An Appalling Example of California Justice . . .

[Kai Nui]

John, accurate definitions, and the point is a good one. Dan, an opposing opinion is appreciated by all. It gives everyone food for thought, so your comments are certainly appreciated. This is a great discussion, and very relevant, so lets continue to keep it civil, and keep this thread going. A solid conclusion can only be based on all of the facts, and even the jury will be limited to what is allowed to be presented in court. The only people who know what really happened are those involved, and it is unlikely that any of them will admit to anything that is not in their favor.
I believe we do have enough information to assess that the power boat was traveling at a speed unsafe for the conditions. I also believe we have enough information to assess that the sail boat was not in compliance with the light regs.
Finally, I feel that the facts that we do have certainly do not prove beyond a reasonable doubt, that intoxication of the sail boat's crew was a contributing factor in the accident. Since the charges stem from a BWI, resulting in a loss of life, it seems to me that unless some evidence proving that the intoxication of the helmsman did contribute to the accident, the evidence does not support a conviction. That is only my opinion, but I would be very interested to see any discussion on how the intoxication of the sail boat crew was a factor.
And KnottyGirlz, hearing a power boat, and doing something about it are two different things. One, if the sail boat could reasonably expect the power boat to see them, they would likely have had no reason to take action. If they had no propulsion aside from sails, and, as the report mentions, they were in calm or very light winds, their ability to take action would hvae been very limited. Consider at what distance you might be able to determine a small boat in the dark was on a collision course with you, and how long it would take, on that realization, to take action. Then consider this is a relatively small lake, and the likelyhood that an approaching boat would be doing so with the intent of either a social meeting, or an offer of assistance. It is quite possible (speculating here), that the sail crew was under the impression that the approaching vessel intended to offer assistance, and felt no danger until it was too late to take action.

[Hiracer]

Originally Posted by Kai Nui

I also believe we have enough information to assess that the sail boat was not in compliance with the light regs.

There are witness accounts that the cabin lights for the sailboat were on at the time of impact.

June 13, 2007

Here something else I didn't know. Based on the self-incriminating testimony of the deputy, the Sacramento County Sheriff's Investigator recommend that the deputy be indicted, largely on his self-incriminating admission that he was going 40 to 45 mph. (Witnesses, however, estimated his speed to have been 50 - 55 mph.) The 24' motor vessel had a 385 hp V-8 Mercruiser engine, so these speeds are quite possible.

The woman killed was a babe, IMO.

[Ex-Calif]

Originally Posted by Hiracer

We also know that the motor vessel was traveling--at night--at a rate of speed sufficient to destroy two vessels and kill a person, and that the operator of the motor vessel knew that there were other recreational vessels on the lake.

<snip>

"Criminal law recognises recklessness as one of the mens rea elements to establish liability. It shows less culpability than intention, but more culpability than criminal negligence. . . . <snip>"

I am not disputing that the motorboat hit the sailboat. It is obvious the motor boat was traveling at a rate of speed high enough to kill a person and destroy the boats - BTW that's not much speed needed if the truth be told.

What is alarming is that you don't appear to recognize that sailing a boat at night, drunk without lights or auxiliary power is a problem.

Nice catch on "reckless" although I would refrain from taking legal advice from Wikpedia.

Unless I missed something there are no criminal charges pending. This is a civil matter and like all civil matters everyone with money will be brought to court to pay up shares of the damages including the makers of the boats I presume.

If anything good comes of this I hope that the two stupid sailors who survived and got their friend killed will have learned something about operating boats at night.

I also sincerely hope that the powerboater equips his next boat with million candlepower spotlights so he might have a chance of spotting said ignorant sailors.

[Kai Nui]

Which only means that it would be reasonable for the crew to assume the power boat would see them, but they are still in violation. Which doesn't make them at fault.

[TaoJones]

Originally Posted by Ex-Calif

Unless I missed something there are no criminal charges pending. This is a civil matter and like all civil matters everyone with money will be brought to court to pay up shares of the damages including the makers of the boats I presume.

If anything good comes of this I hope that the two stupid sailors who survived and got their friend killed will have learned something about operating boats at night.

Yes, ex-calif, you did miss a very big "something" . . . the District Attorney could find no reason to charge his friend, the sheriff's deputy operating the power vessel, nor the owner of the sailing vessel. Instead, he has charged Bismarck Dinius, the unfortunate guest aboard the sailing vessel who happened to be sitting at the vessel's helm, with vehicular manslaughter. The onerous cost of defending himself will be an extremely heavy burden, to say nothing of the fact that should he be convicted, he faces years in prison.

You also missed the fact that there were five people in the sailboat, not just the victim, her fiance (the sailboat's owner) and the unfortunate Mr. Dinius. In addition, there were three "survivors" on the speeding power vessel. The miracle in this case is that the deputy only killed one of the sailing party - there could easily have been several victims, including the deputy's guest and that guest's 14-year old daughter.

So while there will undoubtedly be civil litigation after the criminal trial concludes, that will only cost the reckless deputy sheriff (or, more than likely, his insurance company) some amount of money. It could very easily cost Bismarck Dinius, the "operator" of the sailing vessel, his freedom and everything he's worked for. I find that an outrageous miscarriage of justice!

TaoJones

[Hiracer]

Originally Posted by Kai Nui

Which only means that it would be reasonable for the crew to assume the power boat would see them, but they are still in violation. Which doesn't make them at fault.

I agree that the cabin lights do not absolve the sailing parties from their violation(s) of the rules of the road AND their responsibility for the accident. I also think the cabin lights increase the culpabality of the deputy, because, if the lights were in fact on are reported by witnesses, the deputy should have seen the sailboat, unless his angle of attack was such that the sailboat was still not visible, which is a possibility (say, head on if there was no forward facing port or hatch).

[Hiracer]

Originally Posted by Ex-Calif

What is alarming is that you don't appear to recognize that sailing a boat at night, drunk without lights or auxiliary power is a problem.

Please be kind enough not to put words in my mouth. Early in my participation in this thread I allocated fault in approximate terms of 75% to the deputy and 25% to sailing vessel. Perhaps you missed that.

Originally Posted by Ex-Calif

Nice catch on "reckless" although I would refrain from taking legal advice from Wikpedia..

This time they got it right.

Originally Posted by Ex-Calif

Unless I missed something there are no criminal charges pending.

Yes, as noted above, you have only missed the entire point of this thread. The DA has asserted criminal charges against the wrong party. This seems to bother everybody but you.

At the very worst, both parties should have been charged. The failure to charge the party most responsible for this tragic accident is an abortion of the so-called criminal justice system.

Originally Posted by Ex-Calif

including the makers of the boats I presume.

That remark says a lot.

Originally Posted by Ex-Calif

If anything good comes of this I hope that the two stupid sailors who survived and got their friend killed will have learned something about operating boats at night.

Yes, as in motor vessels are sometimes operated with criminal recklessness, and even a running lights may not save one from said recklessness. We should all pray for boardsailers, canoests, and the like who recreate on that lake. With the deputies and DAs they've been dealt with, praying is all they got. That and maybe shuffleboard.

Originally Posted by Ex-Calif

I also sincerely hope that the powerboater equips his next boat with million candlepower spotlights so he might have a chance of spotting said ignorant sailors.

Yes, because it surely would be too much to ask them to curtail their reckless speeds, wouldn't it? 40 to 45 mph by his own lying admission.

[Hiracer]

I should confess. I have a family member who until recently was a DA.

I know how it is among DAs and law enforcement officers. It's a tight group on a tough mission to save the world from the evil and lowlife that is assaulting us from every quarter. They have a holy writ.

But I also know that my brother would never in a million years pull a stunt like this. He would have gone after that deputy in a heartbeat. What has happened here is just plain wrong. You know it's wrong when the DA tries to explain himself by saying he couldn't prove the speed of the motor vessel and, therefore, would be unable to obtain a conviction. What BS. I got an 11 year that could have prosecuted the case against the deputy.

Yes, the DA's career in that community would be shot if he tried for a conviction against the deputy. The wagons in law enforcement would circle against him. He would not receive much cooperation from law enforcement in the future. His overall conviction rate would go down. He would be forced to go into defense, or move to another community. That's true; I admit it.

But, hey, those tough choices come with the turf. If you can't make the right choices just because they are tough choices, then you got no business being a DA. It's not a job for every lawyer. Like I said, my brother would have put that deputy behind bars, and got him fired to boot. And then he may very well have gone after the sailboat party too.

It's a shame that that community got the short end of the stick when it comes to DAs. They deserve better. Everybody does.

[Hiracer]

Immediately after my post above, while walking to lunch with no small ironic turn of serendipity, I noticed this article on a news stand:

Tragedy results when cops let fellow cops drive drunk

It is another example of how law enforcement tends to circle the wagons, to the detriment of society at large.

[Ex-Calif]

Hiracer - You and I are probably not very far apart on this thing and I apologize for not keeping the entire topic in context. I did go back and reread some of your previous comments after my last post and it is unfair of me to characterize you as "one-sided". I also did a fair amount of reflecting on this while working on the boat yesterday.

Additionally, I did some googling on this and found some court transcripts from Dinius's criminal trial as well as some "fair and balanced" media reports not from lattitude 38.

I guess what has my cockels up is that a lot of people want to "burn" the powerboat guy simply because he is law enforcement and/or a powerboater. He is a freakin' eagle scout, had spent the day with scouts and went for a "joyride" after dark. I bet he was the only person on the lake that had not consumed any alcohol that day. He seems like a pretty good guy who made a bad decision to drive fast. BTW - Why is joyride a bad term. I am joyful everytime I sail.

Dinius had met Weber only a few days before and was not an experienced sailor, "Here. Hold the tiller while I go get a couple more brewskis?" - Bam - Felony vehicular manslaughter. Dinius is the second victim in this tragedy.

The DA asked for an opinion on whether he should recuse himself because of the relationship with the SO. He was told not to recuse himself and go prosecute Dinius.

The criminal case against the sherrif won't stand up. You can't prove boat speed, he wasn't drunk, he's a model citizen, there is no speed limit on the lake and the sailboat wasn't visible. It is not winnable and shouldn't be prosecuted. It is a waste of time. It's not what you think, it's what can be proven. You can't prove felony vehicular manslaughter on the Sherrif.

In my opinion no one should be criminally charged except maybe the sailboat owner. In my opinion he is the master of the boat and should be supervising it's operation. He is most responsible to make sure lights are displayed and the boat is operated properly. Here in Singapore you need a license to operate a powered boat. If my 9 y/o is holding the tiller and we wreck, I am reponsible. Licensing makes things clear - but that's another topic.

Regarding cabin lights? It's meaningless. They are the wrong kind of lights if in fact they were on. Besides the powerboat came across the sailboats transom where seeing a cabin light would be all but impossible.

Regards the civil matter - Welcome to America where people die of old age and we look for someone to sue. Somewhere we decided that people should not die until they are 101 years old and die in their sleep. And even then we want to take a good hard look at the retirement home.

A young lady died while boating. It is a tragedy. For her and everyone around the accident. Should someone's heirs get rich over it? Well America says yes.

Based on everything I have absorbed a becalmed, unpowered, unlit sailboat should not have been out there. No way, no how. And if the sailboat wasn't out there the powerboat could not have hit it. The powerboat was going fast. Too fast? I can't judge. But if the powerboat was idling along at 5 knots - no one would have died.

75% - Weber
25% Sherrif

[Hiracer]

I have no clue why you claim that boat speed cannot be proven, unless you just like to twist people's tail. You have claimed this before, in the face of overwhelming evidence to the contrary.

Let me lay it out, real simple like:

1) The deputy admits he was going 40m - 45mph.

2) Witnesses (pural) peg him at 50 - 55 mph.

3) Forensic experts can reconstruct boat speed, easily.

Bottom line: You think that 40 - 50 is a reasonable speed under the conditions, viz., at night with other people on the lake. I think it's criminally reckless. We just don't agree about what is a safe speed.

In any case, it's not your opinion or mine that counts. It's the jury's opinion.

And the fact is, most people and by extension most jury members would not want themselves or their kids exposed to this kind of risk. Most people instinctively put themselves in the position of being on the lake and ask themselves whether they want to permit drivers of motor boats to travel 40 - 45 mph (and more likely 50 - 55mph) at night around them. That is the psychology of a trial. Everybody knows that running lights are small, and even if the sailboat had its running lights on, and even if the sailors were not drunk, the motor vessel at that speed would still had a significant chance of plowing into them, because at that speed it's hard to see much of anything. Everybody instinctly knows that the high speed of the motor boat was the greatest causal element of this accident.

The charge against the depty is very winnable and the outcry from the failure to charge the deputy and the ensuing media attention is all the more proof of how winnable the case is.

[Hiracer]

Originally Posted by Ex-Calif

Establishing the relative speeds of the boat will be easy based on the damage. Simple physics.

Originally Posted by Ex-Calif

The criminal case against the sherrif won't stand up. You can't prove boat speed

Make up your mind.

Are you really this clueless or just argumentative?

[Ex-Calif]

Originally Posted by Hiracer

<snip)
Bottom line: You think that 40 - 50 is a reasonable speed under the conditions, viz., at night with other people on the lake.

<snip>
In any case, it's not your opinion or mine that counts. It's the jury's opinion.

And the fact is, most people and by extension most jury members would not want themselves or their kids exposed to this kind of risk.

I don't know what a reasonable speed is. The potential case against the Sherrif was reviewed one-over-one and decided to not be winnable - it was not just the DA acting on his own. The remark about proving the boat speed was from a Clearake newspaper article - the prosecution can't prove beyond a reasonable doubt what the speed was. I know that an approximation can be made (I even said so in an earlier post) but even if not - the sherrif admitted 40-45 (which he definitely wouldn't do in court btw) an additional 10 knots won't matter a hoot. 45 is obviously enough. The point is there is no speed limit on the lake so you can't pin a clear recklessness on him.

Regarding risk - Try to get on the other side of the issue for one second.

"How about we go get drunk, sail our unlighted, unpowered boat into the middle of Clearlake at night where we know there are a large number of powerboats and hopefully get becalmed?"

The risks were all taken by the sailboaters.

You mentioned kayakers and so on. How about this one from your 10 year old.

"Dad. Can I row the kayak across Clearlake at night with no lights?"

[Hiracer]

Originally Posted by Ex-Calif

I don't know what a reasonable speed is.

Thanks. I'm done.

[Ex-Calif]

Originally Posted by Hiracer

Thanks. I'm done.

No. You just choose to quit.

BTW - Not to take the high road or anything but...

"Are you really this clueless or just argumentative?"

is uncalled for. Your repeated personal attacks on me say more about you than anything I could say.

The context of my reply is that you can make the calculations and experiments to determine an approximate boat speed regardless of whether the Sherrif will admit the speed in court, which he won't. Expert testimony from two sides will give a boat speed. Eyewitnesses will be put on the stand and they will have conflicting speeds. The point is that the speed of the boat is not important in winning a VM conviction and the DA knows it. Apparently you are unwilling or unable to absorb this point.

And don't feel bad about being unable to sway my opinion on this. No one in an internet forum changes their mind. I don't expect you to change your unwinnable theory about the Sherrif's liability but I would hope for a more civil discussion.

Bottom line is the sailboat never should have been out there.

The only thing you seem to agree with me on is that what we think doesn't matter. It's what the legal system decides.