Metropolitan News-Enterprise


Wednesday, October 10, 2001


Page 3


Ninth Circuit Judges Appear to Back Rights Verdict Favoring Ventura Deputies


By a MetNews Staff Writer


A federal district court judgment in favor of five Ventura County sheriff’s deputies, absolved of excessive force charges by a jury two years ago, appeared likely to survive appeal based on questions during oral argument yesterday.

Senior Judge Melvin Brunetti and Judges Pamela Ann Rymer and Kim McLane Wardlaw made little effort to hide their skepticism at plaintiffs’ attorney Richard Hamlish’s claim that asserted errors on the part of Senior U.S. District Judge Mariana Pfaelzer affected the outcome of the trial.

Hamlish represents James and Ann Dowey. Their son, California State University-Northridge student Nicholas Dowey, died from extensive head injuries following a 1997 party in the western Ventura County community of Meiners Oaks.

The Doweys do not dispute that someone hit their son over the head with a baseball bat before deputies arrived. But they contended that deputies hit a disoriented Dowey with a flashlight and contributed to his death by not obtaining medical care quickly enough.

The 21-year-old Dowey was taken to a hospital, where he died the next day.

According to news accounts of the trial, witnesses testified they saw deputies wrestling with Dowey before putting him in a headlock, trying to douse him with pepper spray and hitting him as many as three times with the flashlight. The deputies claimed that Dowey was combative and may have been hit with a one-ounce pepper spray can, but never with a flashlight.

Hamlish argued yesterday that Pfaelzer committed more than a dozen errors, the cumulative effect of which was to cost the Doweys a verdict.

But he focused on four contentions—that an African American juror was improperly excused, that a previously undisclosed witness was allowed to testify, that defense attorneys improperly vouched for the credibility of deputies who testified, and that evidence that one of the deputies was fired for lying about what occurred when he confronted Dowey should have been admitted.

None of those arguments seemed to carry much weight with the panel.

Rymer quickly discounted the claim that a juror was excused for racial reasons. “The record shows there was no Batson error,” she flatly declared, while Wardlaw pointed out that there was no evidence in the record regarding the racial composition of the jury.

Nor could the judges apparently fathom how the plaintiffs were prejudiced by the late introduction into the case of an asserted eyewitness.

The witness testified in a closed courtroom, and the transcript remains under seal. The appellate briefs are sealed as well, but there was no objection yesterday to holding arguments in open court.

News accounts, citing documents filed in the trial court, said the secret witness saw the beating. The witness, who came forward 20 months after the attack, asked to remain anonymous, fearing retribution from those involved in the beating.

Hamlish didn’t dispute Rymer’s assertion that “the nature of the testimony could not have been a surprise.” But he claimed that “the aura in the courtroom was that this was such an important witness.”

Defense attorney Jeffrey Held of Oxnard had an easier time with the panel.

Held said the alleged Batson error wasn’t prejudicial, and that there was no requirement that the district judge have made detailed findings on the issue of bias. Hamlish, he said, could have attempted to establish a record of bias in jury selection, but didn’t.

With regard to the anonymous witness, Held said Hamlish didn’t object at trial.

Held also disputed the “voucher” claim, saying there was no wrongdoing in arguing that the deputies were good people who had conducted themselves in an exemplary fashion.

And he defended Pfaelzer’s ruling that the subsequent firing of Deputy Sheriff Donald Rodarte was inadmissible, likening it to evidence of “subsequent remedial repair” in product liability cases.


Copyright 2001, Metropolitan News Company