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New trial ordered in death of inmate forced to wear pink underwear

By Carol J. Williams, Los Angeles Times –

LOS ANGELES — “America’s toughest sheriff” is facing a new threat of punishment in the death of a mentally ill jail inmate forced to don pink underwear.

The jail dress code imposed by Sheriff Joe Arpaio of Maricopa County, Ariz., so traumatized schizophrenic detainee Eric Vogel that it may have caused his death from heart failure, two coroner’s officials concluded, and their testimony should have been presented to a jury that rejected a wrongful death claim in 2010, a divided panel of the 9th U.S. Circuit Court of Appeals ruled Wednesday.

Vogel, a 36-year-old recluse who lived with his mother, was arrested by deputies on suspicion of burglary after he wandered out of his North Phoenix home in November 2001. After mental health screeners at the jail deemed him in need of psychiatric care, Vogel became hysterical when ordered to “dress out” and had to be held down and stripped naked by four deputies to force him into the pink garments. He was released a couple of days later.

Less than a month after his release, Vogel was riding in his mother’s car when she had a minor accident, and a sheriff’s deputy told him there was an outstanding warrant for his arrest. Vogel fled the scene, running four or five miles before dropping dead of a heart attack, according to court records.

His sister, Yvon Wagner, filed a lawsuit alleging constitutional violations in her brother’s death. When the case went to court, the judge refused to allow her to testify at trial about Vogel’s delusional belief that he had been raped during the dressing struggle. The court also refused to allow two medical examiners to offer their opinions that the humiliating pink underwear was “likely” a factor in the man’s fatal attack of arrhythmia.

“Pink underwear sounds funny until you have a paranoid schizophrenic who thinks he’s being prepared to be raped,” said Joel Robbins, the Phoenix attorney representing Wagner in her quest to punish Arpaio, who has been dubbed by the media — and himself — as the toughest lawman in the country.

The 9th Circuit sent Wagner’s case back for a new trial, but Robbins said he expected Arpaio and county authorities to petition for reconsideration by a larger panel of 9th Circuit judges.

“My experience with Maricopa is they squirm until they have to pay,” Robbins said of Wagner’s claim for unspecified damages.

The attorney for Arpaio, Eileen D. Gilbride, did not return phone calls.

The 9th Circuit opinion, written by Judge John T. Noonan, an appointee of President Ronald Reagan, said Arpaio’s choice of pink for male inmates’ undergarments “appears to be punishment without legal justification.”

“Given the cultural context, it is a fair inference that the color is chosen to symbolize a loss of masculine identity and power, to stigmatize the male prisoners as feminine,” wrote Noonan, who was joined by a visiting judge appointed by President Bill Clinton.

Judge N. Randy Smith, named to the court by President George W. Bush, dissented, saying that Wagner’s account of her brother’s mental state was inadmissible hearsay.

Arpaio has been sued repeatedly over his treatment of jail inmates. He has reduced jail meals to two daily, served surplus food, reinstated chain gangs — including for women and juveniles — and relegated some detainees to a tent city where summer temperatures often exceed 120 degrees.

The Justice Department last year revoked the sheriff’s authority to identify and detain illegal immigrants after finding that Maricopa County deputies were engaged in racial profiling.

A week ago, Arpaio announced at a Phoenix news conference that preliminary results of an investigation he ordered on the authenticity of President Barack Obama’s birth certificate had yielded “probable cause to believe forgery and fraud occurred.” Obama released the Hawaiian document to the public last year after “birthers” stirred up a national frenzy with claims that he was born in Africa and therefore ineligible to be president.

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