An Appalling Example of California Justice . . .

[Hiracer]

That's a really good point, one I hope defense counsel makes because it has the potential to be a winner. The wrong guy has been charged here--at many different levels.

[Hiracer]

The irony of a not-guilty verdict because Weber was the real operator of the vessel makes me chuckle.

If the boat was dead in the water on account of no wind, then I think its really hard to say that someone holding an utterly useless tiller is an operator of the vessel, particularly if they have it just temporarily.

What do we know about wind conditions at the time of the accident? Any weather records somebody can track down for the lake that night?

It generally does take more than one person to 'operate' a 27' sailboat. While it can been done solo, typically that is not the case if you have crew and particularly so if the crew is experienced, even if just a little. Operating the boat is a joint exercise. Who then would have responsibility to make sure the lights are on? All members on the boat who might help to 'operate' the boat, or just the captain/owner?

How many here, in an effort to reduce your criminal and civil liability, tell the captain what to do while visiting as guest on somebody else's boat? Given this case, maybe you should. That or don't help out at all so you can't be argued to have assumed some level of responsibility to operate the vessel.

Mmm. Maybe next time the bell tolls for me. Or you.

[Ex-Calif]

Originally Posted by Hiracer

Operating the boat is a joint exercise. Who then would have responsibility to make sure the lights are on? All members on the boat who might help to 'operate' the boat, or just the captain/owner?

Well I hope they don't make it more complicated than it is. It seems the law is clear on this point. The tillerman is the operator. Agree or not, correct or not.

The key is knowing your responsibilities when taking the tiller.

[slomotion]

For DUI purposes, I'm afraid Dan is correct. For manslaughter purposes, I'm not so sure, although I suspect that the helmsman is simply deemed to be in command and control under state law for this purpose as well. Still, if hypothetically the boat is dead in the water, it would not be unsafe or unusual to have no one at the tiller at all. Under those circumstances, surely Webber is the one who gets charged. Why should it make a difference that 'someone' instead of 'no one' is sitting at the helm of an unsteerable boat? If the boat is dead in the water would it be negligent to let the 6 year old daughter of a guest sit at the tiller? Would she then be deemed to be in command and control? Is the adult guest then charged because he/she is responsible for the comand and control decisions of his/her daughter?

[Ex-Calif]

What if the autopilot was driving the boat - surely webber would be in the hot seat at present.

[GordMay]

Originally Posted by slomotion

.. I suspect that the helmsman is simply deemed to be in command and control under state law for this purpose as well ...

This may be true; but counters maritime tradition & law.
The Captain is always responsible - ultimately, for everything aboard ship.

[Hiracer]

I don't profess to understand California statutes, but with respect to a manslaughter charge while operating a vessel, they do seem to refer to some marine type statutes, specifically "Section 655 of the Harbors and Navigation Code." Perhaps maritime concepts are incorporated into the Cal statutes. I don't know.

[Hiracer]

I believe this is the statute used to charge Dinius: Penal Code Section 192.5 - Manslaughter

The other manslaughter statutes refer to a vehicle, and the definition of vehicle makes clear that a vehicle is used on roads. The above statute is the only one I can find for manslaughter while operating a vessel. The definition of vessel clearly includes a sailboat.

I cannot find any statutory definition of "operating," thus leaving the door open for the judge to borrow maritime concepts to define it. Perhaps there already is caselaw rejecting or accepting this approach.

Further, from the wording of the statute, I see no reason for a judge to conclude that there is only one person operating a sailboat at any given time. The statute doesn't use the term 'operator.' Any and all persons operating a vessel fall within the ambit of the statute.

Strange and convoluted wording.

If more than one person can be operating a vessel such as a sailboat, then it stands to reason that the DA is going to have to prove which person's activity was the proximate cause of death. If there are three activities occuring on a vessel, for example, not every one of them may be the promixate cause of death. Does grabbing the helm to help out automatically make one responsible for turning on the running lights, especially if the boat left the marina quite a bit of time ago?

This case is gonna be a bonanza for some attorneys. It's a real can of worms.

I agree, however, that if you so much as touch the helm while drunk, you have probably committed a DUI. Dinius is sunk on that charge--unless the boat was absolutely dead in the water from a total lack of wind and the tiller was incapable of navigating the vessel in any fashion whatsoever.

Question: is it a DUI so sit drunk in the driver's seat of a parked car?

Like an onion, this case.

[TaoJones]

Originally Posted by Hiracer

Question: is it a DUI to sit drunk in the driver's seat of a parked car?

A production assistant who worked for me a few years ago found out the answer to that very question one night when he left a bar in Burbank, got in his car, and went . . . nowhere.

Well, nowhere in his car, anyway.

The Burbank police hauled him out of his car a few hours later, cuffed him, took him to jail, and charged him with drunk driving. Apparently, the assumption is that if you're drunk and you're in the driver's seat, you very well might do so.

In his case, they kicked him loose the next morning when he'd sobered up, but by then he had missed a flight to San Francisco for a commercial shoot, and lost his job as a result.

TaoJones

[TaoJones]

Today's edition of 'Lectronic Latitude doesn't add much to the story, but does provide an update on the current state of the legal process:

~ ~ ~

"Perdock's Story Keeps Changing

"December 7, 2007 – Lake County

"Bismarck Dinius, who was charged with manslaughter in the 2006 death of Lynn Thornton, appeared in Lake County Superior Court November 29 to plead not guilty to the charges, and to request that Lake County prosecutors be removed from the case. . . . "

~ ~ ~

To read the entire piece, go to:

Latitude 38 - The West's Premier Sailing & Marine Magazine

TaoJones

[Kai Nui]

Thanks Tao. I appreciate you keeping us up to date as things progress.

[Hiracer]

"Tonight, we show you how the six judges in Lake County removed themselves from Perdock’s on-going divorce case; in court papers, several of the judges called him “a personal acquaintance.” Yet, the judges did not remove themselves from the boat crash case, also involving Perdock.

The defense team is preparing for a trial, and they’ve interviewed Perdock’s soon-to-be ex-wife. Donna Perdock echoed something we’d heard from several residents around Clear Lake – that Russell Perdock likes to drive fast, on the road and the water. In a transcript of Donna Perdock’s conversation with the Dinius defense team, she said, “I hated the way he drove. I was always white knuckled.” Donna Perdock said Russell would regularly drive his Baja speedboat 70 mph during the day, and that the normal speed at night was around 40 mph. They’d often take the boat across the lake to concerts at Konocti Resort.

Donna Perdock gives a dim view of the prospects for a fair trial: “Russell has been with the Sheriff’s Department for a very long time. … If I was your client, I would not want my trial here.” She continues, “Russell’s involved with this accident, and he knows everyone here. I just can’t imagine having that against me.”"

abc7news.com I-Team: A Fast Boat

The stench from this case just keeps getting worse and worse.

[Hiracer]

Here is my question: What's so different about the criminal case that a judge who recused himself from the divorce case suddently finds no need to recuse himself from the criminal case? This is inconsistant and makes no sense. The need to avoid the conflict of interest or the appearance of conflict applies equally in both cases. There is nothing inherent in the divorce case regarding a conflict of interest that is different from a criminal case. The judge is being inconsistant without reason when he says he can judge one but not the other.

This reeks.

abc7news.com: Fatal boat crash: Conflict of interest? 12/18/07

All six judges in Lake County removed themselves from the case. Several called Perdock "a personal acquaintance" and they cited the California Code of Civil Procedure: "a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial."
Dinius' lawyer wants to know, if the judges removed themselves from Perdock's divorce case, why didn't they remove themselves from the boat crash case, as well.

"Judges who've disqualified themselves in another case involving Perdock should not be participating in this case involving Perdock," says Haltom.
"It's not just can you be fair, it's can you avoid any appearance of impropriety," says former prosecutor and ABC7 legal analyst Dean Johnson. "It really has bad implications for the justice system in Lake County and I'm troubled by it. I think these judges could ethically remove themselves and remove part of the problem and do something towards restoring faith in the system."

When the Dinius defense filed a motion to disqualify the judges, one dropped out voluntarily, three others failed to answer -- effectively taking themselves out. The final two responded they were not biased and would not remove themselves from the case.

The judge now assigned to the case, Robert Crone, disclosed some details of his contact with Perdock at a hearing in August.

"I performed a marriage ceremony that involved he and his wife," says Lake County Superior Court Judge Robert Crone.

In his response to the defense motion, Judge Crone added that he would see Perdock at quarterly meetings on court security when the chief deputy testified in his courtroom and "in the courthouse or on the street and exchange brief greetings."

UC Hastings law professor, David Levine, says that's not enough to disqualify Crone or any of the other judges from the boat crash case.
"I think what these judges are saying is we can be fair and we don't want to impose this burden on a judge in another place," says Prof. Levine.
The issue went before a Napa Superior Court judge last month who denied the defense motion to remove Crone and another judge, saying only "there is no evidentiary basis in the record to support the conclusion that they are disqualified."

"Local judges have to be able to decide these cases and indeed they have their own duty to sit. It's not appropriate for these judges to step out of these cases too quickly," says Prof. Levine.

"There's simply no reason why these two judges couldn't recuse themselves. It's not going to cause a lot of expense or disruption. It's very easy to bring in a retired judge or visiting judge. It's done all the time," says Johnson.

[slomotion]

The difference is that in the divorce case Perdock is not just a witness. He is a party and the judge is the finder of fact - there is no jury.

I'm not saying that the judge should not recuse himself in the criminal case. It's just that the issue is much clearer in the divorce case.

[Hiracer]

Originally Posted by slomotion

The difference is that in the divorce case Perdock is not just a witness. He is a party and the judge is the finder of fact - there is no jury.

I'm not saying that the judge should not recuse himself in the criminal case. It's just that the issue is much clearer in the divorce case.

I'm sure that's what the judge would like us to believe.

There are two possible defendants in the criminal case. If Dinius is found innocent, that implicates Perdock. Perdock is way more than just a witness. He's a potential defendant, depending on the outcome of the case.