December 14, 2018 

CDAA Renews Sixteen to One Investigation Via Grand Jury - Mountain Messenger

DOWNIEVILLE—In July, Sixteen to One mine CEO Mike Miller and mine manager Jonathan Farrell were arrested and formally charged with felony responsibility for the death of miner Mark Fussell.


Fussell was killed in a mine accident in November 2000.

The charges were brought by the California District Attorneys Association, a private organization contracted to the California Department of Labor Relations, under the color of Sierra County District Attorney Sharon O’Sullivan’s authority.

Last week, Miller and Farrell were surprised to receive letters from CDAA lawyer Gale Filter informing them he and Sierra County’s Grand Jury are conducting an investigation into the death of Fussell.

Added to the list of “suspects” has been the Original Sixteen to One Corporation.

“It beats the hell out of me,” Miller told the Messenger. “I was under the impression he (Filter) already swore he had done an investigation.”

“Meanwhile, this thing is dragging on forever. The mine itself has suffered hugely from these ridiculous charges; who’s going to loan money or buy into a corporation whose management is accused of felony misbehavior? I can’t believe the law can be used this way with nobody being held accountable.”

This very unusual introduction of the Grand Jury has evidently trumped the scheduled preliminary hearing. Local legal authorities were divided in their opinions whether a preliminary hearing is still required after a grand jury indictment.

Despite being responsible to “the people,” Filter refused to discuss the matter with The Messenger.

A phone call to District Attorney—elect Larry Allen informed us that a relatively recent amendment to the state constitution rescinded the accused’s right to a preliminary hearing following a grand jury indictment.

Despite the adage that “any prosecutor worth his salt can get a grand jury to indict a ham sandwich,” both the grand jury process and preliminary hearings were designed as a “laugh test” for a criminal complaint against a citizen. In both processes, the prosecution presents its case; in the former to the Grand Jury; in a preliminary hearing, to a judge.

The process is not designed to hear the defense, but merely to determine if the charge is sufficiently substantial to merit further legal review, i.e. a trial.

Using the Grand Jury process, the prosecution is required to make the panel aware of any evidence indicating the accused’s innocence. Filter’s letter to Miller, dated October 16th, gave Miller a 48-hour deadline to provide such evidence.

Nevertheless, a grand jury has authority to subpoena any witness it feels necessary, including a defendant.

Both Miller and Farrell had been preparing for the scheduled preliminary hearing. The two days had passed before the pair could consult legal counsel.

“I sure don’t know what’s going on,” Miller said. “I mean, this guy’s asking us to trust him to present our evidence? What kind of job is he going to do? I’m not sure we want to give away our defense at this stage.”

A preliminary hearing is held in open court; a grand jury meets in secret session. If the grand jury opts to indict, its records are then opened. If not, the prosecutor’s statements are never made public.

Inasmuch as convening a criminal grand jury is unnecessary, veteran lawyers believe the motivation for the process is almost always political.

Several years back, Nevada County District Attorney Mike Ferguson convened the grand jury rather than pressing charges against a Sacramento police officer who shot and killed an unarmed man in Penn Valley. Since the grand jury did not indict, the public is prevented from knowing what was actually presented to the panel, and Ferguson does not have to explain any decision regarding a prosecution.

The reason for the convention of Sierra County’s grand jury remains a matter of speculation.

Some suggest it is CDAA’s severe embarrassment at having charges against a Woodland farmer rejected in a preliminary hearing that prompts the change of tactics.

Others believe CDAA is trying to spare D—elect Allen, a former CDAA attorney who will almost certainly be sworn in before the Sixteen to One case has a final disposition, potential political embarrassment with the inherited case.

Yet another scenario has CDAA attempting to make its actions fit its obligations. CDAA’s contract with the Labor Department requires a rural District Attorney to first request CDAA assistance. In the Sixteen to One case, CDAA brought a fully prepared criminal case to District Attorney O’Sullivan, seeking authorization to prosecute. Having done this work outside the protection of legal status, CDAA attorneys may be trying to protect themselves from legal action.

It was evidently this line of inquiry that prompted Miller to contact the Grand Jury in September, filing a complaint against D.A. O’Sullivan for mis-feasance.

Miller was somewhat rudely ignored, spending several hours in the hallway waiting to articulate his complaint before being told in passing by a grand juror leaving for lunch the panel wouldn’t have time to listen to him.

The grand jury has yet to entertain Miller on that issue.


Don Russell

Editor, Mountain Messenger


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