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Attorney Victor Haltom of Sacramento made the request Friday on behalf of Bismarck Dinius, 40, who goes on trial next month for the felony vehicular manslaughter charge plus an additional felony charge of boating under the influence. Dinius is alleged to have had a blood alcohol level of 0.12 at the time of the crash.
He's facing the charges over an April 29, 2006, sailboat crash that claimed the life of Willows resident Lynn Thornton, 51. Dinius was piloting the sailboat on which Thornton was riding, which was hit by a power boat driven by Russell Perdock, an off-duty chief deputy with the Lake County Sheriff's Office.
Dinius was not required to appear in court for Friday's proceedings, presided over by visiting Judge J. Michael Byrne from Napa County.
Haltom had filed two motions, including one for discovery items, including police reports, that Deputy District Attorney John Langan had provided by the hearing.
The second motion was for documents relating to the termination of former Lake County Sheriff's Sgt. James Beland, which Haltom was seeking under a Brady motion (For an explanation of Brady motions and other legal terms in this article, see sidebar, “Important legal terms for the case”).
Langan's response to Haltom's motion was that Haltom needed to seek that information with a Pitchess motion, used by defense attorneys in criminal cases to access the personnel files of arresting law enforcement officers.
Citing legal cases, Haltom said Pitchess motions don't prohibit the information being released as part of a Brady motion, that Brady applies to all exculpatory or impeaching evidence.
Haltom alleged that at the time of Dinius' preliminary hearing last summer, Beland went to the Lake County District Attorney's Office and told them he was ordered not to subject Perdock to a preliminary alcohol screening test – or PAS. Langan reportedly had disclosed that in the judge's chambers.
Beland was then called to testify in the case, said Haltom. The testimony he ultimately gave in the preliminary hearing included a statement that Lake County Sheriff's Office officials didn't order him not to give the PAS test, but had discussed it with him.
It was Beland who transported Perdock to St. Helena Hospital-Clearlake that night for a blood draw in the case, according to court testimony.
Then, last December, Haltom said Beland showed up at his Sacramento office, and told Haltom he was ordered not to give Perdock the PAS test and, as a result, the sheriff's office fired him last year.
Haltom said Beland's Santa Rosa attorney, Scott Lewis, also told Haltom in December that Beland was ordered not to subject Perdock to the PAS test.
Lewis stated to Haltom that Langan “shaped” Beland's testimony at the preliminary hearing.
On Thursday Lewis received about 500 pages of information on Beland's personnel records and internal affairs proceedings after having requested them some time ago, said Haltom.
Haltom guaranteed that he didn't want anything of Beland's personal information other than what sheds light on why he was terminated, and whether it related to Perdock and the PAS test.
“After he made that disclosure he had nothing but trouble at the Lake County Sheriff's Office until he was ultimately terminated,” Haltom alleged.
Byrne told Haltom that the Pitchess motion procedure is the way to pursue the evidence.
The judge said his biggest concern was that the sheriff's office wasn't a part of the proceedings. “They've not been noticed, they've not been served with your motion. They do have standing in this to be heard from on whether this is privileged or is not privileged information to be disclosed.”
The department has a right to have some sense that its hearings on personnel matters aren't automatically open to the public, which allows for more candid hearings, said Byrne. “Those are all valid things that have to be balanced.”
Haltom said he believed the Brady requirement should require the District Attorney's Office to supply all relevant materials, which wouldn't require him to need to go through the Pitchess motion process.
“We have the officer himself coming to my office saying, 'Here's what went down,'” said Haltom. “This is not the normal Pitchess situation.”
Replied Byrne, “It's not the normal Pitchess situation, I agree with you.”
District Attorney's Office doesn't have documents
Responding to Haltom's statements, Langan said he was hearing many things for the first time.
Referring to the several-hundred-page-long preliminary hearing transcript, Langan described his statements regarding a discussion with Beland before the hearing began.
While he was preparing for the case, Langan said he placed a call from his home on a Sunday evening to Beland to remind him that he needed to give testimony in the proceedings. Langan said he told Beland to focus his review of the case reports on the blood draw issue, which was important because Beland had written an incorrect date on the blood draw evidence envelope.
“We didn't get that far,” said Langan.
Beland told him during the conversation that when he got to the scene of the boat crash he wanted to give Perdock a PAS but was ordered not to and told to take Perdock to the hospital.
Langan said he questioned Beland on that point, and asked who specificallygave him the direction. He said he asked if it was Perdock or someone else.
“He couldn't tell me at that time who gave the order,” said Langan.
Langan then said he asked Beland if it was an order or a discussion, and Beland said it was the latter. At that point Langan told Beland he would have to inform the court, which he did at the time of the hearing. Langan said he went into chambers with Judge Richard Martin and Haltom and related the conversation verbatim.
He said he planned to request a transcript of Haltom's comments Friday in order to compare them with Beland's previous statements.
Byrne asked Langan if he needed more time to work on the matter, and Langan said yes. He added that he previously had not been aware of Beland's employment status with the sheriff's office, and he didn't know the reasons for Beland being fired. He suggested the District Attorney's Office itself may need to file a Pitchess motion for the information.
Byrne said it appeared to him that the sheriff's office should have been noticed as part of the motions in order to give them the chance to weigh their officers' privacy rights in relation to the matter. The agency also could then be ordered to produce the information.
He then asked, “If Beland is making these statements, is he waiving his right to privacy from this hearing?”
Haltom said he may be able to get some kind of waiver from Beland. “That would sort of short circuit the issue,” he said, and would make it unnecessary to notice the sheriff's office.
Langan said the District Attorney's Office has none of Beland's personnel records or materials relating to the internal investigation surrounding him.
“I think all the material that Mr. Haltom is seeking should exist within the sheriff's department personnel files, which our office doesn't have access to,” he said.
Byrne suggested he could deny the motion for the information based on Langan's statement that his office has none of the information.
Langan said he had a procedural concern with doing that, since the sheriff's office is part of the prosecution team. That meant that, technically, the prosecution has the documents but can't get them.
“The fact that the sheriff's office is part of the prosecution team is the whole problem in the case,” said Haltom.
Said Byrne, “Let's not go there right now.”
Langan suggested Lewis could give the documents to Haltom, who could in turn share them with the District Attorney's Office, and if necessary Langan could then file a Pitchess motion for the full documents from the sheriff's office.
Haltom also raised the issue of a previous effort to have Dinius' charges reduced from felonies to misdemeanors. Judge Martin denied those motions in February, saying the window of time for such motions had passed, and another opportunity would not come again until the period of time following conviction and before sentencing, as Lake County News has reported.
Haltom said Thornton's family contacted him to say they didn't want Dinius prosecuted for her death, a sentiment he viewed as germane to the 17b motion, which is filed when seeking a reduction of charges.
Despite Martin's ruling, Haltom said Dinius has yet to receive “meaningful consideration” of the motion to have his charges reduced. Haltom said Dinius shouldn't have to go through a felony trial, spending tens of thousands of dollars more, unless a judge will reduce the felonies to misdemeanors. “That's the upshot of my position.”
Langan said Haltom should have brought the 17b motion prior to Dinius being arraigned on the felony charges.
“Once he allowed his client to be arraigned on the information, that was the end of it until there's a conviction and a sentencing date in this case, should there ever be one,” argued Langan. “So the error here was on the part of the defense.”
He said Dinius' substantive rights weren't denied during the preliminary hearing of the initial 17b motion hearing. Langan said the motion was brought, heard and denied for legitimate reasons. “So I think that's the end of it as far as procedurally where we are.”
Haltom had wanted Byrne to rule on Martin's denial of the 17b motion, but Byrne said he couldn't because, once past arraignment, Martin is no longer considered a magistrate but a superior court judge in the structure of the unified court system. That's equal to Byrne's jurisdiction, so he can't overrule it but can entertain it again.
Byrne said Martin made a legitimate ruling based on the information he had, and agreed with Martin's assessment that he didn't have jurisdiction to reduce the charges at that stage in the proceedings.
DNA evidence to be retested
Regarding another discovery issue, Langan said there will be some DNA evidence obtained from Perdock that will be retested. “We have been prepared to do that for some time.”
He said he was waiting to hear back from Haltom regarding a lab to do the testing. Haltom said he already had replied to Langan about the matter via e-mail.
During the February 17b motion hearing before Martin, Haltom had informed the court that he wanted to have DNA samples from Perdock to test because he doubted the validity of the blood samples – which showed no sign of alcohol – that were taken from Perdock on the night of the crash.
Langan said he didn't know how long it would take to get the two DNA swabs processed by an independent lab or the Department of Justice lab. “I don't know if that's going to impact the trial date itself.”
The case returns to court at 1:30 p.m. April 24 for a trial readiness conference and to continue the discussion on the motion to compel the release of Beland's records.
Dinius' trial is set to begin on May 19. Langan estimated that – on the Lake County Superior Court's three-day-per-week trial schedule – it will take six weeks to complete. Haltom estimated half that time. Both Langan and Haltom said they are bringing in witnesses from out of state.
There also was discussion about seeing if it's possible to hold the trial four days a week rather than three. Byrne noted that the courthouse has space constraints, which might become an issue in extending the trial week.
Byrne agreed to make himself available to be assigned to the trial. “It's an interesting case,” he said.
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