Saturday, 13 April 2024

Judge examines juror contact; rules against jury boat trip

LAKEPORT – In between testimony from numerous witnesses on Wednesday, the prosecution, defense and judge in a fatal sailboat crash discussed concerns over a possible indirect contact between a juror and the district attorney, and arguments were presented on whether or not to take the jury on a nighttime boat ride.


In the end, Judge J. Michael Byrne, who is presiding over 41-year-old Bismarck Dinius' trial for felony boating under the influence causing great bodily injury, decided there was no issues with the juror and that he would deny the defense's request for the trip onto the lake.


Dinius' trial is now in its third week. He was at the tiller of Willows resident Mark Weber's sailboat when it was hit by a powerboat driven by Russell Perdock, an off-duty sheriff's chief deputy, on the night of April 29, 2006.


Weber's girlfriend, Lynn Thornton, died of injuries she suffered in the crash, which the prosecution argues was Dinius' fault because he allegedly was steering the boat and was under way without navigation lights, and is alleged to have had a blood alcohol level above the legal limit.


On Wednesday morning, before testimony began, Byrne and the attorneys discussed a letter submitted to them by Carol Stambuk, a friend of Thornton's and the executor of her estate, regarding a potential indirect contact involving District Attorney Jon Hopkins and a juror.


Hopkins said he was having lunch at Angelina's Bakery when he saw an acquaintance who was having lunch with one of the jurors. “I had no conversation with the man I know while he was having lunch,” Hopkins said.


Byrne said he saw no issues, although it was good that it was pointed out. He said he expects it to happen since there are so few places to eat downtown. The judge also was reluctant to question the juror about it due to concerns about making the individual feel pressured.


However, during an afternoon break defense attorney Victor Haltom raised the issue again, saying he had spoken with Stambuk about what she had witnessed.


“I don't want to single out this juror,” Haltom said. “I do think there needs to be an inquiry.”


Byrne had Stambuk take the stand and put her under oath, then began questioning her about what she saw at Angelina's Bakery on Tuesday.


Stambuk said she saw a juror at the next table eating with a man who was not identified. Hopkins came into the restaurant, and the male subject with the juror got up and hugged Hopkins.


As the juror and the man were leaving the restaurant, Hopkins' acquaintance turned back to Hopkins and said, “Good luck with the case,” which Stambuk said she could hear from across the room.


Haltom and Hopkins both took brief turns questioning Stambuk. Hopkins asked her about where each of the parties were in relation to each other and distances. He asked if she was the person who brought the civil lawsuit in relation to Thornton's death. Stambuk, who has been at the trial almost every day, said yes.


Byrne called out the male juror and briefly asked him questions. The man acknowledged seeing Hopkins but said he and the other male didn't discuss the case. “We talked football,” the juror said, noting that he didn't hear his friend say anything to Hopkins.


The judge then asked the juror if he was bothered by the questions, and he replied no.


Afterward, Byrne told the prosecution and defense he was “personally satisfied” there was no issue with the juror.


Attorneys discuss witnesses


Following the last witness Wednesday and after the jury was dismissed for the day, Haltom told the judge he wanted to call to the stand this week Deputy District Attorney John Langan, who formerly had prosecuted the case.


Haltom said he wanted to question Langan about why no report was ever filed on the statement witness Jean Strak said she gave a sheriff's deputy. On Wednesday Strak testified that she had seen the sailboat's lights on when it was leaving Richmond Park Bar & Grill for the night cruise during which it was hit.


“Are we going to call the secretaries, too, to see if they didn't get one?” Hopkins replied.


He called Halton's request “nonsensical,” and announced his intention to call rebuttal witnesses with respect to the issue.


Hopkins said he and his investigators currently are examining the sheriff's automated records to see if a sheriff's deputy ever talked to Strak. He said the issue isn't relevant unless a report was made.


Haltom replied that it's very relevant because part of his case is based on the idea that “these guys were in a campaign, from day one, to say, 'Lights not on, let's protect Perdock.'”


He also wanteda former District Attorney's Office employee who now works in Mendocino County available for testimony. Hopkins said the man will appear.


The defense's case could rest Thursday, Haltom said.


Judge turns down jury view


Haltom argued for taking the jury out on pontoon boats to see the effect of background shore lights at night. If that wasn't approved, he wanted to take them to the Young Scandinavians Club, where several people reportedly saw the crash, and Bayview or Boren Bega, where the damaged boats were towed.


Hopkins argued that Haltom hadn't laid the foundation for such a trip. He said there was no scientific information to justify it from defense expert Dr. William Chilcott, whose testimony, Hopkins said, “is way up for grabs.”


He asserted, “This is an experiment,” not a jury view.


Witnesses have stated they saw the lights on the sailboat about 45 minutes before the collision, but not during, said Hopkins. He also questioned Strak's testimony, which he said contradicted everyone else's because she had stated the boat was lit up “like a Christmas tree.”


He said the jury's view would not be the same as that of the parties on the night of the crash. He cited several California Supreme Court cases – spanning between 1966 and 2002 – to prove his point. As he started presenting appellate court cases Byrne stopped him and said the Supreme Court cases were enough.


“It comes down to discretion,” said Byrne.


There also are three main factors to consider – convenience, appropriate value, and diagrams and physical evidence that can be substituted for the actual viewing, Byrne said.


Haltom said he didn't need to lay a foundation for the importance of seeing the shore lights, because the case itself has laid them.


Byrne said he didn't see the value of going to the Young Scandinavians Club because the testimony of Hans Peter Elmer, one of the witnesses from that location, didn't address shore lights.


If the conditions could be duplicated, Byrne said the trip would be valuable, but he said at best he believed it would end up being an experiment, because he didn't think they could get an exact location on the crash. He also suggested there might be additional safety issues, with more boats on the water at this time of year.


He said the sunset in the next few days would be different from the day of the crash. “We have information it was pitch black that night,” he said, with only one witness recalling a sliver of a moon.


Another concern is the difficulty in keeping jurors from discussing such a trip, because they'll want to talk and ask questions, said Byrne.


Deciding that the witnesses, diagrams and photos were sufficient at the time, Byrne said, “At this time I'll exercise my discretion and deny the request.”


According to the US Naval Observatory's online database, the nighttime conditions on Tuesday, Aug. 18, will closely resemble those of April 29, 2006. To see an assessment of those similar conditions, see

Prosecution, defense argue final motions before Dinius trial begins .


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

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