LAKEPORT – A judge has turned down a proposed gag order in the case of a Carmichael man being prosecuted for a fatal 2006 boating collision.
In a Friday morning hearing visiting Judge J. Michael Byrne chose not to grant Deputy District Attorney John Langan's request to institute a protective order in the case of Bismarck Dinius, which is scheduled to go to trial May 19.
Dinius, 40, is accused of felony vehicular manslaughter with a boat and boating under the influence for an April 29, 2006, sailboat crash.
He was at the tiller of a sailboat owned by Willows resident Mark Weber when it was hit by a power boat driven by Russell Perdock, an off-duty sheriff's chief deputy. Weber's fiancée, Lynn Thornton, was mortally injured in the crash and died a few days later.
In court on Friday were Langan; Dinius' defense attorney, Victor Haltom; and attorney Deputy County Counsel Ryan Lambert, representing the Lake County Sheriff's Office, which has records being sought in the case.
Phoning in was attorney Michael Miller of Perry Johnson Anderson Miller & Moskowitz, a Santa Rosa firm representing former Lake County Sheriff's Sgt. James Beland, whose records are being sought in the case. Beland's attorney, Scott Lewis, was unavailable for the hearing.
Before the discussion of the gag order, the court took up several other issues.
“I need to place on the record our objection to having this hearing today,” said Lambert, explaining the sheriff's office hadn't received notice of the hearing until May 1, and should have been given at least 16 days plus an additional two days for service.
Miller, who received notice on May 3, also objected due to the shortness of time, and asked to have the matter put back to the end of the month. He noted that Beland is objecting to having his records released.
Langan said that new evidence in the case had arisen in the past few weeks. “The people feel there is going to be material evidence in the personnel files of former Sgt. Beland that the people are going to need access to prior to the trial.” Other issues, which he did not specify, also have come to light.
He said if the prosecution didn't have release of the materials granted on Friday with a Pitchess motion, he would seek to have the May 19 trial date vacated.
Haltom stated that he was opposed to any continuance.
Lambert said the sheriff's office wasn't attempting to be obstructionist, but wanted to prepare to argue its case against releasing the documents. Byrne said the sheriff's office had a legal right to prepare, and that officers' personnel files have been protected both by right to privacy rules and legislation.
Byrne agreed to reschedule the hearing on the personnel records, saying it shouldn't pose a major delay. “This could be very relevant evidence and very important evidence.”
New information and the protective order
Langan requested to speak with Byrne and fellow council in the judge's chambers, where they retired for about a half-hour.
Once back in the courtroom, Langan made a verbal motion, which he said he would follow up with a written motion, to request that the May 19 trial date be pushed back.
“We have information that I believe now puts the burden on us to obtain the personnel records of former Sgt. Beland,” he said.
That new information includes new statements that people have come forward with relating to the activities of a material witness on the date of the boat crash. Langan said the District Attorney's Office needs to have time to examine that information.
He said he's talked to investigators, who haven't yet had time to look into the material. “They have told me it's going to take a considerable bit of time to sort through the information we've received.”
Langan apologized for the lateness of the request, adding “we just got the information last week.”
Haltom reiterated his opposition to postponing the trial date, saying they've already begun subpoenaing out-of-state witnesses. “We're opposed and ready to go.”
Langan said he believed Haltom had entered a time waiver at a July 28, 2008, arraignment. Haltom responded that he was pulling the waiver. That would mean that the trial would have to start by July 7 at the latest.
During the hearing, Langan suggested some changes to the language of certain court documents. He also sought to remove language in the counts against Dinius that stated he had failed to exhibit lights on the side of the boat and had failed to have a lookout. Regarding the lights, Haltom called it a “superfluous accusation” since the boat wasn't equipped with side lights.
Lastly, they discussed Langan's proposed gag order.
“We are not requesting any order that pertains to the media,” said Langan.
However, he did ask that the judge make it clear that the parties, attorneys and witnesses in the case not discuss trial strategies or possible outcomes in the media, given that a trial date had been set.
He said both sides are entitled to a fair trial and it's going to be difficult to find unbiased jurors in the case based on the amount of coverage the case already has received. Langan said he didn't think it was unreasonable to ask all parties involved to limit their conversations with the media.
Allowing discussions in the press regarding trial strategies “is dangerous to the idea of getting a fair and impartial jury in this case,” said Langan.
Haltom said he has, and will, continue to comply with the ethical constraints the law imposes on him.
In his 93-page objection to the motion, Haltom said Sheriff Rod Mitchell and District Attorney Jon Hopkins “have repeatedly publicized their views concerning this case. They have issued press releases, posted materials on the Internet, given televised interviews, and given interviews to the print media. Now, however, the district attorney’s office asks this court to impose a 'gag order.' In a brief that fails to specify any factual basis or legal justification for a gag order, the district attorney’s office broadly requests “an order prohibiting discussion of this case in the media ...”
“With respect to defense and prosecution relations with the media, nothing more than compliance with the applicable rules of professional conduct is necessary or appropriate to ensure a fair trial,” Haltom wrote. “To date, while members of the prosecution team, including Mr. Hopkins, have strayed from the mandate of these ethical constraints, the defense has not.”
The judge didn't feel a protective order could be justified.
“I don't like to control the right to freedom of speech and I don't like to control the right to freedom of the press unless necessary,” Byrne said Friday. He added that he didn't find any necessities in this situation and didn't plan to put a limit on Haltom.
He noted there has to be a balance struck between a person's right to a fair trial and freedom of the press.
General comments about the case are important, said Byrne, who noted the courtroom has no television cameras, so the only way the public knows about the case is through press coverage.
Given all of the issues, Byrne said it was obvious that the case is of interest to the public.
Byrne scheduled a hearing on the motions for Beland's records and the trial continuance on 9 a.m. May 19. He said he did not plan to request that a jury panel be ready for the May 19 start date.
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