. And at the time of the incident that control mechanism hit the chute also, bending the arm, the mechanism arm, which caused it to separate, thusly allowing the locomotive to stop instead of continuing to run off, because
It could have continued to run off, 'cause there is no dead man on that locomotive, it would not have stopped. And through my interviews with Vincent Kautz and Jonathan Farrell, when Vincent Kautz witnessed the incident he stated
that the locomotive had stopped and it was not running at the time of the incident. In other words, the moment it hit the chute it stopped running, even though it was in the points of contact. Because that disconnect came apart, it stopped the power from the battery to the controller, thus stopped the motor.

Q. And you mentioned a name, Steve?

A. Sheppert.

Q. Sheppert. That had worked on this machine. Did you in your investigation learn what his position was with Sixteen to One Mine?

A. Yes, he's the hoist man/safety person for the mine.

Q. Hoisting. Looking at this device behind you, would it have made a difference on November 6th when Mark Fussell got on that vehicle if the vehicle had been turned around?

A. Oh, yes, it would have made a huge difference, the accident wouldn't have occurred.

Q. What does it take to move that thing around?

A. Well, a one or two ton hoist, whom they have at the battery stations, probably at the most half an hour.

Q. How many people would it take?

A. One man could do it.

Q. In a half hour?

A. In a half hour.

Q. Whose responsibility is it to make sure that the tram is on, correctly positioned on the tracks?

A. It would be the company's responsibility, and the agents of the company, to ensure that the locomotive was situated in a manner that was safe to operate. I've worked at a lot of mines, and inspected a lot of mines with chutes, and this is the first time I've ever seen a locomotive positioned with the driver's back to the chute where every time that he went by the chutes he would have to bend double in order to traverse that area.

(Whereupon People's Exhibit 24 was marked for identification.)

Q. Now, showing you what has been marked as Exhibit 24. Looking at the bottom photo first, do you recognize that photo?

Yes, sir, I do.

Q. What you said earlier in questions I gave you -- if you look at the bottom to the photos behind you, sir, so I can point to it.

A. Yes, sir.

Q. Is that the chute in which Mr. Fussell's head was struck?

A. Yes, sir, it is.

Q. Okay. In other words, this vehicle, as it's positioned, is moving toward the chute; is that correct?

A. Yes, sir.

Q. Therefore, the light that you described in the earlier photo would be towards the bottom of this tram as opposed to being on top; is that correct?

A. Yes, sir.

Q. Now, I'm directing your attention to the photo at the top. You gave us what the measurements of this tram were; correct?

A. Yes, sir.

Q. What was the height from the bottom to the top?

A. It was 48 inches.

Q. Did you take measurements of that chute?

A. Yes, sir, we did.

Q. And what were the measurements of that chute?

A. We took the same measurements as we did on the locomotive; we took it from the rail. That chute is 50 inches from the rail, the bottom of the chute.

Q. Given the measurements of the locomotive, given the measurements of the tram, what was the clearance between the top of that tram and that chute?

Two inches.

Q. Given the measurements of the chute, given the measurements of the tram, given the position of the seat, what position would the operator of that tram have to be in order to clear that chute?

A. Well, he would have to practically bend over with his face almost down on the control arm in order to clear that chute and the other four chutes that were on the drift.

Q. Which way is, in your understanding, given where Fussell was sitting on that tram, which way was his cap light pointed?

A. It would be pointed to the left on the top picture.

Q. So if I understand you correctly, on the left side of that picture there appears to be some pipes; is that correct?

A. Yes, sir.

Q. Is that the way that the light would be positioned on his cap?

A. Yes, sir, it would.

Q. In your opinion, given somebody sitting on that seat, would there be adequate light from the cart to see the impending chute?

A. Not from the location that he started the locomotive there wouldn't be.

Q. Given your investigation, do you know approximately the distance that existed between where the tram was started and where Fussell hit his head against the chute?

A. Well, Vincent Kautz stated that it was close to the chute. After taking the measurements of the locomotive, the length of the distance between the chute and the muck pile, there is no way that he could have been any closer than approximately 20 feet. But Vincent was adamant that he was really close to the chute, so we estimate that he was between three to six feet from the chute when he engaged the locomotive.

Q. In other words, he was next to it?

A. He was close to it, very close to it.

Q. All right. Did you check the clearance of the other 1700 level chutes?

A. Yes, sir, I did.

Q. And what did you find with your inspection of the other chutes at the 1700 level?

A. The only difference between the chutes was the degree at which they came into the drift, but they were almost identical in their measurements and their extension to the drift, less or minus a couple inches. But typically all of them were approximately 48 to 52 inches above the rail, and protruding to the mid point of the rail, all posing a restricted clearance hazard.

Q. How long you work in mines before you went to work for MSHA?

A. Ten years.

Q. And how long you been working for MSHA again?

A. Fifteen and a half years.

Q. In your opinion, given the visits that you've had to other mines, could there have been anything done to those chutes that would have made them less dangerous to the person who was operating the tram?

A. Yes, there's a multitude of things that could have been done. One thing they could have done, and were required to do by law, was to have advance warning of the low clearance, which was not done.

Q. Stop for a second.

(Whereupon People's Exhibit 27 was marked for identification.)

Q. I'm handing you what has been marked Exhibit 27. Could you take a look at that? You recognize that?

A. Yes, sir, it looks like a flashing light for a person walking in the dark, or bikes that need illumination, or other objects.

Q. Could that light have provided adequate advance warning to the chute?

A. Yes, sir, it's one of many items that could have been used by the company to warn of the restricted clearance that was coming in advance.

Q. Show the jury how that works.

A. Just push the button on the back.

Q. Where would you have put it?

A. I would have put it before you got to the chute, on both sides. In a light of this type in that drift you couldn't have missed it. It would have been impossible to miss it.

Q. How much does something like that run?

A. I've never bought one, but I wouldn't think they're more than $20. There's also a multitude of other things that you could use.

Q. What are they?

A. Typically I worked mines where they hung ribbons of caution tape down so when the miner approaches the chute that it has to hit him in the face. You just can't miss it. I've also seen placards hung down on strings where when you go by, it's made out of lightweight material, that your hard hat hits it. I've also seen mines, larger mines that had strobe lights that flashed when you came into those areas that had restricted clearance. And then they would also mark the chute so that you knew that you were getting -- about to pass underneath it.

(Whereupon People's Exhibit 28 was marked for identification.)

Q. I'm handing you now what is marked 28, you recognize what that is?

A. It's a reflector.

Q. What kind of reflector?

A. It's a wide angle reflector kit, appears for a bicycle.

Q. Could that have been used?

A. Yes, sir, it could have.

Q. How?

A. You could have hung that from the ceiling, and then your lights on your tram, and the lights on your hard hat would have reflected, and you would have caught a glimpse of the red warning. And this is also things that are used in
surface and underground mines to provide warning of restricted clearance.

Q. Now, you said that in your investigation you made a determination that when Mr. Fussell started that tram, the distance between -- what would be the distance again between Fussell's head and the chute when he started the tram?

A. It would be anywhere from three to six feet.

Q. Okay. Would those warning lights have helped him given the short distance?

A. That's exactly where the warning lights probably would have been. Typically they're put three to six feet before you get to the hazard. Depending on the speed that the tram, and the type of tram, and the speed that it could reach, he couldn't have got on that tram and not have contacted that, seen that, or been aware of that.

Q. Conspicuous markings; what is your understanding of that?

A. That means so that any person, ordinary person, could tell that was a restricted clearance. And typically the way they mark those is with the universal restricted clearance sign, which is red and white, slanted like a
barber's pole on its side.

Q. How much does something like that run?

A. You could paint it on for $1.50, or you could buy a sign for four or five dollars.

Q. Let's go back to that chute thing. Could the chute have been altered to make it less protruding into the shaft?

A. Yes, sir. I've worked at mines where the chutes were hinged, and the protruding part was retractable, or it could be tied up to the roof allowing the clearance to go away until you needed to pull the ore out of the chute, then
you just go over and unhook the rope or the chain and drop the chute down. I've also seen chutes that were -- would slide out, that you would extend. In other words, it would extend out like a ladder that was an extension ladder. And
then I've also seen chutes that were raised and lowered by hydraulics. So there's multiple of things in this application. With it being a wood chute it would have been practical to have a slide-out or hinged type chute that
didn't protrude out into the drift, and when you needed the chute all you had to do was drop it down, extend it out, fill your ore cars, put it back and move on.

Q. How much does something like that cost?

A. Probably the biggest cost would be when you first built the chute to spend a little extra time and build it that way, or to modify it. I would think that two men and a couple days could have them all modified on that one level.

Q. In your view, if that had been done that would have been a safe area to work?

A. Yes, sir, it would have allowed the operator to miss the chute.

Q. Did you determine the cause of the incident that resulted in the death of Mark Fussell?

A. Yes, sir, the root cause was the failure of the company to mark the restricted clearances and the chutes themselves.

Q. Specifically there were no warnings?

A. Yes, sir, no warning devices anywhere on that drift.

Q. Conspicuous markings?

A. None.

Q. What about the defective tram speed control, that contribute?

A. That contributed, yes, sir.

Q. What about the extension of chutes into the drift?

A. Yes, sir.

Q. Did that contribute?

A. That made it restricted clearance when there was an alternative. My biggest thing with the tram and that whole thing was the failure of the company to have not only a defect that was not corrected in a timely manner, but the company was unable to come up with any records that they even reported defects, which the law requires them to record a defect the moment that it occurs, and to report that to management, even if they fix it on the spot. They have to keep that record until such time, and they couldn't come up with any records that they had ever done that. I was told by Mr. Miller that all defects were corrected by word of mouth and that it was up to the miner to correct his own defects in any way he saw fit. And I found no tags or anything else that they had a program of tag-out of the equipment, once it 14 was defective, to take it out of service. And that's why the violation was written as 57.14100 instead of each of the subsections, because they violated all four of the sections
in that standard.

Q. Did the position of the tram on the tracks contribute to the death of Mark Fussell?

A. Yes, sir, it did. It was putting a miner in a hazardous position.

Q. And your years of experience working for OSHA -- I'm sorry, working for MSHA, in your years of experience in working for mines, how many times have you crossed the situation wherein a chute was sticking into a drift over the middle of the tracks, condition one; two, there was no warning device, there was no conspicuous markings; three, that the position of the tram was on the wrong side; and four, that there was no alteration to the extension of the chutes?

A. None.

Q. Not once in 20 some years?

A. The first time.

Q. No further questions. If you know, what year was the chute on the 1700 level installed?

A. According to Mike Miller they were installed in the 1980's.

Q. If you know, was the muck pile beyond the chute where the accident occurred blocking the secondary exit path?

A. It was a muck pile that the tramer couldn't go 13 through but you could walk over.

Q. How long had the rail been in position at the time of the accident?

A. I don't know when they first opened up the 1700 drift. That mine is so old, it's narrow gauge track. It's been there for a long, long time, as far as the drift itself.

Q. Was the track, was it in the original location or was it re-laid by Sixteen to One?

A. As far as I know the track had always been in the original location.

Q. Going back to your interview with Vincent Kautz, did Vincent say that the locomotive power was off when he got to Mr. Fussell?

A. Yes, he did. And he said that he tried to get the power to go back so that he could push Fussell out from underneath the chute. He had difficulty doing that because of the connecter arm being broken where the battery and the controller connect, and they had to jimmy that. And he tried to push the tram without any power, and he did manage to push it a couple of feet backwards. And then when Steve Sheppert showed up they were able to get the connecter to reconnect and complete that energy that they needed to move the tram. And they were able to move it even further back and take Mr. Fussell back to the flat car and put him on the flat car and then tram him out. But they had to hold that connection together to keep it working while they were headed out to the shaft station.

Q. Does the cart drift for a distance after the operator turns it off?

A. It depends on the grade. Typically those are -- if you had a heavy load behind it could drift, but not very far.

Q. Is there a manual brake to stop the cart accessible to the operator?

A. Yes, sir. We checked the brake and the brake was fully functional and in good condition.

Q. To your knowledge did either Mr. Miller or Mr. Farrell have training certification?

A. They both are what we call MSHA underground instructors for training, and we give them what we call a blue card, which is not a certification, it just says that under part 48 that you can -- you are qualified to give training in underground mines.

Q. I'm sorry, who is the person that had that?

A. Both had that.

Q. All right. If you know, was the chute installed after Mining Act rules were in place that specified chute clearance?

A. The Mine Act came in 1977, that standard came in 1977, they were built in the 1980's. It was three to four to five years after that.

Q. Any other questions?

FOREPERSON: You are 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. Thank you for your testimony.

THE WITNESS: Thank you.

MR. FILTER: What I would suggest doing is I can tell you how you line this up. At this point in time there are no further witnesses, and I'm going to ask that exhibits 1 through 27 -- or 28, I forget which --

SECRETARY: 28.

THE COURT: Be moved into evidence. Is there any problems that you see with moving in Exhibits 1 through 1 28?

MR. PATCHETT: No.

MR. FILTER: That means that they are now properly admitted into evidence; they are indeed evidence.

FOREPERSON: So moved.

(Whereupon People's Exhibits 1 through 28, having been marked for identification, were moved into evidence.)

MR. FILTER: What I would suggest is the following: Let's take about a 15-minute break.

JUROR: Amen.

MR. FILTER: What we will do then is -- this can go either way, but the way that I prefer to usually do it is I'll give you about a 20 or 30 minute closing, and then Mr. Patchett will read you the jury instructions and the case goes to you for deliberation. And as I said, I think last night, you will have this case before 12 o'clock, likely about 11:45. Is that good for everybody, 15-minute break? That would put us right about -- let's make it 10:45. Just one thing. Do you have anything, Denise? Tony?

MR. PATCHETT: No.

FOREPERSON: I am wondering if we can ask you or maybe the Judge about the -- I don't know how to ask the question without maybe saying more than I'm supposed to.

JUROR: Then don't ask him.

FOREPERSON: Maybe I'll ask after you leave the room for a minute, because it's kind of more of procedural.

MR. FILTER: That's fine, we can do that. And I can't guarantee that we can answer it.

FOREPERSON: I understand that.

MR. FILTER: You're picking up on that, aren't you?

FOREPERSON: I watch TV. Fifteen minutes. You're admonished not to speak to anyone about this until we come back to deliberate.

(Whereupon a brief recess was held. Roll call was taken and the following proceedings were held.)
 By SCOOP

06/16/2004  2:49PM

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 individual person, that said person committed the same act or omission, or acts or omissions. The persons who are targets of this proceeding are accused in Count Two of the proposed indictment of have committed the crime of causing death in violation of Section 12 6425(a) of the Labor Code. Any employer and any employee having direction, management, control or custody of any employment, place of employment, or of any employee who willfully violates any occupational safety or health standard, such as California Code of Regulations, Title 8, Section 7010(e)(9-60), and that violation causes death to any employee, is guilty of the crime of committing a violation causing death in violation of Section 6425(a) of the Labor Code. In order to prove this crime each of the following elements must be proved: One, an employer or employee had direction, management, control or custody of any employment, place of employment, or of any other employee; two, that employer or employee willfully violated any occupational safety or health standard or order; three, that violation caused the death to an employee. As used in these instructions the term "employer" means every person, including any public service corporation which has any natural person in service, and all public and quasi-public corporations. The relationship of employer and employee exists whenever the employer retains the right to control or direct how the work shall be done.
As used in these instructions the term "employee" means every person who is required or directed by any employer to engage in any employment, or to go to work, or be at any time in any place of employment. California Code of Regulations, Title 8, Section 7010(e)(9-60), which applies to loading, hauling and dumping in mining, requires where overhead clearance is restricted warning devices shall be installed and the restricted area shall be conspicuously marked. When the evidence shows that a person voluntarily did that which the law declares to be a crime, it is no defense that he did not know that the act was unlawful, or that he believed it to be lawful. Each count charges a distinct crime. You must decide each count separately. The persons who are targets of this proceeding may be indicted for any or all, or either or both of the crimes charged. Your finding as to each count must be stated in the indictment. The purpose of these instructions is to provide you with the applicable law so that you may arrive at a just and lawful indictment. Whether some instructions apply will depend upon what you find to be the facts. Disregard any instruction which applies to facts determined by you not to exist. Do not conclude that because an instruction has been given the prosecuting attorneys or grand jury adviser are expressing an opinion as to the facts.
The prosecutor and the persons who are the targets of this proceeding are entitled to the individual opinion of each juror. Each of you must consider the evidence for the purpose of reaching a decision, if you can do so. Each of you must decide the case for yourself, but should do so only after discussing the evidence and instructions with the other jurors. Do not hesitate to change an opinion if you are convinced it is wrong. However, do not decide any question in a particular way because a majority of the jurors or any of them favor such a decision. Do not decide any issue in this case by the flip of a coin, or by any other chance determination. The attitude and conduct of jurors at all times are very important. It is rarely helpful for a juror at the beginning of deliberations to express an emphatic opinion on the case, or to announce a determination to stand for a certain decision. When one does that at the outset a sense of pride may be aroused, and one may hesitate to change a position even if it is shown that it is wrong. Remember that you are not partisans or advocates in this matter, you are impartial judges of the facts. The integrity of a grand jury hearing requires that jurors at all times during their deliberations conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate, or
expresses an intention to disregard the law, or to decide the case based on penalty or punishment, or on any other improper basis, it is the obligation of the other jurors to immediately advise the grand jury advisor of the situation.
In your deliberations do not discuss or consider the subject of penalty or punishment, that subject must not in any way affect your decision. The instructions which I am now giving to you will be made available in written form for your deliberations. They must not be defaced in any way. You will find that the instructions may be typed, printed, or handwritten. Portions may have been added or deleted. You must disregard any deleted part of an instruction and not speculate as to what it was, or as to the reason for its deletion. You are not to be concerned with the reasons for any modification. Every part of the text of an instruction, whether typed, printed or handwritten, is of equal importance. You are to be governed only by the instruction in its final wording. The law presumes that a person who is the subject of a grand jury hearing is not indictable until sufficient evidence has been presented to warrant an indictment. He or she cannot be indicted unless eight or more grand jurors agree that the evidence presented satisfies the standard of 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 you must find probable cause before an indictment is returned. Probable cause means that each Grand Juror voting to find an indictment is convinced of a state of facts as would lead a person of ordinary caution and prudence to believe and conscientiously entertain a strong suspicion that a public offense has been committed, and that the accused has committed the offense. In other words, an indictment should be returned if the evidence presented, if unexplained or uncontradicted, would warrant entertaining a strong suspicion of the guilt of the accused. If the prosecutor is aware of exculpatory evidence the prosecutor shall inform the grand jury of its nature and existence. Once the prosecutor has informed the grand jury of exculpatory evidence pursuant to this Section the prosecutor shall inform the grand jury of its duties under Penal Code Section 939.7. If a failure to comply with the provisions of this Section results in substantial prejudice it shall be grounds for dismissal of the portion of the indictment related to that evidence. The grand jury is not required to hear evidence of the persons who are the targets of this proceeding, but it shall weigh all the evidence submitted to it, and when it has reason to believe that other evidence within its reach will explain away the charge, it shall order the evidence to be produced, and for that purpose may require the prosecutor to issue subpoenas for the witness. When a prosecutor is seeking an indictment is aware of evidence reasonably tending to negate guilt he or she is obligated to inform the grand jury of its nature and existence so that the jury may exercise its power to order the evidence produced. During deliberations any question or a request the grand jury may have should be addressed to the prosecuting attorneys. Please understand that it may take time to provide a response. Continue deliberating until you are called back into the courtroom. Do not disclose to anyone outside the grand jury, not even to the prosecutors or grand jury adviser, either orally or in writing, how you may be divided numerically in your balloting as to any issue. You will be permitted to separate at the noon and evening recess. You are to return following the recesses on the next succeeding court date. During periods of recess you must not discuss with anyone any subject connected with this proceeding, and you must not deliberate further upon the case until all 11 of you are together and reassembled in the Grand Jury room. At that time you shall notify the clerk or the bailiff that the grand jury has reassembled and then continue your deliberations. You shall now retire and commence your deliberations. In order to return an indictment eight or more grand jurors must agree to the decision and to any findings you have been instructed to include in any indictment you vote to return. As soon as you have agreed upon a verdict, if that be the case, have it dated and signed by your foreperson so that it may be presented to the Court. (Jury deliberated from 11:45 a.m. until 1:15 p.m.)

THE COURT: Very well, the record should show it is 1:15 p.m. and our grand jurors have been at it continually since nine o'clock this morning taking evidence and discussing their decision in the matter. And I am advised that you have reached a decision; is that correct, Ms. Kelley?

FOREPERSON: That is correct.

THE COURT: Let's see, I have a few things I'm going to read again, first to myself. It says here 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 -- and it is true, just for the record, Ms. Kelley, that all jurors, all 11 grand jurors, have been present during all of the evidence?

FOREPERSON: That is correct.

THE COURT: And eight of you have agreed, at least eight of you have agreed in favor of indicting persons for crimes by their names and individual and corporation; is that correct?

FOREPERSON: That is correct.

THE COURT: And you have notified us of the fact that you have reached a conclusion, an indictment has been prepared, and you're going to bring the indictment before you as a formal matter. Do you have it in hand at this time?

FOREPERSON: Yes, I do.

THE COURT: May I have it, please? Thank you, Ms. Kelley. And I'm going to read it to you, ladies and gentlemen. The formal matter as required, and this is on the form stated Superior Court of the County of Sierra. The People of California, plaintiff, vs. Michael Meister Miller, Jonathan Todd Farrell, and Original Sixteen to One Mine, Incorporated, defendants. A grand jury indictment. The grand jury of the County of Sierra, State of California, charges in Count One on or about November 6 of the year 2000 in the above-named judicial district, the crime of involuntary manslaughter in violation of Penal Code Section 192(b), a felony, was committed by Michael Meister Miller and Jonathan Todd Farrell, and Original Sixteen to One Mine, Incorporated, who did unlawfully, and without malice, kill Mark Raymond Fussell, a human being, in the commission of an unlawful act, not amounting to a felony, and without due caution and circumspection. Count Two. On or about November 6th, the year 2000, in the above-entitled judicial district, the crime of willful violation of occupational safety or health standard causing death. In violation of California Labor Code Section 6425(a), a felony, was committed by Michael Meister Miller and Jonathan Todd Farrell, and Original Sixteen to One Mine, Incorporated, who, acting as employer, and as an employee having direction, management and control and custody of any occupational safety or health standard -- pardon me, having custody of any employment, place of employment, of another employee, willfully violated an occupational safety or health standard, to wit, Title 8, California Code of Regulations Section 7010 (e)(9-60), requirement that if overhead clearance is restricted warning devices shall be installed, and the restricted area shall be conspicuously marked, and the violation caused the death of an employee, Mark Russell Fussell. Ms. Kelley, at least eight of our grand jurors have indicated agreement?

FOREPERSON: That's correct, on both counts.

THE COURT: Yes. And we are required, number one, you should take a second vote in favor of adopting the form of the indictment. And it's customary to take a poll of our members of the grand jury just so that whoever reads our record will be satisfied that at least eight of you have concurred. And as we say, we take a vote. So I will ask now how many of our 11 grand jurors have voted in favor of this indictment as to both counts, raise your hand. Nine. Am I correct on that? And two of you folks have indicated -- you did not raise your hand, am I correct on that? Very well. Nine of our grand jury have indicated that they concur in the indictment, and it is appropriate. Our clerk, Ms. Hamilton, will take a poll of our grand jurors now, and she'll ask you in effect if you do concur in this indictment, and kindly answer yes or no as the case may be. Mrs. Hamilton.

THE CLERK: William Adasiewicz, you voted for the indictment on both counts?

MR. ADASIEWICZ: No.

THE CLERK: Darlene Burns, you voted for the indictment on both counts?

MS. BURNS: Yes.

THE CLERK: John Marcantonio, you voted for the indictment on both counts?

MR. MARCANTONIO: No.

THE CLERK: Brian Salego, you voted for the indictment on both counts?

MR. SALEGO: Yes.

THE CLERK: David Serrahn, you voted for the indictment on both counts?

MR. SERRAHN: Yes.

THE CLERK: Ernest Amersfoort, you voted for the indictment on both counts?

MR. AMERSFOORT: Yes.

THE CLERK: Sheila Miller, you voted for the indictment on both counts?

MS. MILLER: Yes.

THE CLERK: Joe Ann Buczkowske, you voted for the indictment on both counts?

MS. BUCZKOWSKE: Yes.

THE CLERK: Mary Moreau, you voted for the indictment on both counts?

MS. MOREAU: Yes.

THE CLERK: Kathryn Kelley, you voted for the indictment on both counts?

MS. KELLEY: Yes.

THE CLERK: Anita McDonald, you voted for the indictment on both counts?

MS. McDONALD: Yes.

THE CLERK: Thank you.

THE COURT: Very well. You are free, of course, right now to change your mind. Does any member of the grand jury, I just say this for the record, because we did use the past tense in polling you, did anybody wish to change their vote? There being no response the answer is no, all nine who voted for the indictment. And I have before me at this time an indictment signed as a true bill by Kathryn A. Kelley, dated October 29, 2002, and this is your signature, Ms. Kelley?

FOREPERSON: Yes, it is.

THE COURT: Very well. Anything further now, gentlemen, that should be done?

MR. FILTER: Just that if we could put for the record that what is being -- what the evidence was so we can put that over to make a record of what's gone on?

THE COURT: All right. Fine. I take it reference by the exhibit number would be appropriate.

MR. FILTER: Yes, Your Honor.

THE COURT: I think, Mr. Filter, why don't you -- it would be appropriate if you did that on the record, thank you.

MR. FILTER: We have exhibits 1 through 26 --

SECRETARY: 28.

MR. FILTER: I'm sorry, 1 through 28. They are in an exhibit book that is being produced, one copy of the exhibit book is being produced. Each of the jurors had a book that identified certain things as the exhibit list, indictment, form of indictment, and foreperson's statement and evidence list, and exhibits. And that book is also being turned over to the Court. And the physical evidence consists of a hat with a light, a set of reflectors, a flashing light, and two poster boards and insert. And we also are turning over the questions that were raised by the jurors, which are all together; correct?

MR. PATCHETT: Yes.

THE COURT: You have a question?

JUROR: When you read the name of the deceased you said Mark Russell Fussell, and his name is Mark Raymond Fussell. I don't know how important that is.

THE COURT: I appreciate you pointing that out, the correct name is Mark Raymond Fussell. If I did make that mistake kindly pardon me, and thank you. All right. Now, I think it would only be appropriate if our grand jurors have anything they wish to add at this point regarding the proceedings.

FOREPERSON: I think we had some general concerns about the inspectors maybe did not address enough of the regulatory issues, or how broad their inspection actually was, and those may be issues that need to be addressed.

JUROR: They didn't follow through.

FOREPERSON: I don't know if we have a right to say that.

THE COURT: You run this thing.

FOREPERSON: Okay.

THE COURT: The question is what do I have a right to say. I meant that seriously. And in this sense, and I tell petty jurors this all the time, this kind of observation is very important to the people who may be presenting the trial in this case, very important. I'm glad you raised that. I think it doesn't affect your decision in the case, the indictment as a true bill has been returned, but it is extremely important and helpful to the attorneys who will present the matter. Thank you. I'm sure they thank you. Yes?

JUROR: I don't know if it's true or not but I heard that, like, the defendants can get a copy of what transpired here and how the votes were and who voted for the indictment and who did not.

THE COURT: My understanding is just the opposite.

MR. FILTER: No, its sealed.

JUROR: It's sealed? All right.

THE COURT: That's very important in a smaller community.

JUROR: You betcha.

THE COURT: That's one of the reasons I like a small community so much. There are a lot of practical reasons for that. I'm sure they heard of you, and I don't have to elaborate. Its a nuts and bolts kind of a thing. Rules follow the nuts and bolts. But I do appreciate your raising that because that is important for all of our grand jurors to know that. Any other thoughts, observations?

MR. PATCHETT: No.

THE COURT: How many of you think -- this is important to me in a way, I always ask jurors and petty jurors if they had a good experience. Has this been a good experience for you?

FOREPERSON: Yes.

THE COURT: I say over and over again if you don't run the government somebody is going to run it for you, so you're doing it, and you have been a super bunch. I'm sure it's been a great experience for all of you. Not so much specifically what you had to do, but the fact that you get together with your fellow citizens and play a practical, useful, important function in the way your government runs. We should get you out here to make speeches and tell them how important it is to do, because it's the kind of people like you that run the country.

JUROR: That's scary (laughter).

THE COURT: I bet you if they had a scare meter here I would be scareder than you. I'm really scared. All right.

JUROR: We still can't talk?

THE COURT: You can talk together but with nobody else.

JUROR: If we leave here and want to say something on the way home to each other?

THE COURT: Don't let it go any further. Don't mention it in a restaurant. This is very significant for the reasons that I just mentioned.

MR. FILTER: Judge, I'd ask that bail be set at 25,000. That is the bail schedule here in Sierra County, I just went in and looked at it, for involuntary manslaughter. I don't know what is additional, I'll leave that to the discretion of the Court. I also ask that arrest warrants be issued.

THE COURT: Warrants will be issued, bail will be 25,000.

MR. FILTER: Thank you very much. Put that corporation in jail, too.

THE CLERK: How do we do that? Are you going to prepare the arrest warrants?

MR. FILTER: I don't know what they do here. I'm sure that Sherry knows how to prepare them; right? Isn't that what you guys usually do?

THE CLERK: Usually.

MR. FILTER: I'll tell her and then I'll tell her to confer with you.

THE CLERK: And then just out of curiosity, when the arrest is made are you proceeding with the cases?

MR. FILTER: Yes, I'll be. Either Denise or myself.

THE CLERK: Okay.

MR. FILTER: One of us will be, or one of my other circuit prosecutors will be up here, at least for arraignment.

(Court was concluded at 1:30 p.m. this date.)

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: Sierra County Grand Jury

JUDGE: Hon. Charles Egan Goff

ACTION: Indictment

DATE: October 28 & 29, 2002
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: November 11, 2002

JUDY BISHOP
Certified Court Reporter
CSR No. 2261

Index

WITNESSES FOR THE PEOPLE

VINCENT KAUTZ
Examination by MR. FILTER

JAMES WEISBECK
Examination by MS. MEJLSZENKIER
Examination by MR. FILTER
Examination by MS. MEJLSZENKIER
Examination by MR. FILTER

GREGORY D. REIBER
Examination by MS. MEJLSZENKIER
Examination by MR. FILTER
Direct Examination by MS. MEJLSZENKIER
Examination by MR. FILTER
Examination by MS. MEJLSZENKIER
Examination by MR. FILTER

BRUCE ALLARD
Examination by MS. MEJLSZENKIER
Examination by MR. FILTER
Examination by MS. MEJLSZENKIER
Examination by MR. FILTER
Examination by MS. MEJLSZENKIER
Examination by MR. FILTER
Examination by MS. MEJLSZENKIER

JOHN PEREZA
Examination by MS. MEJLSZENKIER
Examination by MR. FILTER
Examination by MS. MEJLSZENKIER
Examination by MR. FILTER

EDWARD TIM HURLEY
Examination by MR. FILTER

STEPHEN CAIN
Examination by MR. FILTER

PEOPLE'S EXHIBITS:

Photograph of Mark
EVIDENCE: Miner’s hat, Drawing, Map, Sectional Map, Diagram, Death Certificate, Expert's Report, Flasher, Reflector
 By SCOOP

06/15/2004  4:04PM

8. 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

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