KJZZ

The role of Maricopa County Sheriff Joe Arpaio’s pink underwear policy could be back in court soon as part of a wrongful death case. The U.S. Supreme Court decided today not to hear an appeal by Arpaio, making a re-trial more likely.

Maricopa County Sheriff Joe Arpaio. (Photo by Al Macias - KJZZ)

The development comes after a convoluted legal battle that has stretched over the last few years, stemming from a lawsuit filed by the estate of Eric Vogel.

In 2001, Vogel, who had a history of mental illness, was charged with burglary and forced to wear pink underwear while in jail – a mandatory part of the uniform at the county jail. Vogel erroneously thought he was being raped, his family argued.

That’s why, while on parole, Vogel ran some five miles from the scene of a car accident where officers told him he might go back to jail for assaulting an officer while being forced into the prison uniform, the estate’s lawyers argued.

The arguments didn’t convince a jury in 2010, which ruled in favor of Arpaio.

But last year, the Ninth Circuit Court of Appeals ruled differently. The three-judge panel ruled that forcing Eric Vogel to wear pink underwear while in jail was a “form of punishment without legal justification.” The ruling also stated that it was reasonable to infer that the color pink was used to emasculate prisoners, and ordered a re-trial, essentially throwing out the jury’s verdict.

Arpaio’s lawyers asked the U.S. Supreme Court to block the re-trial, but the high court declined. Now, the sheriff’s office is asking a larger body of Ninth Circuit judges to reinstate the original jury verdict in Arpaio’s favor on the grounds that the three-judge panel’s arguments were unsound.

Deputy Chief Jack MacIntyre says he thinks the sheriff’s office has a good chance of seeing the verdict reinstated. But if the case does get tried again, he feels good about the prospects.

“Where we’re sitting now is that we’ll have a new trial and a new jury will find the same way, I believe, as the first did,” MacIntyre said.

It is up to the Ninth Circuit now to decide whether a re-trial will go forward.

EDITOR'S NOTE (3/6/13): This story has been modified to reflect is was not the Maricopa County Sheriff's Office deputies that addressed Vogel at the scene of a car accident. Also, the MCSO pink underwear policy is not directly on trial. The role of pink underwear, as part of the required jail uniform, is one issue in a wrongful death lawsuit.