Outside Prosecutors Feel Urban-Rural Rift

The goal was to crack down hard on what appeared -- in the most egregious cases -- like a callous acceptance of death on the job in rural California.

The Sacramento-based California District Attorneys Assn. dispatched circuit-riding prosecutors to remote counties to help bring felony cases against employers whose “willful negligence” had killed or maimed workers.

But accusing respected businessmen in rooted and inherently dangerous rural industries of manslaughter has proved tough.

Four years after the effort began, several of the cases have fizzled before judgment or ended in acquittal, underscoring deep cultural rifts that divide urban and rural California.

Now, one of the targets is striking back: Michael Meister Miller, 62, chief executive of Sierra County’s Original Sixteen to One gold mine, is taking the prosecuting attorneys to court.

Miller and his former mine manager, Jonathan Farrell, 34, were indicted on felony manslaughter charges in 2002 after a worker crushed his head on an unmarked low-hanging ore chute. But after Miller argued that exculpatory evidence was withheld from a grand jury, a Sierra County Superior Court judge tossed the case with little comment.

Miller and his company are now alleging malicious prosecution, intentional interference with the mine -- in operation for more than a century -- and infliction of emotional distress.

Prosecutors are generally protected from suits that pertain to their actions on the job. But a technical slip has kept the claims alive, for now: Although Sierra County’s then-district attorney orally appointed the visiting prosecutors as deputy district attorneys and filed records of their oaths with the court, written appointments were not filed with the county clerk as required by law.

That has given Miller a chance to vent his rage. It has also offered a glimpse at the uphill battle the prosecutors face in rural areas as they seek to apply a new law and bring blue-collar bosses to justice for accidents that often occurred outside the bosses’ presence.

State law allows for such felony cases. But support from juries and even judges in places where men have long made a living on the land has been thin at best.

“We’re talking about areas where the fit between the cultural values of rural communities and the administrative state is neither comfortable nor acknowledged,” said UC Berkeley criminal law professor Franklin Zimring. “California isn’t a state; it’s a country with very different regions.... We have our own Appalachia. This is a marvelous illustration of that.”

To Miller, the circuit riders are “carpetbaggers” on a “rural cleansing” campaign who had no place plying their trade in his tiny mountain county.

“They painted a picture of a careless irresponsible guy running a loose, leaky ship and not caring for his employees. That’s just not the case,” he said. “There’s a duty to a private citizen like me to not have a hanging party.”

Miller faults the miner, Mark Fussell, for his own death. His duties were to prepare an inactive tunnel 1,700 feet below ground for mining -- and that meant sawing off or marking overhanging chutes. Distracted by personal problems, Miller said, Fussell backed his battery-operated locomotive into the chute and paid the price. Neither Miller nor Farrell was present.

The lawsuit, filed last year by Miller and the company, alleges that prosecutors were never entitled to work in Sierra County, withheld evidence that would have cleared Miller and Farrell, caused the publicly traded company’s stock to plummet, and destroyed Miller’s reputation in the community.

Miller also says the criminal case was based largely on federal citations that he was still contesting.

“He’s been stigmatized as an irresponsible screwball,” said George Gilmour, the attorney representing the company; Miller is representing himself. “It’s just his life, his reputation, his sense of self [at stake]. He’s looking for some absolution here.”

Circuit prosecutor supervisor Gale Filter, who is named in the suit along with the California District Attorneys Assn. and three other attorneys, declined to comment. So did Thomas Knox, the lawyer representing them.

But in court filings, Knox said the prosecutors were clearly operating under the authority of then-Sierra County Dist. Atty. Sharon O’Sullivan and were entitled to immunity, even if some paperwork was not properly filed. O’Sullivan -- who no longer practices law -- swore the deputy district attorneys in, offered them office space, and was named in all filings and correspondence as the supervising attorney. The California District Attorneys Assn.’s worker safety program was launched in 2001, under contract with the state Department of Industrial Relations, which reviews workplace deaths and serious injuries. The goal is to provide specialized prosecutors at the request of rural district attorneys whose resources and expertise in labor law are thin.

The team was modeled on a crew that helped rural counties successfully prosecute hundreds of environmental crimes. The prosecutors relied on a 2000 state law that elevated to felony status workplace negligence formerly punished with administrative citations or misdemeanors.

Miller’s case was one of just a handful that had been filed in rural counties under the law. The hard-rock gold mine near the central Sierra Nevada town of Alleghany got its start in 1896 and once produced some of the state’s densest gold concentrations. But yields in its 27 miles of dank tunnels dropped as the industry declined and hard times withered the mine’s once-bustling workforce.

Miller has had a history of run-ins with state and federal regulators, who had cited the mine more than 180 times in the decade before the accident for faulty escape routes, broken ladders, improper storage of explosives and more.

Shortly before Fussell’s death, federal regulators cited the mine for not marking a similar low-hanging chute, later giving prosecutors the evidence they felt they needed to prove a “willful” violation.

Miller and Farrell reacted with hostility to the citation, saying miners knew where the chutes were and ducked to avoid them, federal Mining Safety and Health Administration Inspector James Weisbeck told grand jurors.

“It was very confrontational,” Weisbeck testified. “It was a tough, hard thing to deal with their frustration, their anger, to get them ... to do something.”

The accident occurred three months after the federal citation was issued. Miller and Farrell were indicted.

Then, in early 2003, a Sierra County Superior Court judge dismissed the case. Apparently working in Miller’s favor: Grand jurors had not been informed that a state inspector had visited the accident location shortly before it occurred and did not note any hazards.

Sierra County residents reacted with relief. At the Rotary Club and in the streets, people called the prosecution “a waste of time and money,” said current Dist. Atty. Larry Allen, who declined to refile the case against Miller.

“This is a resource-based economy, or was -- and mining and logging are inherently dangerous professions,” he said. “People thought, ‘We’re going to be next.’ ”

It was not an isolated defeat.

The team’s first case, against a Yolo County farmer, never made it through a preliminary hearing, at which a judge determined there was no evidence of criminal negligence. Last fall, a Merced County dairy owner was acquitted by a jury of all charges in a case that left two workers dead after they were overcome by hydrogen sulfide fumes and drowned in a manure pit.

That defeat prompted Merced County Dist. Atty. Gordon Spencer to decline to file charges in a similar death.

Filter, who heads the circuit prosecutor program, points to some successes: A Butte County business owner pleaded guilty and received a year’s jail sentence in connection with a gas tank explosion that left a worker badly injured. The foreman in the manure pit case also pleaded guilty in exchange for three years’ probation.

“In the grand scheme of things, this is new law,” said Filter, who notes that the prosecutions have raised awareness about hazardous work conditions in rural counties. “I believe we’re on the right track.”

But even the guilty plea by the dairy foreman would later be eroded by a sympathetic judge: Following the owner’s acquittal, the judge cut the foreman’s probation in half, calling him a “good man” who “acted reasonably,” the Modesto Bee reported. His felony conviction will be reduced to a misdemeanor if he completes probation.

Zimring said prosecutors could be setting themselves up for failure by pursuing felonies without giving jurors a chance to convict on lesser misdemeanors. That’s problematic as prosecutors file charges against well-respected community members who weren’t at the scene of deaths or injuries, he said.

“I think it was Justice [Oliver Wendell] Holmes who said even a dog can tell the difference between an accidental and intentional kick,” Zimring said.

“You have the attempt to elevate negligence to a felony, and that goes against citizen instincts. The law says you can. But the communal instincts are such that without any intention to do wrong or to risk death, there are inhibitions.”