Metropolitan News-Enterprise


Thursday, March 8, 2012


Page 1


Panel Orders New Trial in ‘Pink Underwear’ Wrongful Death Case


By a MetNews Staff Writer


A lawsuit against the sheriff of Arizona’s largest county, alleging that a mentally ill detainee died as a result of mistreatment in his jail, including being forced to wear pink underwear, has been reinstated by the Ninth U.S. Circuit Court of Appeals.

Senior Judge John T. Noonan Jr., writing for a divided panel, said District Judge Earl Carroll abused his discretion in excluding, on hearsay grounds, relevant testimony about Eric Vogel’s state of mind.

Vogel’s sister, Yvon Wagner, charges that his 2001 death of acute cardiac arrhythmia, at the age of 36, was brought on by his treatment in the Maricopa County Jail, under the supervision of longtime Sheriff Joe Arpaio.

Vogel, who lived with his mother and rarely left home, according to testimony, wandered away in November 2001 and became involved in an altercation. He was put under arrest for assaulting a police officer.

Counselors at the jail determined he was disoriented, paranoid, and psychotic, and in need of psychiatric care. Before being transferred to a psychiatric unit, he was told that he had to “dress-out.”

Noonan explained:

“In the argot of the jail, ‘to dress-out’ was to change from one’s civilian clothes to prison garb approved by Sheriff Arpaio. The prison outfit included pink underwear. Vogel declined to change.”

What ensued, Noonan said, was a struggle with officers, in which Vogel shouted that he was being raped. He was treated for a week and then bailed out by his mother.

A short time later, he was in his mother’s car when she had a minor traffic accident. According to the complaint, he was told that there was a warrant for his arrest for spitting on an officer during the dress-out, and ran four or five miles from the car rather than risk being returned to jail.

He was found dead the next day.

At trial, Carroll ruled that all references to “pink underwear” were excludable in the absence of evidence that Vogel knew that the underwear was pink. His sister, the judge said, could not testify as to her brother’s state of mind with regard to how he was told to dress.

That was error, Noonan said:

“Wagner proposed to testify about how extremely delusional Vogel was following the incident, and more importantly, the emotional impact the incident had on him, including how humiliated he now felt by the pink underwear. She was not asserting the truth of anything that Vogel said had happened to him in jail.”

The judge further wrote:

“That Vogel was delusional does not mean that he was incapable of seeing. If you pricked him, he bled. Just as his eyes saw the pink, so his mind made the association of the color. So at least a jury could infer from the impact of the dress-out on Vogel apparent from his conversation with his sister.”

Judge Norman Randy Smith dissented, arguing that Wagner’s proposed testimony was hearsay and the majority was being inadequately deferential to the trial judge.

The case is Wagner v. County of Maricopa, 10-15501.           


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