An Appalling Example of California Justice . . .

[slomotion]

Well, in the spirit of assuming the worst about the District Attorney, I think the decision has already been made that Perdock will not be criminally charged no matter what happens to Dinius.

[Hiracer]

Yes, I agree, which is why it's so important to get Dinius convicted. If Dinius is found innocent, the failure to then prosecute Perdock could be a career limiting move.

Ergo, they need the right judge to get the job done.

[Edit: the DA is, I assume, an elected office. He needs the Dinius conviction as cover to get re-elected.]

[Hiracer]

If Dinius is found innocent, which I pretty much doubt given how rigged this trial seems to be, it would put the DA is such an impossible position that to save his career he may decide to go after Perdock. Everybody sees that and is working hard to avoid that scenario.

The wild card, of course, is the jury. There is always the possibility that they will believe the witnesses, including the retired cop, who claim that the running lights were on. I think the whole criminal case against Dinius come down to that. That and the legal question of who has responsibility to assure that the lights were on.

The latter question could be good stuff for appeal, as I'm not convinced that CA law is clear. Thus, the county characters might lose control of the case as it goes up on an appeal that lies largely independent of factual issues.

[Hiracer]

Let's follow the logic of the DA and see where it takes us.

A sailboat owner with group of friends is coming home later than expected. They are not going to make it to the marina before dark. No one turns on the running lights.

Being a a retired attorney who is familiar with the Dinius case, the owner has a secret policy of having other people drive the boat while the owner manages the sails. He lets the 13 year old son of his neighbor drive the boat towards the marina. The kid is thrilled.

The sailboat is hit at night by a lowspeed power boat. The neighbor on the sailboat is killed.

Does the state prosecute the son for the death of his father, or the cunning attorney-owner? Who had the legal responsibility to make sure the running lights were on.

It is not unnrealistic for one of the appellate judges to pose a question like this to the DA when the Dinius case is on appeal.

What exactly does the DA say to this question?

Now change the facts so that the son of the killed neighber was 25, and all parties on the sailboat were drunk.

Who in that case has the legal responsibility to see that the running light were on? If the answer is different, why?

[Kanani]

Geez.......I'm re-thinking whether I want to buy another boat....

[Hiracer]

Penal Code
Manslaughter


192.5. Vehicular manslaughter pursuant to subdivision (b) of Section 191.5 and subdivision (c) of Section 192 is the unlawful killing of a human being without malice aforethought, and includes:
(a) Operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of an unlawful act, not amounting to felony, and with gross negligence; or operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.
(b) Operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of an unlawful act, not amounting to felony, but without gross negligence; or operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence.
(c) Operating a vessel in the commission of an unlawful act, not amounting to a felony, and with gross negligence; or operating a vessel in the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.
(d) Operating a vessel in the commission of an unlawful act, not amounting to a felony, but without gross negligence; or operating a vessel in the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence.

(Amended Sec. 3, Ch. 91, Stats. 2006. Effective January 1, 2007.)


Assuming this is the statute used to charge Dinius, as I read it, Dinius AND Weber AND everybody else who helped out sailing the boat can be charged with vehicle homicide. It never states that there is only one person OPERATING the vessel. It seems assumed but never explicitly stated.

This is one confusing statute. But I don't think is supports the delegation defense I referenced above. I think the owner is on the hook for all aspects of operating the vessel, unless the owner is incompacitated for some reason. The issue is, are the persons other than the owner who are also operating the vessel?

[Hiracer]

Which means if Dinius is found innocent we can guess that the DA will go after Weber, the owner of the sailboat, unless the jury determines that the lights were on.

And I wonder what changes were made to the statue in January 07?

[Hiracer]

Well this is interesting. The investigating cops took pictures of the sailboat's control panel and the switch for the running lights was off, while the switch for cabin lights was on. But the picture was taken after people working for Perdock had access to the sailboat.

Further, as I understand it, the only witnesses stating that the lights were off were those on Perdock's vessel (and at that speed you have to ask how they could see anything). The witnesses on the sailboat claim the lights were on.

The only witnesses who were not on either vessel of which I'm aware are all claiming that the running lights were on. And in two instances where the investigating officers learned of these disinterested eyewitnesses, the investigating officers failed to include their statements in the investigation report. The report was changed to include these witness statements only after the media reported the report's deficiencies.

So what we have here is the entire sherrif's department, the district attorney's office, and the judge all working in concert to keep this Perdock guy out of jail.

* * *

abc7news.com I-Team: Sailboat: Lights On or Off?
It’s a sheriff’s photograph of the sailboat’s control panel. As you can see, it shows the sailboat’s cabin lights may have been on at the time of the crash, and that its running lights may have been off. But, it’s not that simple. Marine investigators tell me the sailboat’s control panel works much like the circuit breakers in your home, and the switch for the running lights may have flipped off, when the powerboat hit the sailboat. Further, a sheriff’s video shows people moving around and in Perdock’s boat, just after the crash. Some of the deputies on the scene that night work directly for Perdock. In a deposition, he described his job as the number two man in the Sheriff’s Office – he oversees investigations, internal affairs, promotions, and the department’s finances. The defense may argue that someone could have changed the settings on the sailboat’s control panel, and that the chain of evidence may have been violated.

[Kanani]

Originally Posted by Hiracer

Well this is interesting. The investigating cops took pictures of the sailboat's control panel and the switch for the running lights was off, while the switch for cabin lights was on. But the picture was taken after people working for Perdock had access to the sailboat.

Further, as I understand it, the only witnesses stating that the lights were off were those on Perdock's vessel (and at that speed you have to ask how they could see anything). The witnesses on the sailboat claim the lights were on.

The only witnesses who were not on either vessel of which I'm aware are all claiming that the running lights were on. And in two instances where the investigating officers learned of these disinterested eyewitnesses, the investigating officers failed to include their statements in the investigation report. The report was changed to include these witness statements only after the media reported the report's deficiencies.

So what we have here is the entire sherrif's department, the district attorney's office, and the judge all working in concert to keep this Perdock guy out of jail.

* * *

abc7news.com I-Team: Sailboat: Lights On or Off?
It’s a sheriff’s photograph of the sailboat’s control panel. As you can see, it shows the sailboat’s cabin lights may have been on at the time of the crash, and that its running lights may have been off. But, it’s not that simple. Marine investigators tell me the sailboat’s control panel works much like the circuit breakers in your home, and the switch for the running lights may have flipped off, when the powerboat hit the sailboat. Further, a sheriff’s video shows people moving around and in Perdock’s boat, just after the crash. Some of the deputies on the scene that night work directly for Perdock. In a deposition, he described his job as the number two man in the Sheriff’s Office – he oversees investigations, internal affairs, promotions, and the department’s finances. The defense may argue that someone could have changed the settings on the sailboat’s control panel, and that the chain of evidence may have been violated.

The thing that bothers me about the statements from the witnesses on the power boat is, if they "witnessed" that the lights were off, how can they say that they didn't see the sailboat? Either they saw the sailboat with the lights off and they failed to avoid it or they didn't see the sailboat at all and therefore could not have known whether the lights were on or off.......they can't have it both ways.

From the looks of the latest developments, some heads should roll over this one. Clearly, this was not handled like a "Crime scene". Anyone close to this Perdock guy should have had enough sense to stay away from the evidence and allow other agencies to take charge. To me, that in itself, looks pretty damning.

[Hiracer]

Good point.

Even if Perdock saw nothing you got to wonder why those on his boat who did see the sailboat (without its lights on) weren't yelling at Perdock to avoid hitting the sailboat.

Except Perdock's boat was going so fast they can say there was no time to react once they saw the sailboat.

Which, of course, is more evidence that Perdock was going too fast for conditions.

[jdoe71]

Originally Posted by Kanani

Anyone close to this Perdock guy should have had enough sense to stay away from the evidence and allow other agencies to take charge. To me, that in itself, looks pretty damning.

Good and very accurate observation. The problem is that cops see nothing wrong with them "investigating" themselves. Having been an insider on 22 years worth of these "investigations", I have a big problem with it.

[Kanani]

Originally Posted by Hiracer

Good point.

Even if Perdock saw nothing you got to wonder why those on his boat who did see the sailboat (without its lights on) weren't yelling at Perdock to avoid hitting the sailboat.

Except Perdock's boat was going so fast they can say there was no time to react once they saw the sailboat.

Which, of course, is more evidence that Perdock was going too fast for conditions.

If ANYONE on the powerboat testifies that they observed the sailboat at all....one must ask, "Why did the person that was piloting the vessel not see the sailboat". It is the responsibility of the person at the helm to be the one that is responsible for "Observation". There is just no way of avoiding responsiblity for this IMO.. The passangers on the powerboat hung him with their own statements IMO. Then again.....I don't have all of the facts and I'm not on the jury, so it matters little what I or any of us think.

[David M]

The COLREG's do not necessarily apply to landlocked lakes. So to quote the COLREG's may or may not be valid to this case. Local government has the option to adopt the COLREG's as law if they choose.

I have been following this in Latitude 38 as well.

Both parties appear to be at fault. The sailboat for not showing any lights and the Sheriff for excessive speed. It's just common sense that you don't run a powerboat at night at some ridiculous speed with no radar or a proper lookout. For all the Sheriff knows there could have been a log in the water that could have sent him overboard or killed him. That was very wreckless operation of a vessel.

It was irresponsible, and deadly, of the sailer to not be showing any lights.

Both parties share blame. They were both doing unsafe things.

How to weight the responsibility is the big question.

[boatbrain]

The California Dept. of Justice report has been issued, apparently completed on Dec. 10, but the Lake County Sheriff's Office has chosen to release it on the Friday right before a four day Christmas weekend.

The bottom line in this report, unless I misread it, is that DOJ knows next to nothing, since they admit, in fact, they seem to make a point of saying it more than once, they are not reinvestigating the accident, and all the information they have is from the Lake County Sheriff's Dept.

They address the allegations the powerboat pilot did not have a blood test taken until 24 hours later, but they don't indicate they did anything to independently investigate it, they just use the info. given them by the Lake County Sheriff's Dept.

But I think the biggest omission is not even mentioning, let alone independently investigating, the allegations of witnesses that the sailboat's running lights were on, and the Lake County Deputies basically blew them off when they told them. That is not mentioned at all as a problem with the investigation.

Finally, they say the lights were taken to a lab and the lab determined they were not one, implying there was some forensic basis for that, but the only actual statement to support that claim is that the panel switch for the running lights was in the "OFF" position, not something you need a lab to determine, so that seems like kind of a non sequitir.

Reading it very cursorily, you would think it's a DOJ endorsement of the actions of Lake County Sheriff's Dept, but really it's a nothing, nothing at all, and the people who wrote it had to know they were not saying anything, so their "findings" which come down to nothing was done by LCSD, are equally meaningless.

This report makes me MORE suspicious of dirty dealings, not less.

Here is a link, I hope:

Lake County Sheriff's Department

[boatbrain]

There was a lot of discussion on this in some local news boards. A picture of the switch panel showed running lights "OFF" and Cabin lights "ON". The argument was made, coming from behind with main hatch open, the cabin light alone would have warned anyone who was going a reasonable speed and maintaining a proper lookout.

My own point is, it's very easy, in the confusion after the collision for anyone there to have moved any of the switches to the "OFF" position. The running lights could have been "ON" and turned off by someone trying to turn on the radio to call for help, or just by someone flailing around.

The disturbing thing was the claim made by witnesses on shore that the deputies blew them off when they said the lights were "ON", and that is the genesis for a lot of the suspicion. Certainly, the deputies did NOT know if the lights were on or not, so rejecting any witness testimony, (apparently, the names of those who said the lights were on were not even included in the report originally) was illogical at that piont in time.

The other thing alleged on the other boards was that some of the people brought in from Sacramento County Sheriff's Dept to do the first outside report were actually former staff in the Lake County SD. Don't know if that is true or not, but it was very interesting.

This new report by CA DOJ is really a nothing. It's only purpose seems to have been to give the Lake County folks a "thumbs up" to the general public which will not carefully read it.