At 1:30 p.m., shortly before the jury was called back to the courtroom in the trial of 41-year-old Carmichael resident Bismarck Dinius, Judge J. Michael Bryne heard Brady and Pitchess motions made by Dinius' attorney, Victor Haltom.
Haltom is seeking access to the personnel files of sheriff's Capt. Russell Perdock, who was scheduled to testify on Thursday. However, District Attorney Jon Hopkins rested his case and didn't call Perdock, as Lake County News has reported.
Perdock's powerboat hit the Beats Workin' II, owned by Willows resident Mark Weber, just after 9 p.m. April 29, 2006. Weber's girlfriend, Lynn Thornton, was mortally injured and died three days later.
Dinius was at the tiller of the sailboat, and is facing a charge of boating under the influence causing great bodily injury because the prosecution alleges his blood alcohol level was 0.12 and the sailboat was under way without navigation lights. The prosecution contends that those factors led to the crash and to Thornton's injury and death.
Haltom's motion, filed Thursday, explained that during an “in camera” discussion – an on-the-record discussion held in the judge's chambers – which was held after the prosecution rested, Hopkins disclosed to Haltom and Byrne that he was told by the Lake County Sheriff's Office “that information reflecting adversely on Russell Perdock's general credibility may be in existence in Mr. Perdock's personnel files.”
Hopkins, who didn't say when he received the information, is reported to have stated that he believed the information could only be obtained by a Pitchess motion, which is a particular motion used expressly for seeking peace officers' personnel records. The documents also quoted Hopkins as suggesting there was a sufficient case to review the personnel documents in chambers.
Byrne noted during the 15-minute hearing Friday that Perdock wanted to be represented at the hearing and opposed the motion. Perdock's attorney, Alison Berry Wilkinson of San Rafael, communicated to the court that she was not available Friday and was estimated to be unable to come to court until Aug. 17.
Motions offer information about internal affairs investigation
Wilkinson did reply to the motion with a declaration of opposition, filed Friday.
She stated that, on or around June 16, Perdock went on approved leave status after visiting a medical professional “who indicated that he had a medical condition that required an absence from employment for 45 days.”
After Perdock went on leave Sheriff Rod Mitchell notified him that “he was the subject of an internal affairs investigation concerning allegations of misconduct,” Wilkinson stated.
Wilkinson said the investigation is still under way, and Perdock has not been provided a copy of it, nor has he been advised of any final findings.
She said she spoke with Mitchell on Wednesday, who said he had notified Hopkins of the investigation and that the report hadn't been concluded. Mitchell reportedly stated that “it would take many days, if not weeks” for the investigator to complete the report.
The Sonoma County Sheriff's Office is handling the investigation as “a matter of courtesy.” Wilkinson's motion said she believed the disclosure “was to reveal that the report and any materials related to the investigation are not in the care, custody and control of the Lake County Sheriff's Department.”
Wilkinson said Hopkins – and no one else – notified her of the pending motion, as well as the court granting Haltom's request for an order shortening time in order not to impact the trial's progress. Because she was leaving for a trip and is a solo practitioner, she said she wasn't able to arrange for another attorney to appear on Perdock's behalf.
In her points and authorities, Wilkinson explains that Perdock's records are statutorily exempt from disclosure. “Mr. Perdock is simply a witness in connection with the events involved in this proceeding, as the events occurred while he was off-duty, and he was not and did not act in any law enforcement capacity.”
Because the internal affairs investigation won't become a part of Perdock's personnel file until after he has the opportunity to respond to it, it can't be released, Wilkinson argued. She also maintained that Haltom hasn't justified the scope of his request for all of the records.
“In law enforcement, mere allegations of misconduct – even if ultimately proven unfounded – can wreak irreparable havoc upon a peace officer's reputation,” Wilkinson wrote, arguing that the motion shouldn't be heard on shortened time and that Perdock should be present.
Hearing planned to address motions
During the hearing Friday, Hopkins said he didn't have any comment on the proceedings.
Deputy County Counsel Ryan Lambert, representing the Lake County Sheriff's Office, said the agency opposed the motion on a number of grounds, among them, that the information isn't relevant to the case. Lambert said the Pitchess motion is insufficient to justify the documents' release.
Byrne, who read a part of Wilkinson's opposition, said, “I am reluctant to proceed without hearing from her and hearing her position on the items and what is discoverable.” He said Perdock retains a due process right.
“She raises a lot of points in her papers that it's not discoverable,” said Byrne.
He noted that the court had more information on the subject that it did the previous day.
Haltom suggested Wilkinson could appear by phone, but Byrne suggested it would be better to wait for her to appear in person. “There's something about the advocacy of being present.”
Perdock's right to privacy, Haltom argued, took a back seat to Dinius' right to a fair trial.
Haltom said the fact that the Sonoma County Sheriff's Office has been conducting an investigation “should have been disclosed to me a long time ago.”
Byrne said Dinius' right to a fair trial is balanced against the officer's right to privacy.
The information may not be discoverable due to the investigation's status, Byrne said.
He also pointed out that, in this case, “Mr. Perdock is a witness in the case and not an arresting officer,” with the latter being the traditional area of the Pitchess motion.
If they end up putting Perdock on the stand next week, Byrne suggested Haltom could have the right to recall Perdock and cross-examine him on any discoverable material.
“If he's here Tuesday, that's my major concern,” said Haltom.
Haltom said he can't tell if the investigation concerns conduct or matters relating to the Dinius case. If it's in regard to the latter, it changes the relevance and discoverability “dramatically,” he said.
He said a lot of what he'll do relating to the motions depends on Perdock taking the stand, and whether or not he takes the Fifth Amendment. Haltom said later that, if that happens, a separate hearing would be needed.
Byrne said he would give Wilkinson the courtesy of time but seek to have a hearing on the motion at 1:30 p.m. Tuesday.
The judge said he doubted if Perdock's testimony would be completed by Tuesday afternoon.
However, he added, “It's a surprising trial.”
E-mail Elizabeth Larson at
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