Bismark Dinus, Clear Lake - I'll be watching the progress of this case

[s/v Copacetic]

Synopsis: Sailboat (under sail) hit at night by high speed stinkpot. Sailboat's helmsman charged with involuntary manslaughter.

http://www.boatus.com/seaworthy/justice.asp

A Strange Case of Justice
By Bob Adriance

At approximately 9:30 p.m. on April 29, 2006, five friends on a 27' O'Day were sailing toward their marina on California's Clear Lake. It was an almost moonless night, very dark, with barely a hint of wind. The sailboat was ghosting through the water when a 385 hp, 24' Baja Outlaw with three people aboard sped through the darkness and struck the sailboat's starboard stern quarter.

According to forensic experts, the Baja ramped over the sailboat and crushed the cabin bulkhead, leaving prop marks in the deck. Much of the sailboat's cabin top was torn off and its aluminum mast was sheared completely off at the base. The Baja exited on the port bow. Although the O'Day had rolled heavily to starboard and taken on water, both boats remained afloat. All five people on the sailboat suffered injuries, ranging from cuts and bruises to broken ribs and concussions. A 51-year-old woman, Lyn Thornton, who was the fiancée of the boat's owner, Mark Weber, died a few days later from her injuries. The sailboat was insured through the BoatU.S. Marine Insurance program.

After a brief investigation by the Lake County Sheriff's Department, 39-year-old Bismark Dinius, who had been at the helm of the sailboat, was charged with  manslaughter and faces up to four years in jail. The driver of the stinkpot, Deputy Sheriff Russell Perdock, was not charged.  Perdock is the number two official at the Lake County Sheriff's Department.

If you think there's a story here, you're right. And the story is still unfolding.

A Few Facts

· Alcohol. Right from the start, questions were raised about how the investigation was handled. As soon as the police arrived, Dinius was given a breathalyzer test and later a blood test at the hospital.  He was found to have a BAC of .12.  The bigger issue is Deputy Sheriff Perdock's blood alcohol level.  A Lake County sergeant told a local TV reporter that he was instructed by a superior not to give a breathalyzer test to Chief Deputy Perdock. Instead, Lake County Sheriff James Beland drove Perdock to a nearby hospital where a blood sample was taken.

Accounts vary as to what happened next.  Beland testified that after they left the hospital, he drove around with Perdock for more than an hour before taking him home and then dropping off the blood sample at the Lower Lake Substation. Beland couldn't remember what they talked about, but he was fairly certain they didn't talk about the accident. Beland also couldn't remember whether the blood sample was in his car's trunk or on the passenger seat. Perdock contradicted Beland's testimony, saying that he was certain he didn't ride home from the hospital with Beland, although he couldn't recall how he got home.  Russell Perdock said that he'd had "part of a Coors Lite" earlier that afternoon. His blood test came back clean, but according to the label placed on the sample at the hospital he was tested 24 hours after the accident. A deputy filed an addendum later saying that someone at the hospital must have made a mistake; Perdock's blood was tested two hours after the accident.   

· Lights. Were the sailboat's running lights on or off when it was struck from astern? As one expert said, the navigation light question is "a very major factor in this collision."   The sailboat's owner, Mark Weber, who was aboard but not at the helm, claimed the lights were on and Perdock claimed they were off.  Dinius didn't know whether Weber had turned on the running lights, but noted the cabin light had to have been illuminated or he could not have seen the wind indicator.  He said the cabin light lit up the cockpit "like a patio light."  Two passengers aboard the sailboat also testified that the sailboat cabin lights were on.

The California Department of Justice examined the lights and determined that the stern light had not been illuminated when it was struck by the Baja.  But Dr. William Chilcott, an expert witness with Marine Testing Company, examined the stern light under a microscope and concluded, that because the tungsten filament was stretched at the ends next to the support arms but not in the middle, it had been illuminated a "millisecond" before the crash. (The wire supplying power to the stern light was severed a millisecond before the light itself was struck, which was why portions of the filament were stretched.) Filaments are very resistant to stretching when cold but are quite receptive to stretching when hot. Chilcott noted that the Department of Justice investigation did not take stretching into account or the fact that voltage to the bulb was discontinued milliseconds before the impact.   A second expert witness, Wes Dodd, who had training on the detection of cold breaks, concurred with Dr. Chilcott's findings that both the mast light and stern light were on at the time of impact.

It's worth noting that the switch for the running light breaker switch on the boat was in the "OFF" position, although this could have happened when the boat was struck and the electrical wire supplying voltage to the light was severed.  The cabin light switch was "ON." The sailboat was left unsecured for at least nine hours after the accident and the observation was recorded two days after the collision.   This was not addressed in the lake County Sheriff's Department report.

Eyewitnesses had contradicting testimony. Two young girls who were ashore and two fishermen in a small boat said the sailboat's lights were not illuminated. But Doug Jones, who owns a marina on Clear Lake, saw the sailboat and was "sure" the lights were on. As the boat was heading out, he watched as the cabin's light and then the navigation lights were turned on. A second witness also saw the lights being turned on. Dan Noyes, a television reporter who investigated the story for ABC news in San Francisco, identified nine people on the sailboat or on shore who said they had seen the sailboat's running lights, cabin light or both shortly before the collision. But when he told the Lake County District Attorney there were witnesses who had seen the lights, Noyes was told, "No, there are not." One of the potential witnesses, Doug Jones, told Noyes that when he tried to tell a deputy sheriff that he'd seen the sailboat's lights, he was told they had already proven there were no lights on. This was at 8:00 a.m. on the morning after the accident.  He told Noyes the deputy refused to take his statement.

· Speed. One of the witnesses on shore who said that he saw the sailboat's running lights was a retired law enforcement officer. The same retired officer told Noyes that he saw the speeding Baja shortly before the collision and had commented to friends, "There's a clown who is either going to kill himself or somebody else."  He estimated the boat was going about 50 mph. Other witnesses who had seen the Baja estimated it was going as fast as 60 mph.

Perdock originally told Lt. Charles Slabaugh of the Sacramento County Sheriff's office, that the speedometer was straight up, in the 12 o'clock position, which would have indicated the boat's speed was 55 to 60 mph. (Slabaugh was called in to lead the investigation because of Perdock's position with the Clear Lake Sheriff's office.) Perdock said months later that Slabaugh's memory was confused; the speedometer had been in the 9 o'clock position, which would have put the speed at 30 – 35 mph.  He later recanted that testimony when he was shown the photographs of the tachometer and speedometer on his boat showing both needles pointing straight up.

Who's to Blame?

The obvious question is how could someone who is at the helm of a sailboat that's barely moving be held liable in a collision with a high-speed stinkpot?

It didn't help Bismark Dinius' case that he had a BAC of .12. In most boating collisions the question of alcohol usually looms large, but in this case it's almost impossible to imagine how a stone-cold sober Bismark Dinius could have maneuvered the slow-moving sailboat out of harm's way. As one of the women on the sailboat told a police investigator, "And it was like I saw this boat right there. And I said, 'we're going to get hit.' . .  . The next thing I know, POW."

Perdock insisted he hadn't seen any lights on the sailboat. Had he been distracted momentarily? (At 40 mph, a boat travels about 60' feet per second; at 60 mph it would have been traveling 88 feet per second.) A more likely explanation is that the sailboat's lights were lost among the bright lights on shore, a well-documented phenomenon   (Seaworthy, Vol. 10 No. 2). Perdock acknowledged that he had seen unlighted boats on Clear Lake before and had used the lights on shore to search for darkened silhouettes: "I can use the lighting of the object, like Richmond Park, to help me see other boats or objects on the water that may not be lighted. The lights silhouette the object and I can avoid it."

His collision-avoidance tactic may or may not have been effective for spotting unlighted boats but it would almost certainly have the reverse effect - tending to camouflage  - any boat that was lighted.  A much better tactic for avoiding collisions on a dark night, especially when someone admits to having seen unlighted boats on the lake, is to slow down. No less an authority than the U.S. Coast Guard, Nav Rule 6, cites the presence of background light from buildings on shore as one reason a skipper must reduce speed at night.

When asked why Perdock hadn't been charged in the accident, the district attorney told Latitude 38 reporter LaDonna Buback, "It's impossible to prove the speed of a motorboat" and "We can't prove beyond a reasonable doubt that his speed was the cause of the accident." One of the expert witnesses, Wes Dodd, disagreed. Dodd is a highly-regarded accident reconstructionist and former law enforcement officer who has investigated over 650 boating accidents. His conclusion: ". . . speed was the primary factor in this collision. In order to ramp the sailboat and cause the amount of damage done, Mr. Perdock would have had to have been going 40+ miles per hour based on my previous experience of vessel accident investigation and witnessing staged vessel accidents."

There is no speed limit on Clear Lake. There are, however, federal laws that apply. Dodd noted that Perdock had been in violation of Rule 5 (Lookout), Rule 6 (Safe Speed), Rule 7 (Risk of Collision) Rule 8 (Action to Avoid Collision), Rule 13 (Overtaking), and Rule 25 (Sailing Vessels Underway and Vessels Under Oars).  Dodd concluded simply, "Had Mr. Perdock been operating his vessel at a safe prudent speed, this accident could have been avoided."

Bismark Dinius

In their extensive coverage of the case, Latitude 38 editors and television reporter Dan Noyes, have noted that the only thing Bismark Dinius is guilty of is having his hand on the tiller when the sailboat was hit from behind. Even the running lights, if they were off, would be the responsibility of the boat's skipper. At the preliminary hearing, however, the judge supported the district attorney's assertion that enough evidence existed for Dinius to stand trial in September for involuntary manslaughter.

Aside from causing overwhelming mental anguish, the upcoming trial will be hugely expensive. In the earlier civil case against Dinius and Weber, legal and investigative expenses for Dinius alone have been $160,000, all of which were paid by Weber's marine insurance carrier and Mr. Dinius' homeowner's insurance carrier. In the criminal trial, Dinius must pay all of his legal fees and costs, including his experts' trial testimony, out of his own pocket.

Latitude 38 has established a defense fund for Bismark Dinius: You can assist his legal defense by sending a check made out to Bismarck Dinius, writing "Bismarck Dinius Defense Fund" in the memo section, and mailing it to Sierra Central Credit Union, Attn: Brian Foxworthy, Branch Manager, 306 N. Sunrise Ave., Roseville, CA 95661.

[AdriftAtSea]

Unfortunately, this travesty of justice has been on-going.  There are just so many questionable actions by the local LEOs and the district attorney's office.  Last I heard of it, the state was starting to investigate the cover-up and scapegoating that is going on in this case.

[Tim]

For those interested in the ongoing saga of Northern California rural justice. Today the DA dropped the manslaughter charges, but intends to go ahead with the DUI charge, still pressing to put the blame on the sailboat helmsman.

Link to local paper article

http://lakeconews.com/content/view/9554/764/

[s/v Faith]

It sounds like the case is falling apart (as it should have from the beginning). 

  I read that the Attorney General's office is looking into this.  There are many reports of efforts to cover up the deputies guilt by delaying his breathalyzer test until several hours after the 'accident'.  Also suppression of eye witness accounts who said the sailboat had NAV lights lit and that the stinkpot was operating in a reckless manner (a fact born out by the speed at impact). 

  Nothing will bring the victims back, but I sure hope they get to the bottom of this.

[Chattcatdaddy]

It sounds like the case is falling apart (as it should have from the beginning). 

  I read that the Attorney General's office is looking into this.  There are many reports of efforts to cover up the deputies guilt by delaying his breathalyzer test until several hours after the 'accident'.  Also suppression of eye witness accounts who said the sailboat had NAV lights lit and that the stinkpot was operating in a reckless manner (a fact born out by the speed at impact). 

  Nothing will bring the victims back, but I sure hope they get to the bottom of this.

Good to hear that the facts are coming to the surface. Still a tragedy anyway you look at the accident.

[Auspicious]

I read that the Attorney General's office is looking into this.

Apparently the AG "looked into it" by calling the DA and then ignoring the issue.

[TJim]

The DA has dropped the charges.  Guess he was starting to think about that DA
that went after the Duke La Cro(?)ss players and ended up loosing his license to
practice law.  If he's smart he'll be filing charges against the whole Clear Lake Sheriff's department ASAP.

[TJim]

Actually it was just the manslaughter charges that were dropped.  Check out www.record-bee.com/ci_12943985 TJ

[Shipscarver]

This guy could still get 4 years.  Wow! And people used to say Chicago was corrupt.  Chi-town can't hold a candle to these scum-bags.

[Lynx]

In Fl, When you have an auto accident and test DRUNK, You get charged for ATTEMPTED MURDER weather or not it is your falt!!
If he was sober would he had made sure he was seen by shining a light at that boat?

Far to many drunk and stoned people on the water. I avoid boats all the time or take action not to get hit.

[s/v Copacetic]

Keep in mind that his alcohol level tested at .12. That would have been legal a couple years ago. That should tell you that he was not completely wasted as some reports seem to imply.

It's hard to imagine what a sober helmsman could have done in a boat that is barely moving when another boat comes out of the darkness at 50+ mph. It's much like blaming the guy in a parked car when he gets hit.

The issue of navigation lights is huge and there are obviously conflicting reports. The sheriff's department reportedly turning away witnesses that didn't tell the story they wanted to hear tells what I need to know.

Maybe they should have a beer summit.

[TJim]

Sooner or later they will be trying the case legally, by marine law and that's when that deputy sheriff will be handed his b... in a bucket.  The DA too!  TJ

[s/v Copacetic]

Here is the latest in video: http://abclocal.go.com/kgo/story?section=news/iteam&id=6937551

and in print: http://www.record-bee.com/ci_12959614

[Shipscarver]

They took positive steps to avoid proof that the Deputy was drunk.  That seems tells you it's the old politics as usual by a party hack prosecutor whose duty it is to,  "cover Stupids a-- for the sake of the Party." Corrupt is corrupt, and these guys should be run out of town by the voters, after being investigated and dealt with by the Fed's. But, in all likelyhood, they won't. 

[Tim]

for those interested, there is twittering going on during the trial;

http://twitter.com/dannoyes

http://twitter.com/LakeCoNews

[AdriftAtSea]

Unfortunately, the judge is clearly going out of his way to accommodate the DA and is in on the coverup.   He's decided so many things in favor of the prosecution that there is no way to say this is a fair trial.  I'd also note that in one story by Dan Noyes, it notes that Perdock was getting text messages prior to his testifying, which is against the court's normal procedures. 

[Tim]

It remains to be seen what closing arguments may reveal. With my limited knowledge of the law, it didn't seem as though the DA did a very good job of refuting  the Defense witnesses. He will have rebuttal witnesses tomorrow tuesday.

The most crucial thing will unfortunately be the judges instructions to the jury.

[Tim]

Verdict in, NOT guilty on two counts, third count dismissed. Now hopefully investigations will continue into the mishandling of the case by Sheriff's and DA's office

[jotruk]

Lets just hope that the good old boy network there doesn't kick in and manage to hide the truth any more than it has.

[Shipscarver]

I hope the defendant sues the pants off the bums.