Sunday, 25 February 2024

Judge sets Dinius trial for June 30; prosecution concerned about time for investigation

THIS STORY HAS BEEN UPDATED.

LAKEPORT – The trial date for a Carmichael man accused of vehicular manslaughter and boating under the influence in connection with a fatal 2006 sailboat crash has been moved.

Bismarck Dinius, 40, was scheduled to go on trial beginning on Tuesday, but visiting Judge J. Michael Byrne granted a delay in the trial date, which now is tentatively scheduled for June 30.

However, there's a possibility that the trial may not even take place then.

Deputy District Attorney John Langan told the court on Tuesday that he is concerned that his investigators may not be able to complete in-depth followup on new information in the case, as well as researching 911 calls regarding the crash that have since been purged.

He's asked for a June 12 setting date, at which time he said he might ask to dismiss the case.

“It's a possibility given the amount of investigation that we believe we would need to ethically do now before presenting a trial that would be fair to both sides,” said Langan.

“What I don't want to have happen is for us to try to rush this and do a sloppy job,” he said.

Dinius, who was present in court on Tuesday, is being tried for the April 29, 2006, crash in which Willows resident Lynn Thornton was mortally injured.

He was at the tiller of a sailboat owned by Thornton's fiancé, Mark Weber, when it was hit by a powerboat driven by Russell Perdock, an off-duty chief deputy with the Lake County Sheriff's Office.

Langan had requested a new trial date, telling the court that his investigators need to look into new information about Perdock's activities before the crash.

They're also looking into statements from former Lake County sheriff's sergeant and current deputy Mike Morshed regarding an order that he gave to former sheriff's Sgt. James Beland to not test Perdock with a breathalyzer at the crash scene.

Dinius' defense attorney, Victor Haltom of Sacramento, had pulled a time waiver on May 8, which means the trial couldn't start any later than July 7.

Byrne said he was concerned about continuing the case beyond that statutory limit, considering the age of the case.

The judge also granted a motion from Langan to release Beland's personnel records.

Judge looks first at motion seeking personnel records

The morning hearing took place in two parts, beginning with Langan presenting his Pitchess motion for Beland's records, since Byrne pointed out that Langan's motion to continue counted on the records request.

Pointing to differences in federal and state approaches to releasing peace officers' records, Langan said he recognized it was a difficult question for the court.

He said it was a “unique and interesting” position he was in, because he had a duty to try to get the records because of what they might mean for the case.

Part of Beland's records – a 35-page transcript from an internal affairs investigation interview last June – were released by his attorney, Scott Lewis of Santa Rosa, to Haltom, who in turn included them in his opposition to a gag order Langan had filed earlier this month, as Lake County News has reported.

In one of Langan's latest filings on the case, discussing his Pitchess motion, he also had attached the transcript, which detailed an interview with Beland before he was terminated last year. In it, he stated that he was ordered not to administer the breathalyzer test to Perdock.

Byrne asked Langan what specific parts of Beland's files he wanted. “Are we talking about his total records or are we talking about what led to the termination?”

Langan suggested he wanted records either from May 18, 2008 – the date Beland had a conversation with him, prior to testifying in the preliminary hearing, in which he stated he had been given the order – or from the date of the crash in April 2006 and forward.

Lewis, who called in to the hearing, said he didn't oppose an “in camera” review – which is conducted in private in the judge's chambers – of the records.

He explained that there are two different files – Beland's normal personnel file and a more extensive one connected to the discipline proceeding he's going through now. Throughout that entire investigatory file there are names of many other witnesses.

Byrne suggested he would do an initial in camera review to protect Beland's private rights and privileges.

Deputy County Counsel Ryan Lambert, representing the Lake County Sheriff's Office, said the agency filed its opposition to release the records last week.

Since then, Lambert said he has learned more about the case's records. “Knowing what I know now, Mr. Beland has turned over at least portions of his confidential files,” he said, noting that because of that there is a question of a waiver.

The sheriff's office policy is to respond to Pitchess motions with objections, but Lambert added, “How that comes together with an apparent disclosure by an employee, I'm not prepared to respond to.”

Lambert said he objected to Langan's assertion that he should be able to participate in the in camera review.

He suggested that, since Haltom had access to and is aware of exculpatory information in the case, they should have filed their own Pitchess motion for the material. “There's no reason the district attorney needs to conduct this investigation on their behalf,” Lambert said.

Haltom stated during the hearing that he believed Beland was fired because “he didn't tow the party line.”

“The file will show that, in our opinion, the allegations resulting in him being terminated were trumped up,” said Haltom, asserting that the real reason Beland was fired had more to do with providing information harmful to Perdock and helpful to Dinius.

Byrne said the situation didn't involve the usual principles protecting law enforcement officers' records.

“The credibility of Mr. Perdock is probably the core of the case,” said Byrne.

He said what took place on the lake, the breathalyzer test, Beland and the witnesses are all very important. Byrne said he didn't think there was relevance for personnel records previous to the crash, as he had no indication there was anything in Beland's background beforehand to justify those releases.

Saying he wasn't allowing a fishing expedition, Byrne took an hour to go into his chambers, where he reviewed an inch-thick manila envelope containing Beland's records. He was accompanied by a sheriff's staffer and a court reporter, and said he would have the records sealed afterward.

When court reconvened just after 10:30 a.m., Byrne said he had reviewed the documents and ordered that all the entire investigative reports and interviews by the sheriff's department pertaining to Beland's discipline action be released, with copies provided to both the prosecution and defense by day's end.

District attorney concerned about having enough time for investigation

In presenting his motion to change the trial date, Langan said he will need time to review and investigate Beland's documents.

He also reported that some important evidence – in this case, the 911 calls from April 29, 2006 – are “no longer in existence.”

“We're trying to create a record of the calls,” he said.

He said Beland also will need to be interviewed and new information on Perdock examined. With Haltom pulling the time waiver, the trial can start no later than July 7.

Langan said he wanted to talk to the judge in chambers about the motion to continue. However, Byrne responded, “I've always done this on the record. That's my practice.”

Haltom said that the request to delay the trial has to be based on the prosecution exercising due diligence. If the calls were germane, he asked, why weren't they examined three years ago?

The prosecution wanted to examine information both about Perdock and Beland, with all of that evidence being helpful only to the defense, said Haltom.

He objected to delaying the trial any longer. “We're ready to go.”

Haltom also questioned why, earlier on Tuesday, he had received 110 new pages of discovery material from the District Attorney's Office.

“I'm pretty troubled by it,” he said.

The evidence included a September 2008 report by the District Attorney's Office in which Perdock provided them with an investigative report from a Pleasanton-based private investigation firm, GAB Investigations. The documents included statements from witnesses saying they saw lights on the sailboat. Haltom said the prosecution's whole case is based on the lights not being on.

“Why on earth am I getting this on the day the trial is supposed to start from the DA's Office?” Haltom asked.

Byrne said he saw three factors coming into play regarding the trial date.

First, Lake is a small county and the case has generated a lot of publicity, which means the court will have to spend a lot of time getting a jury panel. They also have the revoking of Dinius' time waiver, which means they have a 60-day period within which to set the trial date. Then there's the new information from Beland's file that Byrne ordered released.

Based on his experience of the case, Byrne said he believed there is much to be revealed that's of interest to both sides, which justified moving the trial within the 60-day period. He said the 911 calls should have been investigated earlier.

“It is a very unusual case, with unusual circumstances, that continues to get unusual,” said Byrne.

Langan, noting that his investigators can't finish their inquiries by July 7, asked for a setting date at least two weeks out from the start of the trial so he make a decision about whether or not they'll be ready to proceed. Byrne gave him the June 12 date, in preparation for the June 30 trial.

 

Investigating the 911 calls

Langan, who took over prosecuting the case in February of 2008, told Lake County News Tuesday afternoon that he doesn't exactly know what happened to the 911 tapes from the day of the crash.

“I was told there was a significant number of calls that came in,” he said. “For whatever reason, those calls were not preserved.”

What they do have are the 911 calls Perdock made from his cell phone, reporting the crash.

Langan noted that not all of the day's calls pertained to the crash.

“What we are doing is to try to see if we can get records of the origins of those calls,” he said.

That involves tracking down numbers and who they were registered to, which involves a different process for land lines and cell phones. He said he provided some of that information to Haltom Tuesday, and will try to get the rest of the phone call information as soon as possible.

“We have to make the effort,” he said.

Capt. James Bauman of the Lake County Sheriff's Office said the law requires the sheriff's office to keep the audio recordings of 911 calls for six months.

The sheriff's office's actually keeps them twice that long, said Bauman. The sheriff's Mercom dispatch system automatically purges the audio recording on an ongoing basis every 365 days. So, as of Wednesday, the oldest voice recording in the system would be for May 21, 2008.

Bauman said the sheriff's incident reports will chronologically record comments and calls, but if they get numerous calls about the same incident – such as in the case of a wildland fire or other major situation – not every subsequent call will be logged once response has been dispatched.

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

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