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By PORAC | June 1, 2000 | Posted in PORAC LDF News

Ventura County Deputy Exonerated

It was the night of September 18, 1997. A wild party in the city of Ojai became completely out of control as violence erupted. One of the party-goers, Nicholas Dowey, suffered blows to his head from what witnesses described as a baseball bat and an auto anti-theft device. Bleeding and disoriented, Dowey staggered outside the home where the party was held. Deputies Don Rodarte and Darren Yanover were the first of many Ventura County Sheriff’s Deputies to respond.

In a situation later described by many deputies as the scariest that they had ever witnessed in their law enforcement careers, Rodarte and Yanover sought to control the flailing and non-responsive Dowey while surrounded and taunted by what was estimated to be 200-to-300 party-goers. After an extensive struggle, Rodarte removed his OC can from his belt and attempted to spray Dowey. However, he missed his intended target, and his partner, Yanover, became immediately incapacitated.

Other deputies ultimately assisted Rodarte in getting Dowey under control so aid could be administered to him, while an angry crowd of the types not typically supportive of law enforcement berated the deputies.

Rodarte suffered an ankle injury later that evening and went to the Ojai Medical Center Emergency Room for treatment. Other deputies also arrived there, as did a sheriff’s services technician named Dale Stone. Dowey was examined at Ojai and then transported to the Ventura County Medical Center.

At the latter facility, hours after the initial contact by the deputies with Dowey, allegations were made by party-goers that deputies had slugged Dowey with flashlights. Dowey died from his injuries shortly thereafter, and no suspects have yet been arrested for his murder.

The involved deputies were asked to write reports regarding the incident, and Rodarte submitted his report to his sergeant. Rodarte was asked by his sergeant if he had struck Dowey with an OC can. Rodarte insisted that he had not, at which time the sergeant told him that Stone (the services technician) maintained that Rodarte told Stone at the Ojai Medical Center that he had in fact done so.

Rodarte did not even recall having any conversation with Stone. Rodarte stated that if he had struck Dowey, he would have put it in his report. Stone, however, claimed to have made verbatim notes of the conversation in which Stone insisted that Rodarte acknowledged striking Dowey in the head with an OC can while demonstrating his physical actions in doing so.

The media accounts of the incident trumpeted the wild accusations of some of the party-goers, many of whom were inebriated and/or members of biker gangs. While the coroner found that nothing that the deputies did contribute to Dowey’s death, the department became concerned as to whether Dowey had been struck in the head with an OC can, in light of Stone’s assertion that he had made verbatim notes of a purported conversation with Rodarte, and Rodarte’s failure to recall any conversation with Stone.

The Dowey family sued the county for the alleged misconduct of sheriff’s deputies that they claimed contributed to Dowey’s death. In its own investigation, the department found that none of the deputies, including Rodarte, had used excessive force. The department concluded that even if Rodarte had struck Dowey in the head with the OC can, that action would have been within department policy in the context of the struggle.

Citing a small mark that was found near the base of Dowey’s skull as possible evidence that Rodarte struck him with an OC can, and in heavy reliance on the accuracy of Stone’s notes, the sheriff’s department fired Rodarte on September 20, 1998, alleging that he had struck Dowey with the OC can and failed to include it in his report, lied about it to his supervisor, and lied about it to internal affairs investigators.

Rodarte, represented throughout by Bill Hadden, of Silver, Hadden & Silver, appealed his termination to the Civil Service Commission. The commission hearing was delayed pending the outcome of the civil trial, in which all of the allegations of the Dowey family against the county and the sheriff’s deputies were rejected by the jury.

The administrative appeal was finally heard over 10 hearing dates between September and November 1999. The case hinged upon three critical factors: (1) eye witness testimony, (2) physical evidence; and (3) the assertions of Dale Stone.

Even the sheriff’s internal affairs investigators readily acknowledged that of the scores of witnesses interviewed in both the criminal and administrative investigations, not one person claimed to have seen Rodarte strike Dowey with an OC can. The witnesses produced by the county at the hearing claimed to have seen Rodarte strike Dowey with a foot-long object, but their statements were inconsistent with the physical evidence found by the county coroner.

Significantly, each of the witnesses described the physical motion of Rodarte as proceeding on an arc from north to south. Conversely, the coroner testified that the mark relied upon by the sheriff’s department could only have been made by a head blow struck from south to north. However, there was no underlying tissue damage beneath the surface of the wound, which, according to the pathologists who testified at the hearing, demonstrated that no heavy blow was struck.

Furthermore, the circumstances of the struggle as described by witnesses did not allow for a conclusion that any blow could have been struck by Rodarte in a south to north direction in a manner consistent with the wound. Dr. Marvin Pietruska, an expert pathologist called by the defense, testified without contradiction that the shape and texture of the mark that the sheriff’s department claimed could have been caused by impact with an OC can be instead more likely caused by superficial contact with a fingernail, or by a laceration from an object much larger in circumference than an OC can.

Thus, neither the testimony of eyewitnesses nor the testimony regarding physical evidence supported the county’s allegations against Rodarte.

Nonetheless, a critical issue remained in dealing with the contentions of Stone that Rodarte supposedly had acknowledged striking Dowey in the head with an OC can in words quoted “verbatim” by Stone. In his cross-examination of Stone, Hadden methodically showed that Stone’s notes were riddled with factual inaccuracies, were not made in chronological order as he alleged, and at best were recorded several hours after the alleged conversation, and not immediately thereafter, as Stone testified.

A deputy in the immediate vicinity of Stone and Rodarte at the hospital testified that he never heard Rodarte utter the comments attributed to him by Stone, and testified that he definitely would have recalled those comments if they had in fact been made.

On March 6, 2000, the Civil Service Commission rendered a decision that emphatically rejected all the allegations against Rodarte and restored his good reputation. The commission found no physical evidence to support the county’s charges, and specifically found that Stone was “not credible.” Conversely, the commission described Rodarte’s demeanor and testimony as both “credible and reasonable.”

The commission found that witnesses perceiving a north to south “striking motion” likely saw Rodarte shaking his OC can prior to its use, a practice shown at the hearing to be common among deputies. The commission concluded that Rodarte did not strike Dowey with an OC can or any other object, that Rodarte did not file a misleading report or fail to give truthful answers to his sergeant or the internal affairs investigators, and ordered that he be reinstated with back pay and benefits.

Upon receipt of the decision of the commission, Sheriff Bob Brooks, to his credit, acknowledged that certain factual premises previously relied upon by the county had been shown to be faulty and that the sheriff’s department would appropriately accept the decision of the commission without appeal. Needless to say, Rodarte was ecstatic that his 2 ½ year nightmare had come to an end with the complete vindication of his integrity.

“I’ve always told my three children to be honest, and the toughest thing that I’ve ever done in my life is to tell them that I had lost my job because some people didn’t believe that I was telling the truth,” he said. “It was a long ordeal, but the system worked, and I’m looking forward to resuming my duties as soon as possible. I am especially grateful to the Legal Defense Fund for its relentless support of my case.

You never think you’re going to be in this situation, and it sure is comforting knowing that LDF will be there when you need it.”