An Appalling Example of California Justice . . .

[slomotion]

Obviously, Dinius is guilty of DUI - the boat wasn’t anchored, moored or, docked; it was under way (although essentially dead in the water due to lack of wind) and he was the ‘operator.’ It wouldn’t surprise me to learn that under notoriously goofy California law, this is somehow by itself sufficient to support a manslaughter/vehicular homicide charge regardless of the proximate cause of the accident.

It’s kind of interesting that none of the subsequent reports - at least none of them that are described in this thread - identify anyone who claims that the sailboat was not displaying running lights. Presumably, it is only the driver of the power boat and possibly his passengers who make this claim. If so, then sure - it’s a credibility issue, and you can let a jury decide who to believe. But I can’t believe that any competent prosecutor wants to take this to trial - it’s gotta be politics/corruption.

[Ex-Calif]

http://www.news10.net/display_story.aspx?storyid=32014

http://www.news10.net/display_story.aspx?storyid=31946

http://www.news10.net/display_story.aspx?storyid=31592

http://www.news10.net/display_story.aspx?storyid=31859

[Hiracer]

Originally Posted by slomotion

It’s kind of interesting that none of the subsequent reports - at least none of them that are described in this thread - identify anyone who claims that the sailboat was not displaying running lights. Presumably, it is only the driver of the power boat and possibly his passengers who make this claim. If so, then sure - it’s a credibility issue, and you can let a jury decide who to believe. But I can’t believe that any competent prosecutor wants to take this to trial - it’s gotta be politics/corruption.

There are 9 witnesses who claim the lights were on; 7 who said they were not. Most of the 7 are connected to the Deputy party. Two were fishermen on the lake who reportedly have credibility issues. The 9 come from the sailboat and various third parties, including a retired cop who said to third parties before the accident that the deputy was going so fast (his estimate 50 mph) that the deputy was going to kill somebody that night. This retired cop was one of the witnesses whose testimony was intentionally left out of the investigation report until the media discovered the cover up.

Ouch.

* * *

Connecting a nexus between the drinking on the sailboat and the cause of the accident would take a prosecutor of the highest skill level. I doubt Lake County has a prosecutor of the highest skill level. These are just good old boys. Besides, from reading the blog, it seems that unless the defense attorney is an idiot (which I doubt), the jury is going to be predisposed against the DA's office, such is DA's local reputation.

Wouldn't it be funny if the DA attempts to get the trial moved out of Lake County, claiming that the media has biased the jury pool? They need to do something creative, as the DA's office has dug themselves into some kind of a hole.

The people on the sailboat were guilty of DUI and have some liability exposure in a civil claim. Manslaughter, no way. The DA's office is dirty and is attempting to protect the deputy. God bless America and the disinfecting effects of a free media. There is a moral to be learned here about the importance of a free media.

[TaoJones]

Originally Posted by Hiracer

Recusal doesn't mean that the charges against Dinius would be dropped.

Recusal goes to the limited issue of who prosecutes the case, not who is being prosecuted. Apparently, the defense counsel thinks that who is being prosecuted is tied up with who is doing the prosecuting; i.e., defense thinks the DA is protecting the deputy.

You are quite correct about what a recusal of the Lake County DA would mean, John. It won't necessarily end the case against Bismarck Dinius.

However, it might.

As in the most notorious case of prosecutorial misconduct recently, the Duke Rape Case, once the case was turned over to the North Carolina Attorney General's Office for prosecution, and investigators who didn't have an agenda were put on it, it quickly (three-four months) became clear that the original charges were bogus. When Roy Cooper, the NC AG, went on television and proclaimed that Mike Nifong was "a rogue prosecutor," and that the three Duke students were "actually innocent," the whole case collapsed.

Of course, in that instance, the case was only handed off to the State AG after the State Bar Association filed a complaint against Nifong. At that point, he could not continue to prosecute the case himself (nor his office).

In the absence of such a complaint by the California State Bar, an appeal to the California AG was the most direct route to having the case removed from the Lake County prosecutor.

TaoJones

[Hiracer]

Originally Posted by TaoJones

You are quite correct about what a recusal of the Lake County DA would mean, John. It won't necessarily end the case against Bismarck Dinius.

However, it might.

Agreed. In fact, I think it almost certainly would end the case for the reasons you state. I was speaking about recusal in a diffinitional sense because I'm not sure everybody here knew what it meant.

I like the aproach of making a bar association complaint. Most Bar Associations pretty much support attorneys, but there is no downside to the defense for trying it. Might work to shed the DA's involvement.

At this point, I really think the DA's office is looking for a way to get out of the case without admitting to participation in a cover up. The deck is stacked against them at so many levels. Brown won't let them off the hook, the local citizenry hates them so the jury pool is going to be difficult, the evidence is really weak, and the investigation is nearly criminal in itself. This has the possibility of being a career limiting case.

Couldn't happen to a nicer bunch of good of boys.

But I worry about the impartiality of the local judges. That might be the DA's ace in the hole. OTOH, if the judges get too much bad press, some young wippersnapper is liable to run against them some day and remind everybody about the Dinius case. They can think that far ahead, so the judges got to be looking over their shoulders too. None of them want to go back into private practice, for sure.

Lots of ulcers down there right now. Nobody is happy.

[Kai Nui]

OK, here's another tidbit to chew on. Has anyone investigated whether the lights were functional? In fact, has anyone bothered to recover, and investigate the lights as a component at all? If these components are available (an they likely are), it is not hard to determine if they were on if broken on impact. Since so much of this case seems to hinge on whether or not the nav lights were on, I would think this would be an important part of the investigation. As for witnesses claiming to see the stern light from shore, along with cabin lights, I would not put much weight on this, as it could well have been a cabin light they observed.

[Hiracer]

Originally Posted by Kai Nui

As for witnesses claiming to see the stern light from shore, along with cabin lights, I would not put much weight on this, as it could well have been a cabin light they observed.

One of the witnesses saw the sailboat from the dock, leave the dock, with the running lights on. Up close and personal.

* * *

In any case, the defense will have experts testify at trial that at 40+ mph on that lake, the sailboat would likely not have been very visible even if the lights were on. May even have a movie for the jury to watch of what it's like to be on a boat at night at that speed.

[Kai Nui]

Good! ..............

[TaoJones]

Originally Posted by Kai Nui

OK, here's another tidbit to chew on. Has anyone investigated whether the lights were functional? In fact, has anyone bothered to recover, and investigate the lights as a component at all? If these components are available (an they likely are), it is not hard to determine if they were on if broken on impact. Since so much of this case seems to hinge on whether or not the nav lights were on, I would think this would be an important part of the investigation. As for witnesses claiming to see the stern light from shore, along with cabin lights, I would not put much weight on this, as it could well have been a cabin light they observed.

The only problem I see with what you suggest, Kai Nui, is that if this case was "managed" by the investigating deputies from the time they arrived on the scene, the evidence you cite would undoubtedly have been tampered with. The Sheriff's Department impounded all of the evidence (both boats), so if they wanted to make the "no lights" story stick, they surely didn't leave any evidence that contradicts that. And, regarding the collection of evidence, the deputy who was at the marina the next morning - and wouldn't take the marina owner's statement - was there to impound the sailboat owner's trailer.

To your last point, regarding not putting much weight on witnesses claims to having seen the sailboat's lights on, here is the marina owner's sworn declaration:

http://www.news10.net/news/pdf/jones_declaration.pdf

The intoxication aboard the sailboat hurts Dinius, but there is at least some suggestion that the Sheriff's Chief Deputy may have also been drinking (see the references above to the possibility that his blood wasn't drawn for testing until more than 24 hours after the crash). So, unless a picture could be painted of an unlit sailboat manned by drunks, the hot-rodding deputy would be looking at a career-ending manslaughter charge.

How fortunate for him that the only people on earth in a position to help him, and with a disposition to do so, were "investigating" the accident.

TaoJones

[Hiracer]

Originally Posted by Kai Nui

Good! ..............

The whole problem with the lights-were-not-on is that at some speed the lights become irrelevent. As anybody who has operated a motor boat at night with background lights on shore knows, it gets confusing real fast. It doesn't take much speed before it's just plain luck that you don't hit something, lit or unlight. At 40 to 50 mph, there is a real question whether running lights would have made any difference at all.

In fact, this case may well ultimately show that the running lights were on and didn't make a bit of difference.

I personally have run a motor boat at about 20 knots at night with background lights and couldn't see a thing. I had to slow down to barely planning speed. It was too confusing. That's why this case upsets me so much. I can't imagine any decent human being going 40+ mph on a lake knowing that other people were on the lake. That's criminal.

If you are in a rural area with no background lights, then yes the running lights stick out like a neon sign. But as soon as you add background lights on shore, it's a completely different ball game. Mass confusion. You just can't tell if you are looking at running lights, or shore lights. It's all a jumble, even at 10 knots.

[Kai Nui]

Tao, I read it, and, in my mind, a good prosecuter would present exactly the question I posed, could the white light you observed have been something other than a stern light? And, did you see the the red and green nav lights? Any doubt to either of these answers throws the credibility of the statement out the window.
Also keep in mind my perspective on this. Based on the information I have seen, I have already formed an opinion. That opinion is strong enough that only an earth shaking revalation would change it at this point, but, I also would look at each piece of evidence under the microscope, and determine if it is filler, or would truly effect the outcome.
As for the lights, I still think it might be worth looking.

[Kai Nui]

John, point well taken, but it only helps the sail boat case. If it is determined that the lights were on, then it goes back to the power boat operating too fast for conditions, and eliminates part of the case of negligent operation charged to the sail boat.

[TaoJones]

Originally Posted by slomotion

It wouldn’t surprise me to learn that under notoriously goofy California law, this is somehow by itself sufficient to support a manslaughter/vehicular homicide charge regardless of the proximate cause of the accident.

California (well, people in California) may be both goofy and notorious, slomo, but I doubt you can find much daylight between any one state's legal definition of felony vehicular manslaughter, and any other state's. What is outrageous in this case is the odious application of that law to protect a favored friend by railroading an innocent man.

TaoJones

[Hiracer]

Originally Posted by Kai Nui

John, point well taken, but it only helps the sail boat case. If it is determined that the lights were on, then it goes back to the power boat operating too fast for conditions, and eliminates part of the case of negligent operation charged to the sail boat.

The negligence of another party is relevent in a civil liability case, but is no defense in a manslaughter criminal case. That the sailboat people may have been criminally negligent is no defense to the charge that the deputy was criminally reckless.

In the criminal court, it's entirely possible that both parties committed crimes. It's not an either-or proposition.

That's part of what's wrong with this whole case. The fact that the sailboaters may have committed a crime doesn't mean that the deputy didn't. The deputy's actions were criminally reckless, regardless of the actions of the sailboaters.

If I'm driving at night with snow and ice on the road at speeds where I have no hope of stopping within my line of sight, and I hit and kill a jay walker, I am not innocent of criminal recklessness just because the pedestrian strayed outside the crosswalk. I have committed a crime, regardless.

[Hiracer]

In fact, to emphasize my point, let me state that in my car driving example above even if I don't hit anybody I have still committed a crime, the crime of recklessness. You don't need an accident for reckless driving to be a crime.

Arguably the deputy should have been prosecuted even if he never hit anybody, IMO. He was acting with criminal recklessness. He was reckless with the safety of others on the lake and reckless with the safety of his own passsengers.

One of the primary purposes of the criminal code is to convict people BEFORE they injure others.

That's why you can get a speeding ticket on the roads, including to-fast-for-conditions, without there being an accident.