Saturday, 24 February 2024

DA asks for delay in Dinius trial; wants more time to investigate

LAKEPORT – A new motion filed Wednesday by the Lake County District Attorney's Office explains the reasons for a request to reschedule the trial of a Carmichael man in connection with a fatal 2006 crash, including new information relating to central figures in the case.

Deputy District Attorney John Langan asked visiting Judge J. Michael Byrne last week to delay the trial of 40-year-old Bismarck Dinius, who is accused of felony vehicular manslaughter with a boat and driving under the influence of alcohol for an April 2006, boat crash that claimed the life of Willows resident Lynn Thornton.

Dinius was piloting a sailboat owned by Thornton's fiance, Mark Weber of Willows, when it was hit by a powerboat driven by off-duty sheriff's chief deputy, Russell Perdock, who was not charged in the case. The vehicular manslaughter charge against Dinius arises, in part, because it is alleged that the sailboat's running lights weren't on.

Langan asked for more time to investigate the case and told Byrne last Friday that he would file a written motion explaining his reasons for not starting the trial on May 19.

The new nine-page motion explains that Langan has received new information about Perdock's activities on the day of the crash, and that another witness has come forward to corroborate statements made by former sheriff's Sgt. James Beland, who said he was ordered not to administer a preliminary alcohol screening (PAS) – or breathalyzer – test to Perdock after the crash occurred.

Byrne has scheduled a May 19 hearing on whether or not to change the trial date. At that time he also will consider a motion by Langan to secure Beland's personnel records.

Langan, who last week was denied a request to place a gag order on the case that would have limited comments of witnesses and the attorneys to the media, did not return a call to Lake County News seeking comment on how much more time he would need to prepare for the case. District Attorney Jon Hopkins also did not reply to an e-mail message.

According to the declarations in his motion to continue the trial and its supporting documents, Langan's request hinges on his need to fully investigate the matter, and the investigator assigned to the case can't complete the investigation by May 19.

Dinius’ defense attorney, Victor Haltom of Sacramento, said he opposes any change in trial dates.

“My instructions from my client are, 'Let's go, let's get this trial over and done with,'” Haltom said. “He's sick of dealing with this. He's at his wits' end.”

Motions refer to new, and disputed, information

In his motion, Langan explains that on April 27 he was informed that district attorney's investigators  contacted certain individuals who provided information about Perdock's activities prior to the April 2006 collision “that appears to be in conflict with the information previously provided to the DA's office by other witnesses in this regard.”

“I think that this is significant motion,” said Haltom. “I think there are some significant disclosures in there.”

Haltom said he expects Langan to give more specifics on May 19 about the information he received.

For his part, Haltom said there are people who have told him they saw Perdock at Konocti Harbor Resort & Spa in the hours before the crash. “Perdock denies having set foot on the grounds of Konocti on that day,” said Haltom.

Haltom said he and an investigator interviewed Perdock's ex-wife, Donna, in November of 2007, and she said her then-husband had left the house by 5:30 p.m. or 6 p.m. on April 29, 2006, while Perdock himself has said he did not leave with his boat until about two hours later.

“I think the district attorney is coming around to see there is a pretty glaring omission here,” Haltom said.

On Friday, in the wake of the rising speculation about the information Langan received, Perdock himself told Lake County News that he was not on the Konocti Harbor property the day of the crash. “I absolutely deny that information,” he said of the new allegations about his whereabouts.

Perdock said he has withheld making public statements about the case because Dinius deserves a fair trial.

“The information I would have would taint a jury,” he said.

He said he felt Haltom also has a duty to make sure there’s a fair trial for the sake of the victim, Lynn Thornton, and accused a Bay Area reporter of being a “propaganda agent” for the defense.

New information said to support Beland

Another important part of Langan's motion involves new information supporting Beland's contention that Boat Patrol Sgt. Dennis Ostini ordered him not to administer a PAS test to Perdock at the scene of the crash – which contradicts his testimony on the stand in Dinius' preliminary hearing in May of 2008.

Langan’s Wednesday motion states that on April 27 he received information that district attorney's investigators contacted another former sheriff's sergeant who was on duty and at the scene of the
crash.

That former sergeant, said Langan, provided information “apparently indicating that former Sgt. Beland may have been 'ordered' not to administer a PAS test to Mr. Perdock.”

Ostini, who was in charge of the collision scene, testified during the preliminary hearing that it was his judgment that it was better to rely on a blood test at the hospital.

A breathalyzer test also wasn't administered to Dinius at the scene, which Beland testified to suggesting to Ostini. Blood draws were conducted on both Dinius and Weber at Sutter Lakeside Hospital.

Ostini's decision to go with blood tests over the breathalyzer may be better understood when considering a research paper by David J. Hanson, Ph.D., Professor Emeritus of Sociology of the State University of New York at Potsdam, who has studied alcohol and drinking for more than 40 years.

“Because invalid tests can make it more difficult to obtain convictions, many law enforcement agencies now prefer to obtain blood samples, which have fewer sources of invalidity,” Hanson writes.

So Beland – who had testified in court to being among the first sheriff's deputies on scene – drove Perdock to St. Helena Hospital-Clearlake for a blood draw.

Perdock said Friday that he had asked Ostini to have him taken to the hospital as quickly as possible after the crash so that the blood draw could be taken. He said the crash scene was “fairly chaotic” at that point.

He added that he has since voluntarily submitted DNA samples for testing because Haltom questioned whether or not the blood originally tested was actually Perdock’s.

In April Haltom said during a hearing that Beland – who approached him last year after losing his job with the sheriff’s office – stated that he told Langan before the preliminary hearing last year that he was ordered not to give the PAS test.

According to Haltom, Beland's attorney, Scott Lewis, said Langan “shaped” Beland's testimony, which Langan denied. Langan disclosed the conversation with Beland in the judge's chambers during the preliminary hearing.

Lewis, based in Santa Rosa, did not offer comment when Lake County News contacted him regarding the case.

Internal affairs documents reveal Beland’s statements


However, Lewis has shared portions of Beland's personnel records with Haltom. Some of those, including a portion of a June 17, 2008, internal affairs investigation interview, have been filed as part of the case's
documents.

In a 35-page transcript, sheriff's Lt. Cecil Brown explains that the investigation covered the period from May 18 through May 22, 2008, the week Dinius' preliminary hearing took place, as well as an unknown date in the fall of 2007.

“It is alleged that during this incident, you violated regulations regarding good conduct and that you failed to comply with performance standards for a sergeant,” Brown stated during the interview.

Sheriff’s office regulations regarding good conduct state: “All members, whether on or off duty, shall be governed by the ordinary and reasonable rules of good conduct and behavior, and shall not commit any act tending to bring reproach or discredit upon the Sheriff’s Department or the County of Lake.”

According to the transcript, on May 18, 2008, Beland had a discussion with Langan about the case, in which he stated that he was ordered not to give Perdock the PAS test following the crash, despite his desire to do so.

During the interview Brown asked Beland, “... after talking to Langan for a minute, didn't you tell him that it was not an order, but more of a discussion?”

“Yes,” Beland replied, who also responded “yes” to a followup question by Brown who asked if the words “order” and “discussion” have different meanings to him.

During the interview Beland maintained that Ostini ordered him not to give the test.

Beland told Brown that he'd told several other sheriff's office staff that he had been told by Ostini not to administer the PAS test. He also stated that at the time he didn't argue against Ostini's decision to seek a blood draw. “I thought it was a good decision.”

Beland – who in the internal investigation transcript noted that he had previously been placed on a performance improvement plan for another matter – was terminated after the internal affairs investigation, according to Langan's Wednesday motion.

Protection sought for personnel records

Langan has filed a Pitchess motion to acquire Beland's personnel files, which both Beland and the Lake County Sheriff's Office are opposing. That motion also will be heard May 19.
 
County Counsel Anita Grant said her office is representing the sheriff's office in its response to Langan's Pitchess motion for the release of Beland's records.

The Pitchess motion procedure was set up to address officer records, which are protected by a number of rules and laws, Grant explained.

Grant said it's par for the course to oppose releasing a peace officers' records. “We've never not done this,” she said.

“The sheriff's department has an obligation here to protect those records absent a court order,” said Grant.

She added that the threshold that has to be met in releasing the documents for review is now relatively low, although the Supreme Court doesn't allow “fishing expeditions.”

Grant, who has dealt with most of the Pitchess motions against the county over several years, said she doesn't know of another case in which the District Attorney's Office has filed such a motion against the sheriff's office.

Despite the fact that some of Beland's records already have been released in court documents, Grant said she doesn't believe that diminishes the sheriff's office's responsibility to protect them. “Our obligation exists notwithstanding and can only be relieved by the court.”

Grant said there is no present lawsuit by Beland against the county. Due to the peace officer bill of rights, she could not comment on whether or not an administrative appeal of his termination is under way.

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

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