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 Bismarck Dinius hugs his attorney, Victor Haltom, following Dinius' acquittal on a felony boating under the influence charge on Thursday, August 20, 2009. Photo by Harold LaBonte.
THIS STORY HAS BEEN UPDATED
LAKEPORT – Following three weeks of testimony and seven hours of jury deliberation, a Carmichael man was found not guilty on Thursday of felony boating under the influence for a fatal 2006 sailboat crash on Clear Lake.
Bismarck Dinius, 41, received the jury's verdict at about 11:30 a.m. Thursday, not long after the jury had asked to take a morning break.
The trial's nine-man, three-woman jury found that Dinius was not guilty of felony boating under the influence causing great bodily injury. They similarly acquitted him of a misdemeanor count of boating under the influence.
The jury deadlocked on a third count, boating with a blood alcohol level of more than 0.08. The foreperson said the vote was 11 to 1, with the majority believing Dinius was not guilty.
A relieved Dinius hugged his wife, Roshell, after the verdict.
Dinius' case has unfolded over the last two years. He was charged in the case a year after the fatal April 29, 2006, crash, when he was at the tiller of the Beats Workin' II, owned by Willows resident Mark Weber.
The sailboat was under way at night when it was hit by a powerboat driven by Russell Perdock, an off-duty sheriff's deputy. Weber's longtime girlfriend, Lynn Thornton, 51, died a few days later due to blunt force trauma injuries to the head.
Perdock was not charged but District Attorney Jon Hopkins prosecuted Dinius, alleging that he had a blood alcohol level of 0.12 at the time of the crash and that he had failed in his duty to have the sailboat's navigation lights on. Experts presented by defense attorney Victor Haltom maintained the lights were on.
The prosecution had moved forward despite Thornton's family and friends sending letters to the court seeking the charges be dropped.
Jurors reveal their verdict
The jury notified bailiff Dave Jones at about 10:50 a.m. that it had reached a verdict. Judge Byrne had set a half-hour waiting period to let everyone get back to the court before reading the verdict.
The courtroom filled up with community members, district attorney's staffers and several local attorneys who wanted to hear the verdict.
The Diniuses, who had been in Kelseyville, arrived in the courtroom shortly after 11:20 a.m.
Jones warned the gallery that no emotional outbursts were going to be allowed in the courtroom during the reading of the verdicts.
Once Dinius had arrived, Judge J. Michael Byrne came in and asked the counsel to approach briefly before turning to Jones and saying, “All right, let's see what we've got.”
Jones brought in the jurors, some of whom were smiling as they took their seats.
The jury had indicated in its message about reaching a verdict that it had decided on two of the counts but deadlocked on a third.
Noting that they had only deliberated for about a day and a half following the lengthy presentation of testimony, Byrne asked if they had had enough time to come to a decision.
“I don't think time is going to affect it one way or the other. It think we're pretty set in division,” said the female foreperson.
“We made a lot of progress from last night to this morning,” the foreperson explained. “We're just where we're at.”
She added, “We went over it and over it and over it. I don't think we're going to change on that one count,” noting they were “polarized.”
Byrne asked if they needed testimony read back. “Not on this count, no,” the foreperson said.
What about more information on the law? asked Byrne. The foreperson said she didn't think so.
“Is there anything in your mind that we can do to help you?” Byrne asked. The foreperson said no.
Byrne asked the other jurors if they disagreed with the foreperson, or if they needed to hear additional information from any witnesses. There was no response, and Byrne said, “I'm getting that some of you are good poker players.”
He told the jury, “We tried to give you anything we possibly could.”
Haltom wanted to know on which count the jury was deadlocked. Hopkins said he didn't think they're supposed to ask them directly.
Byrne then asked Jones to collect the verdict sheets from the foreperson. Jones took them from her and handed them to the judge.
Looking them over, Byrne then asked Dinius to stand for the verdict as the court clerk read the jury verdict forms.
On count one, felony boating under the influence causing great bodily injury, the jury found Dinius not guilty.
The silent courtroom waited as the clerk read out the verdict on count two, misdemeanor boating under the influence – not guilty.
It was the third count – misdemeanor boating with a blood alcohol level of .08 or above – that deadlocked the jury.
Byrne asked the foreperson what the split was on count three. “I'm curious, anyway, to be honest,” he said.
The foreperson said it was 11 to 1, with the majority voting for acquittal.
The judge said he was satisfied that the jury had reached a point where they weren't going to reach a decision, and he declared a mistrial on the third count.
Byrne then released the jury, telling them they now had the right to speak to anyone about the case.
“You were a very good group to work with,” he said.
He also read them a statute explaining that they must wait 90 days before negotiating or agreeing to take payment for information on the case.
Dinius hugged Haltom and Paige Kaneb, an attorney with the Innocence Project, which supported the case.
As the jurors filed out most appeared to avoid reporters seeking comments. Jurors Lake County News approached would not comment on the case.
However, one of the male jurors stopped and hugged Roshell Dinius.
Once the jury was gone, Byrne asked Hopkins what he wanted to do about count three, which deadlocked the jury.
“I would move to dismiss count three, Your Honor,” Hopkins said.
Byrne told both Hopkins and Haltom that they did a good job on the case.
Shortly afterward Hopkins strode quickly from the courtroom.
After court, Haltom and Kaneb were happy and relieved with the verdict.
Haltom said in terms of twists, turns and the cast of characters, this case “takes the cake.”
Although he said he wasn't surprised by the verdict, he was nervous as court reconvened for the verdict Thursday.
He said that the testimony of Jim Ziebell and Doug Jones, two of Hopkins' first witnesses who said they saw the sailboat's lights on earlier in the evening before the crash, was important. But perhaps the most significant moment in the case for Haltom was when Hopkins didn't call Perdock.
“I think that revealed the merits of the case,” Haltom said.
Kaneb said The Innocence Project has worked with Haltom before, and decided to sign on to the case.
She questioned defense witnesses Zina Dotti and Joe Gliebe in court, helped with research and crafting the closing arguments.  District Attorney Jon Hopkins leaves the courtroom after the verdict in the Bismarck Dinius case was handed down on the morning of Thursday, August 20, 2009. Photo by Harold LaBonte.
Hopkins: Case needed to be prosecuted
Later that day, sitting in his office behind the courthouse and already working on other cases, Hopkins said it was clear the jury grappled with the case, which he realized from the beginning was a difficult one.
The jury also didn't appear to buy the defense's suggestion that they needed to punish Lake County officials, he said.
The issue of the difference between the master and crew, which defense expert Dr. William Chilcott introduced in the case, had no application, Hopkins contended, noting he should have addressed it more carefully.
“My view is that the lights were out,” and that Dinius was responsible, with Weber drunk and not paying attention, he said.
Hopkins said one of his former deputy district attorneys, David McKillop, who handled driving under the influence prosecutions, charged the case. Later, after McKillop left for another job out of county, Deputy District Attorney John Langan was given the case.
In June, Hopkins himself took over the prosecution. He wouldn't outline a specific reason, saying only that it became clear to him that he needed to do it.
He said he believed a lot of fault was with Weber, but Weber couldn't be charged in the case because, according to Hopkins' interpretation of the law, Weber wasn't the sailboat's operator.
Hopkins said there was no evidence that Perdock was drinking, and on the issue of the powerboat's speed, there's no speed limit on Clear Lake, so he can't say Perdock was violating a speed law.
“How do I convict somebody of running into a sailboat with its lights off?” said Hopkins.
In his reading of cases in the Admiralty Courts, which are civil in nature, Hopkins said a vessel with its lights off is the “prime offender.”
If Dinius hadn't been drinking, Hopkins said he would have let the civil court resolve it. He said Dinius had a misdemeanor DUI conviction in 1999 in which he was tested at about 0.14, “so he knows better.”
“I felt like it was a case that had to be prosecuted,” Hopkins said. “Drinking and boating on Clear Lake is a serious issue.”
There haven't been many boating under the influence prosecutions, and Hopkins said an Aug. 8 BUI checkpoint resulted in no arrests. He suggested the case may be having the right impact.
Responding to the criticism about the case, Hopkins said, “I've made a career of not backing away from difficult cases, and I certainly am not going to be intimidated by a publicity campaign.”
He said if he were to back down due to fears of criticism he wouldn't be acting in the public's best interest. Hopkins said he'll continue to prosecute cases in the interest of public safety.
The bottom line, said Hopkins, is this: “If you're intoxicated, you should think twice about getting on a boat.”  Bismarck and Roshell Dinius emerge from the Lake County Courthouse in Lakeport, Calif., on Thursday, August 20, 2009, following his acquittal on a felony boating under the influence charge. Photo by Harold LaBonte.
The way forward
As the courtroom emptied out, Bismarck and Roshell Dinius wept, hugged and kissed.
Ziebell, called by the prosecution as the case's first witness on July 28, came in and hugged Bismarck Dinius; other supporters hugged and congratulated him as well.
With the trial over, the Diniuses and their 12-year-old daughter, Brittany, are looking forward to moving on with their lives.
The couple's relationship has been overshadowed by the case.
They've known each other for five years, but it was just days after the crash that they went on their first date – May 5, 2006, to be exact.
“I told her to run,” said Dinius, explaining that he told Roshell that he was involved in something “heavy.”
“I believed in him, though,” she said.
“She never listens to me,” he quipped.
It was in late April of 2007, around 4:30 p.m. on a Friday afternoon, when Dinius got the call from a local law enforcement investigator notifying him that he was being charged in the case. Originally, he also faced a felony manslaughter charge, which was dropped shortly before the trial.
“I was stunned,” he said.
He didn't know at the time that he was the only one who was charged, and thought if he faced prosecution, others would, too.
Bismarck and Roshell Dinius were married June 21, 2008, right after the conclusion of the hard-fought preliminary hearing, that had begun in late May and then was held over to finish in June. They said they had a “budget wedding.”
Then, this past May 18 – a day before the original trial date – Bismarck Dinius lost his job with Verizon Wireless because of the case.
Dinius hired Haltom after being referred to him by an attorney who handled his civil case in connection the trial. “What a godsend that has been,” said Dinius, who called Haltom “an incredible lawyer.”
After the crash he initially was spooked about sailing. But Dinius soon got back on the water.
“I love sailing. It's my passion,” he said. “And I'm really, really frickin' good at it.”
He said he has no comment on the possibility of a civil case against the county because of the prosecution, but he added, “We'll discuss that, I'm sure.”
He said the support from the worldwide sailing community has been “overwhelming.”
Not only have he and his wife received numerous letters and messages of support, but they're also getting financial contributions to go toward his legal bills, which he estimates to be between $250,000 and $300,000.
He said he's grateful for the financial help. “It's so moving. And it's made a huge difference.”
About an hour after the verdict was handed down, the couple walked out of the court holding hands, as friends and supporters clapped loudly for them, with Haltom following behind.
E-mail Elizabeth Larson at
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. Follow Lake County News on Twitter at http://twitter.com/LakeCoNews .  Bismarck and Roshell Dinius speak with juror No. 4 outside the Lake County Courthouse in Lakeport, Calif., on Thursday, August 20, 2009. Photo by Harold LaBonte.
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That notwithstanding, if what has been reported in the print media and on the internet, as well as what I have seen in Dan Noyes’ reports on KGO-TV, regarding the evidence presented at Mr. Dinius’ felony trial is accurate, it would appear that Mr. Hopkins judgment and discretion in prosecuting Mr. Dinius exclusively may have been significantly flawed. Regardless of Mr. Dinius’ acquittal of the felony charges, the fact remains that Ms. Thornton was killed by an instrumentality exclusively operated and controlled by Mr. Perdock.
Both Mr. Hopkins and Mr. Perdock must almost certainly recognize that until the seven-year statute of limitations on manslaughter runs Mr. Perdock remains in substantial jeopardy. The evidence reputedly admitted at trial appears to unequivocally establish that Mr. Perdock failed to comply with the accepted standards of safe conduct enunciated in the Inland Rules, operated his vessel at 58 mph on an extremely dark night, and failed to utilize his prescription glasses while operating the instrumentality - his vessel - that unjustifiably killed Ms. Thornton.
It follows that the proverbial “reasonable person” may potentially conclude that those circumstances speak for themselves as being negligent, and that Ms. Thornton would not have been killed but-for such operation of that vessel by Mr. Perdock. Accordingly, if Mr. Hopkins is not re-elected in 2010, his successor may potentially review the case and may very well make such an analysis, determining that there is reasonable and probable cause to initiate a prosecution of Mr. Perdock.
The pregnant question is whether the people of Lake County are going to allow someone other than Mr. Hopkins to review that evidence - including the evidence presented in Mr. Dinius’ trial - come June of 2010, and make the decision as to whether Mr. Perdock will be held to answer for the homicide of Ms. Thornton. Given the information presented in both the print and broadcast media during the Dinius trial, particularly by KGO’s Dan Noyes and the Lake County News’ Elizabeth Larson, it may be time for the electorate to figuratively gas-up the outboard and, in the political context, send Mr. Hopkins fishing with Fredo.
Suffice it to say that the negative nationwide notoriety of the Dinius prosecution has resulted in a perception of an abuse of prosecutorial discretion that warrants public scrutiny inasmuch as it has caused discredit to both the legal community and the criminal justice system.
For this reason I would suggest that Mr. Hopkins’ conduct in this case be referred to the State Bar for examination and, if there is a finding of an abuse of prosecutorial discretion, remedial action be taken. Given Mr. Brown’s intransigence, I submit that it is particularly in the public interest for KGO and Mr. Noyes, as well as Ms Larson, to continue to follow-up on this story and confront both Mr. Brown and the State Bar, the regulatory agency charged with the licensure and discipline of California’s attorneys, with an inquiry regarding the propriety of Mr. Hopkins’ conduct in Mr. Dinius’ prosecution, as well as Mr. Hopkins’ refusal to prosecute Mr. Perdock. Moreover, the unjustifiable homicide of Ms. Thornton unequivocally demands it!
Also, given the notoriety of this case, one would reasonably anticipate that the Lake County Grand Jury, in its civil, governmental oversight capacity, will initiate an inquiry into the propriety of Mr. Hopkins’ treatment of both Mr. Dinius and Mr. Perdock forthwith. If the residents of Lake County are as outraged about Mr. Hopkins’ handling of this prosecution as the print media would lead one to believe, it is incumbent upon them to demand such an inquiry be immediately initiated. More importantly, the circumstances surrounding Ms. Thornton’s homicide and the subsequent prosecution of Mr. Dinius would render the failure to conduct such an inquiry an inexcusable dereliction of duty that is inimical to the concept of equal justice under the law.
Thomas Moore is credited with observing that “[A]ll that is necessary for evil to triumph is for good men to do nothing.” To paraphrase Moore, it appears that at this juncture injustice is well ahead on points in Lake County, and the time for action by the citizens of that county, as well as Attorney General Brown, the State Bar of California and the Lake County Grand Jury, is long overdue.