Thursday, 28 March 2024

Sheriff Mitchell releases responses in community debriefing on Dinius case

PREFACE


Friends,


Please accept my apologies for the delay with this final report. In addition to some losses in my family that kept me away from this effort, I also lost the hard drive on my computer, and as a result, my entire first draft of this debriefing. I deeply appreciate our county’s I.T. Director, Martin Franusich, for his efforts to recover my lost data following my computer crash.


The three years that it has taken for this matter to be concluded have taken a toll on many, most especially to the family of Lynn Thornton. My silence during this time has been interpreted in many different ways, but I have always sought to uphold the necessary neutrality of my office regardless of the difficulty sometimes inherent in doing so.


We have long enjoyed a solid reputation with the citizens of Lake County and I have always believed that good citizens who might have questions or doubt would have their confidence restored in full when they simply knew the truth. It is for those people and for the members of my department that I have undertaken this debriefing.


You will recall that while closing arguments were still being made in the Dinius case, I started working to secure assistance from three citizens to assist in a process of vetting the questions that I wanted to solicit from the public. I extend my thanks to Elizabeth Larson of lakeconews.com for heading up this small panel. I also extend my sincere gratitude to Helen Whitney and to Phil Murphy for their willingness to bring independence to the process of sorting and clarifying the questions.


In the following pages you will see repeated references to the Sacramento County Sheriff’s Department and to the name Charlie Slabaugh. Slabaugh was a sergeant with the Sacramento County Sheriff’s Department when his sheriff made the sacrifice to assign him and one other deputy sheriff to work full-time on this investigation for weeks following the collision. The Sacramento County Sheriff never asked for reimbursement for these services of any kind and we owe them gratitude for their professionalism, independence, and generosity. Slabaugh has since retired from the Sacramento County Sheriff’s Department as a Lieutenant and I deeply appreciate his contributions to the investigation.


Many members of this department responded to assist in the early stages of the investigation before we could secure assistance from another independent agency and they all deserve credit for their professionalism that night. However, Sgt. Dennis Ostini has earned my thanks many times over - beginning the night of the collision. Sgt. Ostini was the consummate professional throughout the investigation and the multiple court proceedings that followed.


Sgt. Ostini was new to the assignment in our boat patrol operation and this was one of his first emergency operations in the darkness. He was calm and thoughtful in spite of the fact that the scene was still active and critical when I arrived. Through his professionalism during the trial and, more specifically, his candor on the witness stand, Sgt. Ostini represented this department in an outstanding manner.


I commend my entire staff for their efforts on the night of the collision and for the professional manner in which they responded to the unwarranted criticisms that have been leveled against them by some misinformed people.


There are twenty-two questions that follow. Twenty of them were submitted to me via Elizabeth Larson and her committee. Two of them were asked of me directly and in person. Each question is a summation of several questions that were similar in nature. Direct questions will be answered plainly and I am providing supporting information where I have drawn inference that there are broader issues involved or where there appears to be a question behind the question.


On the following page you will find a list of the questions and each serves as a direct link to the question with full response. I would hope that every citizen with an interest in this report will take the time to read each and every question and accompanying response as well.


On August 24th of this year, I introduced the debriefing process to you in hopes of “providing clarity where there are questions and healing where there are wounds.” It is my heartfelt belief that the contents of this debriefing will do both for those who are genuinely in search of either.


Respectfully Submitted,


Rodney K. Mitchell

Sheriff/Coroner/OES Director

County of Lake, CA



THE QUESTIONS:


1. What specific actions did Sheriff Mitchell take with regard to this case?


2. Is this “debriefing” motivated by your plans to seek reelection in 2010?


3. Did you in any way attempt to influence the charging decisions in this case?


4. What is your relationship with District Attorney Jon Hopkins and Capt. Russell Perdock?


5. Was Russell Perdock's boat registration expired at the time of the crash? If so, why was he not cited?


6. Is your office investigating any of the discrepancies between the testimony given by Russell Perdock on the stand and previous statements he had made to investigators in the criminal case and in depositions in the civil case?


7. Was Russell Perdock reprimanded for accessing the Bismarck Dinius case file and/or lying about it while under oath?


8. Was Russell Perdock warned by anyone at the LCSO not to access files/evidence or contact people in the investigation about the case?


9. Following the crash, why was Russell Perdock not immediately placed on leave and barred from having access to the investigation and evidence until the investigation was completed? Why was his access not taken away after it became clear he had accessed investigative files? (See the preceding section for the answer to the second half of this question.)


10. Why was Russell Perdock allowed to have access to his blood sample? Was that a violation of department policy?


11. During testimony in the trial, Sgt. Dennis Ostini stated that he asked you for permission to bring in an outside investigator. Why did you, as sheriff, not make that initial decision immediately on the night of that crash?


12. Why was an investigator (then-Sgt. Charles Slabaugh) chosen from a department so far away who had so little experience with boat crashes?


13. Why did you exercise so little oversight into this investigation?


14. Why was Russell Perdock not cited for unsafe speed and/or child endangerment when the head of the LCSO boat patrol, Sgt. Dennis Ostini, has said publicly that he would have cited him for unsafe speed if it had been his call?


15. Sgt. Slabaugh made the determination that Perdock violated the safe speed rules. Many members of the sailing community believe that the Sheriff's Office has neglected their safety by failing to enforce that rule against Perdock. How will the Sheriff's Office address those concerns?


16. The report by Sgt. Slabaugh mentioned no evidence that the sailboat's navigation or position lights were on and excluded that possibility in its findings, yet considerable evidence was presented in court that cast serious doubt on that conclusion. How do you explain this large omission of information in the Slabaugh report on such a critical element of the case against Dinius?


17. Why was the investigation not handled entirely by another law enforcement agency besides the District Attorney's Office and the Lake County Sheriff's Office?


18. What are the LCSO protocols for accident/crime cases when a deputy is involved?


19. Why did Deputy Mike Morshed say under oath that the breathalyzers the LCSO uses are "almost useless," and what has been the department Policy regarding their use?


20. What policies/protocols were not followed by LCSO staff regarding this case?


21. Information surfaced three years later that Perdock had been seen at Konocti Harbor Resort the day of the crash. What involvement did your department have with the collection of this information and why was it not presented sooner?


22. What is the sheriff's office doing to restore public trust and make sure a situation such as this doesn't arise again?



THE ANSWERS


1. What specific actions did Sheriff Mitchell take with regard to this case?


INCIDENT RESPONSE AND INVESTIGATION:


Saturday, 4/29/06 at about 9:45 PM, my central dispatch staff phoned my home to notify me of the boating collision. This is standard procedure in the event of a major incident. I was told that there were serious injuries involved, there were possibly people still unaccounted for in the water, and that Russ Perdock was driving one of the boats involved.


Saturday, 4/29/06, at 10:23 P.M., I arrived at Bayshore Marine. Sgt. Dennis Ostini briefed me on the circumstances as he believed them to be at that time. We discussed bringing in an outside investigator and initiating the local critical incident protocol (see question #18 for further details).


I contacted Russ Perdock at the scene. I did not detect an odor of alcoholic beverage on his person and I made this observation at close range when I embraced him. Perdock twice expressed a desire to be taken to the hospital for a blood draw as quickly as possible to avoid the possibility of any allegations being made later that his blood alcohol readings were altered in any way because of delays.


Sunday, late morning 4/30/06, Sgt. Ostini phoned me to update the status of the investigation. He told me that he had phoned and spoken to Wes Dodd who had been Ostini’s instructor in boating accident investigation class. Dodd declined the request to conduct the independent investigation for us but he did recommend bringing in another law enforcement agency.


Monday, 5/1/06, before 9 A.M., I made my first contact with the Sacramento County Sheriff’s Office in order to determine whether or not they would be able to provide outside assistance in the investigation. Senior staff members from that department had multiple contacts with me throughout the morning as they tried to determine their ability to lend assistance. By late afternoon, their decision to assist had been made and the Sacramento County officials had dispatched members of their department to us to take the lead in this investigation.


Monday morning, 5/01/06, a RIMS system administrator notified me that this case report had already been viewed extensively by numerous employees from a variety of assignments in the department and he asked if I wanted to restrict the case for future access. I gave the direction to leave the report unrestricted and accessible to all employees.


Background: Our department uses a computer system (called RIMS) to manage records, incidents and other information relating to calls for service and reports. One of the valuable features in the RIMS system is an audit section that identifies which system user accessed a record, when it was accessed, and whether the record was printed or modified. Any member of our department can access records any time he or she is logged into the system. There is another rarely used feature within RIMS wherein a system administrator can block (restrict) access to particular cases or reports to all but a few selected users.


Monday, 5/01/06, at 3:37 PM, I viewed the case file and the audit section (see question # 8 for explanation about the RIMS audit component). I contacted Perdock and gave him directions to establish a clear line of separation between his official position in the department and the off-duty incident he was involved in two days prior. Under normal circumstances a citizen is allowed to contact investigating deputies directly. However, in order to assure that he, as an involved party, had no professional influence in this case, I told Perdock he was not to contact any member of the department about this investigation. I told him that he was to relay any information that he felt was pertinent to me and I would determine what information should be passed on to staff for consideration to supplement the case. Several of the steps that I took are outlined in the following paragraphs and they are reflective of that direction.


CASE FILES TO THE DISTRICT ATTORNEY FOR REVIEW:


By 5/20/06, the primary investigative reports prepared by my department and the Sacramento County Sheriff’s Department were submitted to the DA’s office for review.


On 5/29/06 I sent an e-mail message to DA Hopkins asking if a decision had been made pertaining to this case and I was notified that there was still some legal research being conducted regarding the case.


In November of 2006, our County Counsel’s Office facilitated the release of the full case (our reports as well as those prepared by the Sacramento County Sheriff’s Department) to each of the civil attorneys representing Dinius, Weber, and Perdock.


On 4/17/07, twelve days prior to the one-year anniversary of the collision, I sent an e-mail to the DA Hopkins asking if a filing decision had been made with respect to this case. (The one-year anniversary is relevant to the issues raised in response to question # 7.)


FILING DECISION ANNOUNCED BY DA’S OFFICE:


On 6/07/07, I received an e-mail from the DA containing the press release that he had issued earlier that day announcing his filing decisions.


On 7/23/07, I received an e-mail and letter from Perdock containing information relating to this case. Perdock contested the speed that both Ostini and Slabaugh had recorded based upon their initial interviews with him and he offered other suggestions about what he believed should be added to the case. I forwarded the e-mail and letter to Sergeants Ostini and Slabaugh for their review and consideration. Neither believed that additional follow up was needed with regard to Perdock’s suggestions. I also forwarded copies of Perdock’s e-mail and letter to DA Hopkins.


On 8/15/07, I sent an e-mail to my management staff in response to DA Hopkins’ request for another issuance of the dispatch logs and the audio recordings. Before completing my instructions to my management staff, I wrote, “Russ Perdock is the only person not on this e-mail routing and it is to be kept that way.” This statement was consistent with my expectations that Perdock was to be excluded from departmental operations and information sharing pertaining to this case.


On 8/24/07, I issued a press release announcing that the Attorney General’s (AG) Office had accepted my request to perform an independent review of my department’s handling of the investigation into this case. Pursuant to the California Constitution Article 5, Section 13, the Attorney General has direct supervision over every District Attorney and Sheriff in all matters pertaining to the duties of their respective offices. I invited the AG to conduct the review as a result of a number of citizens’ inquiries about the case. (See question # 2 for the details of my request for the AG review.)


On 12/21/07, I issued a follow-up announcement releasing the AG’s findings that our department’s actions were appropriate.


On 7/22/08, I sent an e-mail to John Langan, the Deputy District Attorney (DDA) who was handling the case at this time. I notified Langan that Perdock had approached me again suggesting that the ideas and information that he had regarding this case should be examined (wind speeds and lighting on the night of the collision, etc.). DDA Langan indicated that he would have one of his DA investigators re-interview Perdock if he wanted to supplement his statement.


On 9/16/08, I received an e-mail from Perdock. In addition to restating his disagreement with Slabaugh’s findings, he took offense to a comment made by Ostini questioning the DA’s office rationale for continuing with the prosecution of this case. Perdock also asked if the investigation would be re-opened to address his concerns regarding weather, wind speed, and visibility on the night of the collision.


On 9/16/08, in response to Perdock’s e-mail, I contacted Chief Deputy D.A. Rich Hinchcliff to ask if the DA’s office wanted to re-interview Perdock. Chief DDA Hinchcliff confirmed for me the following day that he would make arrangements for a follow-up interview. That interview was arranged for 9/24/08.


On 9/23/08, in advance of the follow-up interview that had been arranged with a DA investigator, I sent Perdock an e-mail message reminding him that he was not to be in uniform or to be displaying any official insignia when he met with the DA investigator the following day.


In late June of 2009, I received a defense subpoena to appear in court on this case. I phoned defense counsel Victor Haltom at his office and asked him what he would like me to be prepared to address as his witness. Mr. Haltom told me that he wanted to know what communication I had with District Attorney Hopkins regarding this case and he would also likely have questions regarding the dismissal of former deputy Jim Beland. I notified DA Hopkins of the defense subpoena and asked him to notify me of what information I should be ready to present should I need to be cross-examined. I readied myself as a witness but I was not called.


On 8/03/09, DA Hopkins met with me at my office to inquire about how the audit component of our records management system works. He had general questions about whether or not the system reveals who accessed records at a given time and specific questions about Perdock’s access. I explained and demonstrated the audit feature in both a “Case” record and a “Person” record. (A Case record is a computer file which contains all written reports pertaining to a particular crime or incident. A Person record is a computer file which shows a summary of all documented contacts that our agency has had with a particular individual. There is an “Audit” section in both the Case and Person records which reveals the date and time of access as well as the identity of the person accessing that record.) As indicated above, the Case record audit demonstration to the DA revealed Perdock’s access on May 1, 2006. I then opened and reviewed the audit section of the Dinius Person record with the DA. This revealed that Perdock had opened the Person record on 5/11/07.


DA Hopkins indicated that I might receive a defense subpoena for the audit of the Case record. In attempt to be proactive, I printed the audit and asked the DA to offer it via discovery so that my staff would not have to go through the subpoena response process.


On 8/05/09, I notified DA Hopkins about another issue pertaining to a member of my department who was a witness in his case. Specifically, the Sonoma County Sheriff’s Department had conducted an independent internal affairs investigation as a courtesy to my department and I believed that I had a legal obligation to notify the DA of the findings of that investigation.



2. Is this “debriefing” motivated by your plans to seek reelection in 2010?


There is no secret that this is an election year and I most certainly do want to be re-elected. Surely no one can rationally assert that the summer of 2007 was an election year. Yet it was then that I requested the involvement of the AG’s office and assured the publication of the findings of the AG review regardless of the outcome. Transparency mattered then as much as it matters now.


The benefits of a debriefing include the opportunity to refresh memories and set the record straight. This debriefing is not the first time that I have communicated with the public at large about this case. Two examples of such communication include the following:


* August 24th, 2007, I issued the following in a press release announcing that I had asked the California Attorney General’s Office to review our department’s handling of this case:


“Recent television broadcasts about the boating collision that took Lynn Thornton’s life have left many good citizens apprehensive about the adequacy and fairness of the collision investigation. I have heard those concerns and they do resonate with me. The Lake County Sheriff’s Department must operate unencumbered by doubt. Lynn Thornton’s loved ones and local citizens alike must be able to trust that we are fully open to inspection - in spite of unfortunate stereotypes of rural communities.


On August 20th, 2007, I contacted the Office of the Attorney General and I requested that his Department of Justice (DOJ) conduct a review of the entire investigation. I received official approval of my request on August 22nd, 2007. I look forward to the outcome of the DOJ’s review and I am committed to accepting all of their findings.


It is typical for law enforcement agencies to protect case evidence until it can be scrutinized in court. In a rural county like ours, it is crucial that our small jury pool is not influenced by un-vetted information from the media before jurors can be empanelled to view the presentation of evidence and the examination of witnesses under oath. It is my intention to release the DOJ’s findings to the public for review. That will be done as soon as I am confident that the information does not interfere with any local jury selection process.”


* December 21st, 2007, I issued a subsequent press release announcing the AG’s findings that this department had done its job correctly:


“In August of 2007, I asked the California Department of Justice (DOJ) to conduct a review of our investigation into a fatal boating collision that took place on Clear Lake on the night of April 29th, 2006.


On December 10th, 2007, the DOJ notified me by telephone that the review had been completed and that the written report and findings would follow.


On December 20th, 2007, the DOJ report was hand-delivered to me. I have determined that the contents of the report will not have an influence on issues pending before the Courts. Consequently, I am releasing the report in its entirety at this time.


I sincerely appreciate the Attorney General’s staff taking the time out of their schedule to perform this review. I am proud of the professionalism that the members of my department displayed not only the night of that tragic incident but also since the department became the focus of highly emotional scrutiny a few months ago.


Nothing in the DOJ’s findings can be expected to relieve the family and friends of Lynn Thornton of their sense of loss. Nor can this report lift the burden of anxiety for all of the people who were directly impacted by this incident. However, it should remove from the good citizens of this county any remaining doubts or apprehension about their Sheriff’s Office handling of this dreadful incident.” Attorney General findings


This is also not the only case that I have debriefed with members of the public since I became this county’s sheriff. Long-time residents of Lake County will recall public debriefings that I conducted in person regarding issues that included floods, homicides, and school violence just to name a few.


It is my duty and my privilege as the Sheriff to do the tough stuff like addressing public concerns about any issue regardless of the timing. I have a record of consistency with releasing accurate information to the public just as soon as it is practical and legally responsible to do so and for accepting full responsibility if there were shortcomings in our performance. For most citizens, simply obtaining accurate information reinforces for them that their long-standing trust in this department remains well placed.


Our department mission is: Secure the Public’s Trust.


My motivation is mission driven and my record proves it.



3. Did you in any way attempt to influence the charging decisions in this case?


Not in this case or any other since I took office as Lake County Sheriff.


Like anyone else, I have personal opinions but it is my duty to avoid expressing them at a time or in a way that can influence the justice system. The Sheriff’s role within the system is to offer facts and evidence regardless of the benefit or lack thereof to any individual. I am obliged personally and professionally to assure that I do not manipulate due process.


On July 17th 2009, DA Hopkins issued a press release reinforcing the fact that he alone is responsible for the charging decisions in this case. It is with respect to other aspects of his press release that I did make some observations to DA Hopkins that could be indirectly related to the issue of charging decisions.


The DA asked for my opinion about the press release he submitted after the jury was selected but just before the trial began. I told him that I believed that both the content and the timing of his statement were ill-advised and I questioned the potential impact on the Court process. Consequent to those concerns, I suggested to the DA that he should consider excusing himself from the case before the trial began and that he should ask a DA from another county to review the entire case anew for independent charging decisions.



4. What is your relationship with District Attorney Jon Hopkins and Capt. Russell Perdock?


1. Jon Hopkins and I are colleagues with a good working relationship. In addition to business phone calls and e-mail, we meet together monthly as members of the Lake County Law Enforcement Chiefs’ Association (which includes the County’s Chief Probation Officer, the Chiefs of Police for Clearlake and Lakeport, the area Commander of the California Highway Patrol, as well as representatives of State Parks Police and Department of Fish & Game). This association works to improve the efficiency and effectiveness of law enforcement in our county and we all enjoy a good working relationship with each other.


2. Russ Perdock is a colleague, subordinate employee, and friend. We were closest when we worked the south county together as shift partners in patrol and then later as partners in detective assignments. It has been many years since he and I have spent time together outside of work-related events but that has not minimized the value that I place on our friendship.


In addition to life’s changes, it is also natural and appropriate that personal relationships change to accommodate professional obligations in para-military organizations such as a law enforcement agency.



5. Was Russell Perdock's boat registration expired at the time of the crash? If so, why was he not cited?


Perdock’s registration was valid at the time of the collision.



6. Is your office investigating any of the discrepancies between the testimony given by Russell Perdock on the stand and previous statements he had made to investigators in the criminal case and in depositions in the civil case?


This is addressed in response to question No. 7 below.



7. Was Russell Perdock reprimanded for accessing the Bismarck Dinius case file and/or lying about it while under oath?


The issues raised in question numbers 6 and 7 are under investigation at this time. Pursuant to Section 832.7 of the California Penal Code, no details about the details or findings of an investigation can be disclosed to the public.


Additional Information: California Government Code Sections 3300 through 3313 establish the procedural due process standards (known as the Peace Officers’ Bill of Rights [POBOR]) that every law enforcement agency must follow when conducting an investigation into alleged misconduct by a peace officer. To some citizens who are familiar only with how swiftly personnel issues can be resolved in the private sector, the POBOR can appear quite bureaucratic and time consuming. While I can appreciate some of those sentiments, I would encourage all citizens to support this particular area of law as it is intended to assure fairness and due process which is worth any delay that can be attributed to it.


Pursuant to the POBOR, an agency generally has up to one year to investigate an issue and impose discipline for misconduct. Moreover, a peace officer cannot be disciplined twice for the same incident so it is important for the matter to be resolved completely before discipline is rendered. There are technical exceptions to this one-year timeline that may include new criminal charges or convictions regardless of the date of the alleged offense.



8. Was Russell Perdock warned by anyone at the LCSO not to access files/evidence or contact people in the investigation about the case?


Yes.


Late Monday morning, 5/01/06, I was notified that this case report had already been viewed extensively by numerous employees from a variety of assignments in the department and I was asked if I wanted to restrict the case file to eliminate further access. I gave the direction to leave the report unrestricted and accessible to all employees to assure transparency for the employees of this department. The most efficient means to block Perdock would have been to simply block the case to all users but that would have been contrary to my desire for transparency to the other employees at all levels in the department. The only way to restrict Perdock’s access only would have been by a laborious process of granting access to 186 employees on an individual basis.


At 3:37 P.M. on 5/01/06, I viewed the case file and the audit section. The audit revealed that Russ Perdock had entered the case file at 8:52 A.M., that same morning. This triggered my direction to Perdock that I expected there to be a clear line of separation between his official position in the department and his off-duty collision. My directions included (but were not limited to) that he was prohibited from using his official position, time, or department resources connected in any way with this case. To assure that there would be no allegations of influence over subordinate staff in this case, I also told Perdock that he was not permitted to discuss this case with any member of the department but me. If he wanted to provide or obtain information pertaining to this case, he was to go through me alone.


My expectations in this regard were made clear to the rest of my management staff as well.



9. Following the crash, why was Russell Perdock not immediately placed on leave and barred from having access to the investigation and evidence until the investigation was completed? Why was his access not taken away after it became clear he had accessed investigative files? (See the preceding section for the answer to the second half of this question.)


We have the authority to place a peace officer on paid leave (Administrative Leave) when we are conducting an investigation into an issue or an incident wherein there is a connection (nexus) to the peace officer’s official capacity.


On-Duty: The nexus to official capacity is clear and easily established whenever the issue being investigated occurred while the peace officer was on duty.


Off-Duty: The nexus to official capacity for an issue that occurred while the peace officer was off-duty is not easily established. An example of something that can be clearly connected to official capacity would be an allegation of an off-duty criminal act wherein intent to do wrong is clear and in conflict with an essential job function. By way of example, an allegation of domestic violence committed off-duty would likely result in administrative leave while an internal investigation is completed.


Based upon all of the information available to this department and the Sacramento County Sheriff’s staff (including the statements of witnesses from aboard both vessels), there was no clear nexus between Perdock’s off-duty collision and his official capacity as a peace officer. Sergeants Ostini and Slabaugh were both of the opinion that Perdock was going too fast to avoid collision but this was an abstract finding which fell short of justification to impose administrative leave or discipline without a criminal charge or conviction to support it. (See the response to question number 14 for additional information pertaining to “Opinions and Conclusions” reached by a peace officer during an investigation.)



10. Why was Russell Perdock allowed to have access to his blood sample? Was that a violation of department policy?


There is no evidence that Perdock accessed his own blood sample. Consequently, there was no violation of policy in this regard. In his employment capacity with the department, he had a key to the location where the blood sample was stored – until Detective Jerry Pfann retrieved it on Sunday afternoon 4/30/06.


There are refrigerators at our main office and at the Lower Lake Substation where blood samples are stored until they are retrieved by one of our Evidence Technicians to be delivered to a forensics laboratory at the Department of Justice (DOJ). These refrigerators are accessible to deputies of all ranks so it is accurate to state that it was possible for Perdock to gain access to the box containing the vial of his blood.


In the attached video you will see the process that is followed when blood samples are prepared for storage in a refrigerator. The vial of blood is sealed in a bag with a tamper resistant label before being placed into a box that has another tamper resistant label that is initialed by the deputy when the box is stored as evidence. These procedures are in place so that it would be plain to a DOJ lab technician if the seals had been broken before the blood arrived at the DOJ laboratory. There is no evidence or testimony that either of the seals were tampered with in any way prior to the blood arriving at the DOJ lab. In the following paragraphs, you will see that the DOJ lab technicians pay attention to the details of those labels and seals.


Video of standard operating procedure for Lake County Sheriff's Office when collecting blood (Visit http://www.lakesheriff.com/boat_case%20files/BoatCrashQA.asp ).


Much of the controversy surrounding the issue of Perdock’s blood sample – and therefore his blood alcohol level – revolves around one error in documentation. On page 24 of the report, you will find a supplement prepared by former deputy Beland wherein he writes that Perdock’s blood was drawn on 4/29/06 at 2330 hours (11:30 P.M.). This report is accurate and is supported and confirmed by our dispatch logs as well as numerous other documents and witness testimony from the hospital where Perdock’s blood was drawn.


On page 75 of the report, you will see the copy of the label on the bag containing Perdock’s vial of blood on which Beland incorrectly listed the date of the blood draw as 11:30 P.M. on “4/30/06”. Of course, this was not possible because Detective Pfann was in possession of the blood sample on the afternoon of Sunday 4/30/06. The error was brought to our department’s attention by the DOJ lab technician who received the blood from Detective Pfann the following Monday morning - demonstrating the attention to detail that the DOJ lab technicians give to blood evidence.


On page 73 of the report, you will find the supplement that Beland wrote on 5/16/06 correcting the error that was brought to our department’s attention by the DOJ lab technician.


In sum, Beland states in his supplement that he had inadvertently written the date of 4/30/06 at 2330 hours (11:30 P.M.) as the date and time of the blood draw on one document. The other documents were correctly dated. All of the records for Dinius, Weber, and Perdock indicate that their blood was drawn within about 45 minutes of each other. Perdock’s blood was actually drawn about 30 minutes before blood was drawn from Dinius.


The error mentioned above is not the only error in dating blood evidence documents in this case. On page 28 of the report, you will see the blood draw consent form that Dinius signed while at Sutter Lakeside Hospital. That form is dated and timed 4/29/06 at 0002 hours (12:02 A.M.). Taken alone, this would suggest that Dinius’ blood was drawn more than 21 hours before the collision occurred. Of course, that didn’t happen and the phlebotomist correctly noted the date and time as 4/30/06 at 0005 hours (12:05 A.M.). It was one error clearly attributable to the midnight hour just like the error that Beland made on one document with respect to Perdock’s blood. The difference with this error is that it did not become the focus of rumors of cover up and collusion. Misdating a document is unfortunately a common occurrence for shift workers at the midnight hour.


We have implemented a new procedure in order to avoid any issues about access to containers of blood samples involving employees in the future. Blood samples taken from our own employees will be secured in refrigerators in our alarmed evidence building. This is a building to which few keys are issued. Even I, as the Sheriff, have neither a key to the building nor the code to the alarm. Of course, our entire department learned a valuable lesson about taking the extra time to verify the dates on such documents especially when documenting times near the midnight hour.



11. During testimony in the trial, Sgt. Dennis Ostini stated that he asked you for permission to bring in an outside investigator. Why did you, as sheriff, not make that initial decision immediately on the night of that crash?


I readily agreed with Sgt. Ostini’s recommendation to bring in an outside party and I authorized him to hire an expert as well. However, we were under no illusion that such specialized assistance could be secured that very Saturday night. It is standard protocol for us to call another agency when a critical or potentially fatal incident occurs involving a member of our department and the DA investigators were involved the next day.


At about 10 A.M. on Sunday morning (4/30/06) Sgt. Ostini phoned an expert (Wes Dodd) who had taught his class in boating accident investigation. Dodd was briefed on the case and asked to perform the investigation for us. Dodd recommended bringing on another law enforcement agency. Sgt. Ostini briefed me on this and we developed the plan to submit a request to the Sacramento County Sheriff’s Office.


There is a significant difference between having an agreement to ask for assistance and actually receiving the assistance. No other agency could be compelled to take over this investigation. The fact that the incident involved an off-duty member of our agency did not create a legally binding special circumstance for another agency to drop all that they have going to respond to our county. Rather, our circumstances formed only the basis of a request for assistance. To have an agency agree to respond from another county in a situation that is not a lawful emergency requires examination and approval at the highest levels.


I was in discussions with senior officials at the Sacramento County Sheriff’s Office by 9 A.M. Monday morning. After multiple discussions that morning, the Sacramento County Sheriff’s Office dispatched members of their department to our county and their staff was present and beginning their investigation by early Monday evening 5/1/06.


It was our department’s obligation to take the initial investigative steps on the assumption that no other agency would be in a position to commit staff and resources for a protracted period of time to assist us with it. As soon as the Sacramento Sheriff’s Deputies arrived in our county, they took the lead role and we took the support role in the investigation.



12. Why was an investigator (then-Sgt. Charles Slabaugh) chosen from a department so far away who had so little experience with boat crashes?


Sgt. Ostini recommended the Sacramento County Sheriff’s Office because he had prior experience working with Slabaugh and his department’s boating unit. A few weeks prior to the collision, Sgt. Ostini had also attended a training session wherein Sgt. Slabaugh was an instructor. Slabaugh was a state-qualified instructor and this reinforced his qualifications to conduct a thorough and independent investigation for us.



13. Why did you exercise so little oversight into this investigation?


My level of involvement with this particular case was completely appropriate under the circumstances.


It has been my practice to respond to major incidents whenever I am available to do so. It is not my practice to micro-manage investigations. My role at the scene of any incident is to assure that my staff has the equipment and support they need to do their jobs. That is precisely what I did on the night of the collision.


It is also my practice to have my staff provide me with status reports about major investigations. On occasion, and only as needed, I give direction for specific action or follow-up in such major cases.


In the two weeks after the collision, as the Sacramento County Sheriff’s deputies performed their investigation, I did receive briefings on the status of the investigation. I did not however, make any recommendations for follow-up or take any action to steer any aspect of their investigation. To attempt to give direction to the Sacramento County staff would have been contrary to my intent to have a completely independent investigation.



14. Why was Russell Perdock not cited for unsafe speed and/or child endangerment when the head of the LCSO boat patrol, Sgt. Dennis Ostini, has said publicly that he would have cited him for unsafe speed if it had been his call?


Sgt. Ostini testified to his opinion that Russ Perdock was traveling at an unsafe speed for conditions. However he has never given testimony that he would have arrested or cited any of the parties involved. Sgt. Ostini has been steadfast in his belief that it was his duty to assure that the investigation was completed and given to the District Attorney - who alone would decide who should be charged and for what offense/s.


A “citation” is a written promise to appear in court in lieu of booking into a county jail wherein jail staff would deliver the arrested party to the court.


Penal Code (PC) Section 836 (a) (1), grants a peace officer the authority to arrest or issue a citation for a misdemeanor only when that offense is committed in the officer’s presence. (There are five exceptions but they do not apply even remotely to this kind of case.) Unsafe speed on a waterway is a misdemeanor offense. Neither Sgt. Ostini, nor any other peace officer, witnessed a misdemeanor offense pertaining to this incident. Consequently, pursuant to 836 PC, no one could have been issued a citation.


Penal Code Section 853.85 specifically prohibits the issuance of a citation in the case of a felony.


Child endangerment (California Penal Code section 273 a) may be charged by the DA as a misdemeanor or a felony. Nothing about the circumstances known to us at that time, or since, would support the elements of a child endangerment allegation. Based upon the two preceding penal code sections, no one could have been issued a citation for this offense either.


While a person may not be arrested for a misdemeanor that is not committed in a peace officer’s presence, it does not mean that the facts of the same case will not be reviewed for possible criminal charges. Law enforcement agencies routinely submit investigative reports directly to the District Attorney for a review for criminal charges. This is referred to as the “Complaint” process. These investigative reports include the maximum offenses that the investigator believes may have been committed. An attorney in the DA’s office makes the decision about what charges will be filed, if any. The vast majority of complaint cases do not result in criminal charges. In calendar 2008 for instance, 85% of the complaint cases we submitted did not result in a criminal filing.


In complaint cases, a peace officer reaches “Opinions and Conclusions”. (See page 55 of the case report on our website for Sgt. Slabaugh’s Opinions and Conclusions.) Opinions and Conclusions that are not supported by a charge filed by the DA and a subsequent conviction are only an abstract finding by an investigator. Unlike a standard speeding violation wherein there is a defined speed limit that a peace officer can attest was violated, the issue of “unsafe speed” on the lake without a defined speed limit was especially abstract without a criminal charge or conviction to support it.



15. Sgt. Slabaugh made the determination that Perdock violated the safe speed rules. Many members of the sailing community believe that the Sheriff's Office has neglected their safety by failing to enforce that rule against Perdock. How will the Sheriff's Office address those concerns?


It warrants repeating that Sgt. Ostini concurred with Slabaugh’s finding that Perdock had been operating in violation of the following:


T – 14 California Code of Regulations 6600.1 Rule 6 Safe Speed “Every vessel shall at all times proceed at a safe speed so that she can take proper and effective action to avoid collision and be stopped within a distance appropriate to prevailing circumstances and conditions.”


However, as indicated in the response to the preceding question, no enforcement action could have been taken against Perdock in this case without a criminal charge filed by the District Attorney’s office


Outside of this particular incident, our boat patrol staff has received no other complaints from citizens alleging that our marine services personnel has done anything to compromise safety for people on a vessel of any kind.


Sgt. Ostini provided me with many pieces of information to facilitate the completion of this final report. I have included one of the documents that he presented to me because it is very informative as a stand alone document with information relative to this case specifically and vessel operation generally.


Sgt. Dennis Ostini’s Observations (Visit http://www.lakesheriff.com/boat_case%20files/BoatCrashQA.asp )



16. The report by Sgt. Slabaugh mentioned no evidence that the sailboat's navigation or position lights were on and excluded that possibility in its findings, yet considerable evidence was presented in court that cast serious doubt on that conclusion. How do you explain this large omission of information in the Slabaugh report on such a critical element of the case against Dinius?


The intention of this debriefing is not to debate the testimony offered by defense witnesses but to merely articulate the actions taken by this department and the Sacramento County Sheriff’s Department.


Based upon the statements made by eyewitnesses to the actual collision, Sergeants Slabaugh and Ostini reached the conclusion that the sailboat was not displaying navigation lights at the time of collision. This included the statements of witnesses who were passengers on the sailboat at the time of collision. (See the written and video interviews on our website for examples).


There were witnesses who gave statements about lights on the sailboat prior to the collision. However, even those witnesses did not state that they saw navigation lights as required by Rule 20 of the Federal Inland Navigation Rules.



17. Why was the investigation not handled entirely by another law enforcement agency besides the District Attorney's Office and the Lake County Sheriff's Office?


As indicated in response to questions 11 through 13, no other department was obligated or required to conduct this investigation. The responsibility to conduct investigations into boating collisions on Clear Lake rests with me and my department alone. There is the obvious issue that this incident occurred within Lake County jurisdiction. In addition, we are under contract with the California Department of Boating and Waterways to perform all enforcement and investigatory activities on our lake in receipt for state funding to perform those activities.


The California Government Code (commencing with section 8600) establishes the requirements for all law enforcement agencies to provide “mutual aid” to another agency in certain emergency conditions. The circumstances involving this collision were urgent to us but they did not constitute an emergency to which other agencies with boating accident investigators were obligated to respond.


During non-emergencies, mutual aid is closely examined before a chief executive commits resources to another location. In the instant case, many issues needed to be examined by the Sacramento County Sheriff: a) did the circumstances warrant the possibility of committing deputies to another county for an extended period of time; b) would they have adequate personnel in their boat patrol unit available to cover their own needs while committing personnel out-of-county for a protracted investigation (were any of their deputies scheduled for training, vacation, or court cases, etc); and c) would their agency be able to commit those same personnel to multiple court appearances away from their county after the actual investigation is completed? There are many more issues but these are some of the key issues that a sheriff must examine before committing employees out-of-county in non emergencies.


Considering all that was necessary for the Sacramento County Sheriff’s Office to consider, they responded rapidly to our request for urgent assistance and I remain deeply grateful for it.


In sum, it was logistically impossible – and unwise – to simply wait to determine whether or not another agency could commit personnel in a non-emergency case like this. Initial investigative steps were taken by my staff and they readily turned over the lead to the Sacramento County Sheriff’s deputies as soon as they arrived Monday evening.



18. What are the LCSO protocols for accident/crime cases when a deputy is involved?


There exists in our county a non-binding agreement that each agency can call on another agency for critical incident investigations. Though any agency has the authority to conduct their own investigations, we all recognize the importance of independence in reviewing circumstances of a peace officer involved in a critical incident.


That agreement/protocol was followed when our department notified the district attorney’s office and the DA sent an investigator to assist Sgt. Ostini the morning following the collision (Sunday 4/30/06). None of the DA investigators had the specialized training to conduct a boating collision investigation.


This was one of the contributing reasons for our decision to request assistance from another county agency that operated a boating enforcement unit.



19. Why did Deputy Mike Morshed say under oath that the breathalyzers the LCSO uses are "almost useless," and what has been the department Policy regarding their use?


Background: Our department issues portable preliminary alcohol screening (PAS) devices for use by deputies in the field. The devices are to be assessed for accuracy at least every 10 days. This assessment is often referred to as a “calibration”.


On 9/29/09, I asked Deputy Morshed for a response to this question. He told me that our PAS devices had not been “calibrated” prior to the night of the collision or any time in proximity to it. It was his opinion that a reading from a non-calibrated PAS is of no use at all. Morshed also indicated that it is his practice to use the PAS devices only when he smells or suspects alcohol on an individual. Morshed said that he did not detect an odor of alcohol on Perdock and that he did not suspect that Perdock was under the influence. As a result, Morshed said he would not have used the PAS on Perdock even if he believed the devices had been calibrated. Morshed was emphatic that Perdock was not treated any differently than anyone else.


Follow- up: On 10/02/09, I reviewed the records that our department maintains of PAS accuracy measurements/calibration. The measurements are recorded on a form (provided to us by the California Highway Patrol) referred to as “Preliminary Alcohol Screening Device Accuracy Check/Calibration Log”. Those records reflect that each of the PAS devices available to our patrol deputies had been checked for accuracy the day before the collision. Moreover, each had been consistently calibrated every week before and after the collision. For example:


Device # 004134 Date of Accuracy Check: 4/28/06


Device # 004135 Date of Accuracy Check: 4/28/06


Device # 004136 Date of Accuracy Check: 4/28/06


Device # 004137 Date of Accuracy Check: 4/28/06


Device # 055300 Date of Accuracy Check: 4/28/06


Device # 055301 Date of Accuracy Check: 4/28/06


Device # 055302 Date of Accuracy Check: 4/28/06


Device # 1006701 Date of Accuracy Check: 4/28/06


Deputy Morshed’s testimony was inaccurate.



20. What policies/protocols were not followed by LCSO staff regarding this case?


Departmental policies that were not followed included failing to write supplemental reports and failing to keep official information confidential. (See response to question number 21 for further information.)


It is our protocol to routinely place all seized evidence in a locker or secure area. Taking custody of two large vessels late Saturday night is anything but routine. When Sgt. Ostini and I spoke by phone on Sunday morning 4/30/06, he stated that he wished that he would have been able to secure both vessels in a locked venue as soon as he took possession of them. Both vessels were not secured in such a manner until daylight the following morning when he had returned to work. Regrettably, our boat patrol operation does not have extra secure storage areas so much effort was necessary to make room for the two seized vessels. I have been informed that Sgt. Ostini’s candor on the witness stand about this issue was also appreciated by citizens who observed the trial.



21. Information surfaced 3 years later that Perdock had been seen at Konocti Harbor Resort the day of the crash. What involvement did your department have with the collection of this information and why was it not presented sooner?


Based upon discussions that I had with two of the Konocti Harbor Resort employees, a DA investigator, and two of my deputies, I learned the following:


One deputy sheriff has been in a dating relationship for about 2 years with a young woman who is a former employee at Konocti Harbor Resort & Spa. During the course of this relationship, this deputy said that he had repeatedly been told by his girlfriend and her mother that there were witnesses who would testify that they had seen Perdock at the bar at Konocti Harbor Resort shortly before the collision.


On 4/25/09, this deputy was off-duty when his girlfriend and her mother approached him with this information again. He said that he had grown tired of hearing these allegations so he decided that he would route this information to the department via whoever was in charge of the shift on that particular Saturday afternoon. The person in charge of the shift is a deputy sheriff who was working above classification as an interim shift supervisor at that time.


The former interim supervisor told me that he was uncertain of what he should do with the information. He said that he wanted to get the information to the DA’s investigators so he phoned a friend who was a former member of our department to obtain phone numbers for the DA investigators. The former interim supervisor said that in his conversation with the former employee that he shared some of the details regarding what the witnesses from Konocti would testify to and there was some discussion about the implications of this new information as well.


The former interim supervisor said that he phoned the DA’s investigators the following Monday, 4/27/09, but they told him that they did not need to talk to him because the former employee had already shared the information with them. He took no further action.


Neither the off-duty deputy nor the former interim supervisor wrote a supplemental report. Per department policy, a supplemental report should have been written for inclusion with the case file. Copies would then be routed promptly to the DA’s office. Numerous supplemental reports have been completed well after the initial investigation period in this case. There were five supplemental reports written to this case in 2007, four in 2008, and five again in 2009 with the latest written by Sgt. Ostini on 9/23/09.


The deputy who received this information from his girlfriend and her mother should have taken action on this information the first time it was presented to him. His professional experience - and his personal knowledge of my expectations about writing detailed reports about important incidents - should have prompted swift and thorough response.


When the former interim supervisor became confused about what to do, the proper course of action was to seek guidance from me or other members of the command staff. Pursuant to policy, the business of the department is to be kept confidential unless it is necessary in the course of duty to release it. The former interim supervisor should have released this information only through official channels; adhering to this policy would have prevented a gratuitous discussion with someone who had no legitimate need for the information - in this instance a former employee. The contact information for each of the DA investigators is readily available in our official county e-mail system.


Notifying the DA investigators directly may have been an acceptable alternative to supplemental report if I had been notified of this information also so that I could assure that the allegation was thoroughly investigated and documented. As it turned out, I did not learn of this new information until late May 2009 when it was released by a local news outlet. Had the DA’s office dismissed the case prior to trial, this information may not have been made available for our department to investigate any allegation of misconduct.



22. What is the sheriff's office doing to restore public trust and make sure a situation such as this doesn't arise again?


This debriefing is intended to show that we remain transparent and willing to discuss issues that are not pending before the Courts. When read by open-minded people, the accurate information that we have released will in fact reassure the public that our department handled this case professionally and completely.


The second part of this question is the more difficult part to address. It is a good example of where I have drawn my own inference as to which particular aspect of this “situation” is referenced.


* We brought in an outside agency to conduct an independent investigation as rapidly as we could.


* We steered clear of influence with respect to charging decisions by the DA.


* I asked for the Attorney General to review our handling of the case when public questions arose after charges were filed by the DA.


* The Attorney General issued a report that the Lake County Sheriff’s Department handled the investigation correctly.


* We have implemented a new procedure to assure that blood samples from our own employees are secured in a building that is accessible only to evidence technicians.


The fact is that much of the concern that has arisen about this entire matter has to do with issues beyond the control of this department - including speculations that can neither be proven nor dis-proven. Emotions have been fueled by misinformation, assumptions and, most importantly, by the senseless, tragic and immeasurable loss of Lynn Thornton’s life.


Agenda free citizens who have read the entire report have expressed their appreciation for the way in which our department and the Sacramento County Sheriff’s Department handled this case.


We will not be able to assure that there will be no other incident for an off-duty employee. In a department our size, something is likely to occur.


We will not be able to keep people from spreading rumors intentionally or unintentionally.


We will not be able to assure that charging decisions made by the DA are consistent with public opinion.


We will, however, continue with our standing practice to critique all major cases to determine what changes if any should be made.


The sheriff's report also can be found at his Web site, www.lakesheriff.com .

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