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New trial ordered over Arpaio’s pink-underwear policy for inmates

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Wednesday, March 7, 2012
By Dustin Volz
Cronkite News

WASHINGTON – A federal court has reinstated a lawsuit against Maricopa County and Sheriff Joe Arpaio by a woman who said her brother’s death stemmed from a traumatic jail “dress out” – when he was held down, stripped and forced into the pink underwear of county inmates.

A divided panel of the 9th U.S. Circuit Court of Appeals also said a lower court could consider whether Arpaio’s pink-underwear policy for inmates amounts to “punishment without legal justification.”

“We all view it as a kind of joke, big tough guys wearing pink underwear,” said Joel Robbins, an attorney representing the woman.

“But at the end of the day if a guy goes in there and thinks he’s going to be raped . . .  putting him in pink underwear, it’s a different subject. It’s not so funny,” he said.

The experience so traumatized Eric Vogel that he ran “four or five miles” from a police officer who told him in 2001 that he might go back to jail, according to court documents. Vogel died the next day of cardiac arrhythmia.

Vogel was described in court documents as having lived a “remarkably restricted life,” a homebody who only left his parents’ Phoenix home twice after dropping out of college.

When he ventured outside the home “for no apparent reason” in 2001, Vogel was arrested on a report of a possible burglar in the neighborhood. After a struggle, he was taken to the Phoenix jail where Vogel – later described as “floridly psychotic” – was quickly determined to be in need of psychiatric placement.

When officers came to get him the next day, he was told he must “dress out” of his civilian clothes and change into prison garb, including the pink underwear that Arpaio has made standard for Maricopa County inmates.

Vogel refused and was stripped of his clothes by five officers and forced into the prison attire, during which he shouted that he was being raped.

He made bail and was riding with his mother a few weeks later when she was involved in a minor car accident. When a police officer at the scene told Vogel that a warrant was out for his arrest for spitting on an officer during the dress-out, he “ran four of five miles from the car.” He died the next day of a heart attack, according to the Maricopa County Medical Examiner.

Vogel’s family sued over the death, but a federal district court jury ruled against them after the judge barred most of his sister’s testimony about her conversations with him. The court also disallowed testimony from a medical expert who linked the death to the dress-out trauma.

But the appeals court said the lower court was wrong to bar testimony of the sister, Yvon Wagner, as hearsay. The appellate judges said Wagner was not trying to prove that her brother was in danger of being raped in jail, as he thought, but to establish his state of mind.

“(Wagner’s) testimony was admissible not to prove ‘the fact remembered or believed’ but the ‘mental feeling’ of Vogel,” the majority wrote.

The district court had also said the pink underwear could not be referenced unless Wagner could demonstrate “credible evidence” that Vogel was aware of the underwear’s color. The appeals court rejected that decision, too.

“His mind was focused on the implications of being dressed in pink,” the court wrote. “But what was essential to the plaintiff’s case was Wagner’s testimony that the shock and humiliation of the ‘dress-out’ in pink was preying on his mind.”

The sheriff’s office Wednesday called the appeals court ruling “clearly erroneous” because Vogel described his experience to Wagner at least one week after it occurred, meaning it qualifies as hearsay – a point the one dissenting judge also made.

“The hearsay rule is there for a real good reason,” said Jack MacIntyre, deputy chief of the sheriff’s office.

“You want to make the statements as reliable as possible. Every tick of the clock makes it less and less reliable,” he said.

MacIntyre said the sheriff’s office would likely request a review by the full appeals court.

But Robbins said all the appellate panel did was afford his client a fair trial.

He added that Arpaio’s pink-underwear policy violates due process because it’s a penalty imposed before inmates are convicted of a crime.

“It’s a rule that needs exceptions if you’re going to do it,” Robbins said. “But to impose pink underwear to embarrass people, that’s not allowed under our Constitution.”