Thursday, 02 February 2023

Judge: DA's Office will continue sailboat prosecution

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Bismarck Dinius, 39, of Carmichael (left) discusses his case outside the court on Friday with his attorney, Victor Haltom of Sacramento. Photo by Harold LaBonte.

 

 

LAKEPORT – A Superior Court judge ruled Friday that the District Attorney's Office will not be recused from prosecuting a case involving an April 2006 sailboat accident.


At issue was whether the District Attorney's Office should be removed from its prosecution duties in the case of Bismarck Dinius, who is accused of vehicular manslaughter and boating under the influence in the April 29, 2006 boating accident in which 51-year-old Lynn Thornton of Willows died.


Dinius, an experienced sailor, was sitting at the rudder of a sailboat owned by Mark Weber, Thornton's fiance, when the accident occurred just after 9 p.m.


The sailboat was hit by a powerboat driven by Lake County Sheriff's Chief Deputy Russell Perdock, who initially told investigators he was going between 40 and 45 miles per hour, according to court documents.


Dinius is being charged for vehicular manslaughter because prosecutors say he was under way without a lookout or operating lights, which are violations of federal navigation code. In addition, blood alcohol tests conducted on Dinius and Weber after the accident showed they had blood alcohol levels of .12 and .18, respectively. As a result, Dinius faces a misdemeanor boating under the influence charge.


Victor Haltom, Dinius' defense attorney, filed a motion with the Lake County Superior Court, asking that District Attorney Jon Hopkins' office be removed because of what Haltom alleged was a close working relationship that would compromise his client's chance to get a fair trial.


On Friday afternoon Retired Judge Robert Crone, filling in for the next few weeks in his old Department 2 courtroom, considered Haltom's motion during a 40-minute hearing.


Before hearing the matter, Crone disclosed that between 15 and 18 years ago, he had performed a marriage ceremony for Perdock and his former wife, Donna, at Konocti Harbor Resort & Spa after the judge originally scheduled to marry the couple didn't show up.


Presenting the case for recusal


Haltom argued that a conflict in the case existed for Hopkins' office because of its necessarily close working relationship with Sheriff Rod Mitchell's office. “Chief Deputy Perdock is the No. 2 man in the sheriff's department,” Haltom added.


He contended that the relationship and an attempt to cover for Perdock already had resulted in an unfair charging decision against Dinius.


Meanwhile, Perdock was not charged for driving faster than conditions warranted, Haltom argued. “Any rational observer would think this guy is the prime suspect in this case.”


Haltom argued that most of the case investigation had been undertaken by Hopkins' and Mitchell's offices, with some assistance from the Sacramento County Sheriff's Office.


He claimed that if Hopkins charged Perdock with the same offenses Dinius is facing, he “would risk jeopardizing a necessary good working relationship with the sheriff's department.”


Haltom referenced a document he included in his motion in which he said that Perdock said all the sheriff's investigators working the investigation were “beholden” to him. “That's an aspect of the conflict here,” Haltom said.


Based on those relationships, Haltom accused the sheriff's office of burying evidence favorable to Dinius and unfavorable to Perdock. He cited a conversation that he said took place between Deputy Lloyd Wells and Doug Jones, who claimed he saw the sailboat under way with its lights. Haltom said Wells told Jones, “You must be wrong.”


Hopkins has stated publicly that there are no witnesses who have claimed to see the sailboat's lights, but Haltom argued that there are nine people – out of a total of 16 witnesses – who claim to have seen lights. He accused Hopkins is pursuing the case with “tunnel vision.”


In addition, Haltom claimed that one witness, Hans Peter Elmer, a retired law enforcement officer, made three 911 calls after the accident occurred but no sheriff's investigator contacted him for a statement.


Although Haltom claimed there was a a “plain, palpable” conflict of interest in the case, he added of the District Attorney's Office, “I'm not saying they're intentionally doing anything wrong.”


Attorney General's Office responds


Deputy District Attorney David McKillop didn't argue against Haltom, instead deferring to Gerald Engler of the state Attorney General's Office, who accompanied him at the prosecution table.


“The law requires the defense to serve a copy of this motion to the attorney general,” Hopkins told Lake County News after the hearing. “If the motion is granted, the attorney general takes over the case,” and thus they have a say in the response, he said.


Engler told the court that the Attorney General's Office opposed the motion to recuse Hopkins' office.


“As we see it, the motion focuses on what the defense believes to be a deficient investigation,” said Engler, adding that the issue is irrelevant to the conflict.


Rather, it's important to establish that the case won't be handled in a fair manner, which Engler said Haltom failed to show.


Engler said Haltom bears the burden of proving that the conflict exists and has affected the case. He said Haltom's motion included several factors relating to Perdock's involvement, none of which Haltom proved, Engler said.


As to the idea that in rural counties district attorneys and sheriffs are too closely aligned, Engler referenced a case in Tuolumne County where the district attorney actually removed the sheriff from office.


In that case, a small county was able to set aside relationships among departments, said Engler. “We have to recognize the same is true in this case.”


Engler said the Attorney General's Office has considered this case twice – once at Hopkins' request, and now because of a recent request by Mitchell.


The Attorney General's Office saw no reason then or now to disqualify Hopkins, Engler said.


He also challenged Haltom's motion, which included more than 20 pages of Internet blogs on the case, which Haltom claimed were a sign of the public having lost faith in the prosecution and investigation.


“It's astonishing to me that any motion could be granted on the basis of public sentiment,” said Engler.


In response, Haltom said there is a “duh” factor in this prosecution, with the wrong man being charged.


He said to deny that there is a close relationship between Perdock and the District Attorney's Office is to deny reality.


Haltom added, “This is a darn weak case against Mr. Dinius,” compared to what he stated was a strong case against Perdock.


Judge explains his findings


In rendering his decision, Crone cited the requirements of Penal Code section 1424, under which Haltom filed his motion, which requires documents contain information including date and location where they were executed. Crone said the documents technically were deficient, as they lacked the location.


“I'm going to overlook that,” said Crone, moving to discuss the merits of the motions.


He said he disregarded the Internet blogs, most of which were written by anonymous people, because he said they didn't qualify as evidence in a judicial setting.


Crone said the motion couldn't be granted unless a conflict was successfully proved.


“The court concludes that there is no conflict,” said Crone.


Explaining that the district attorney and sheriff both are elected officials who have separate responsibilities, Crone said a conflict could have been proved had Perdock been Hopkins' employee rather than Mitchell's.


“There just is no conflict here,” said Crone.


He referred to the conflict in evidence, specifically, the split in witnesses who said they saw lights on the sailboat versus those who didn't.


“Quite frankly, that's not unusual in most cases, that there is a conflict in evidence,” said Crone, adding that most court cases center on exactly that conflict.


Crone asked Haltom and McKillop for dates for a conference prior to a preliminary hearing.


Haltom waived time for a speedy preliminary hearing, noting, “My investigation is ongoing.”


Crone also asked Dinius for his plea in the case, to which Dinius replied, “Not guilty.”


The case will return to court for the conference at 1:30 p.m. Oct. 5.


Following court, Engler said the Attorney General's Investigative Branch is now reviewing the sheriff's investigation at Mitchell's request and added that, to his knowledge, the agency plans to make no further appearances in local court on the issue.


Haltom said after court he isn't finished arguing the matter. He said he plans to ask for an appellate review of Crone's decision.


He said he also hopes the Attorney General's Office will look closely at the case.


Dinius told Lake County News that the prosecution has put his life on hold.


While he said he's surprised by the publicity surrounding his case, “It's kinda nice to see the truth is coming out.”


He said he still sails, although it was tough going back to it at first. “That was very hard to get back up on that horse.”


Dinius said he often came to Lake County to sail in the annual Konocti Cup race before the accident. He said he had heard that corruption existed in the county but only now was seeing it “firsthand.”


Still, Dinius said he likes the community. “Hopefully, this case sheds some light on some things that are happening here.”


Hopkins, Mitchell respond to allegations


Hopkins said in a Friday afternoon interview that he is concerned that Haltom's attempt to use Internet blogs as part of his motion filing is a way of preconditioning the local jury pool.


It's important to make decisions based on facts, not opinions, said Hopkins. “Which is exactly why we have a jury trial rather than a media trial.”


The decision not to recuse his office was the right result, he said, with there being no valid grounds for recusal.


He said he asked the Attorney General's Office to look at the case in the early for their opinion on whether he should not prosecute the case. “They're the experts in this field, which is why I consulted with them quite some time ago.”


Because of that, Hopkins said he expected today's outcome.


“Our goal as prosecutors is not to win this case in the media but to get a fairy jur and have it determined in that way,” he said.


For his part, Mitchell responded to Haltom's allegations against his department by saying, “Attacking law enforcement officers is a standard tactic employed by defense counsel, so I am not surprised by that.”


He added, “I will allow the findings of the attorney general's staff to speak for the credibility of my department and the impartiality of our investigation.”


Contrary to Haltom's claims about Perdock's influence, Mitchell said Perdock does not give promotions or pay raises; those responsibilities belong to the sheriff and the county, respectively.


Mitchell said that Perdock does not manage the Boat Patrol Division that conducted the investigation.


In law enforcement, credibility is key to performance, Mitchell said. “We don't keep anyone with credibility issues any more.”


Haltom's tactic, said Mitchell, is to lump all of his staff together and attack the entire department. “I don't believe that that type of stereotype resonates with the citizens of this county.”


Despite the controversy the case has stirred, Mitchell said he continues to receive a show of support from area residents, many of whom he said approached him at the fair parade Thursday to express their support.


The case has stirred passions on both sides, said Mitchell. There also are people who have not taken a stand on passion alone. “It is for those people and my staff that the attorney general's review is most important,” he said.


E-mail Elizabeth Larson at This email address is being protected from spambots. You need JavaScript enabled to view it..


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