A Strange Case of JusticeBy Bob Adriance
Published: October 2008
Updated: July 2009
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.
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 powerboat?
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 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."
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.