sheriff joe and the state of arizona want to keep medical reports about a jail death secret in this lawsuit suing about the death of inmate Charles Agster Original Article Report on '01 jail death focus of court battle Jon Kamman The Arizona Republic Aug. 15, 2005 12:00 AM Maricopa County is asking the U.S. Supreme Court to allow it to withhold a medical report from the parents of a mentally retarded drug user who died after being restrained as he was being booked into jail. Four years after the death of Charles Agster III, and three years after his parents filed a lawsuit, the case has yet to go to trial. The county argues that all reports and evidence that are public records, including a videotape of the encounter, have been provided to the plaintiffs, but a follow-up "peer review" by medical personnel on whether the incident was handled properly should be kept confidential. In their lawsuit, parents Carol Ann and Charles Agster Jr. accuse jail and health care officials of falsely claiming that they summoned paramedics three minutes after their struggling son, buckled into a restraint chair, stopped breathing. Paramedics' records show that 11 minutes passed, according to the lawsuit, filed by Phoenix attorney Michael Manning. Agster, 33, who lived with his parents in Scottsdale, had the mental capacity of a 12-year-old and was a user of alcohol and drugs, according to records. He had been arrested for trespassing as he exhibited bizarre behavior at a convenience store. At issue in the appeal is whether the public's need to know what happened in the jail outweighs the need for medical personnel to be able to give private, candid opinions about what went right or wrong in handling an emergency. Most states, including Arizona, exempt medical peer reviews from disclosure, reasoning that health care personnel won't be frank if they know their reports could be used against the people and institutions they're evaluating. But federal law has no such exemption, the District Court in Phoenix ruled. A three-judge panel of the 9th U.S. Circuit Court of Appeals agreed in April, noting that it was at the county's request that the lawsuit was moved from state to federal court. In a petition filed July 28 for Supreme Court review, Phoenix attorney Michael Wolver argued on behalf of the county and its Correctional Health Service that courts had been inconsistent on the issue and the high court should sort it out. The petition said the "overwhelming public interest" in confidentiality was recognized by a federal court 35 years ago. The appellate court judges said that while they could in effect make law by declaring the peer report confidential as a matter of common law, a prisoner's death makes it "peculiarly important that the public have access to the assessment by peers of the care provided." Maricopa County Sheriff Joe Arpaio has said from the beginning that his personnel did nothing wrong. He, his office and other individuals who dealt with Agster are not parties to the appeal but remain subject to the underlying litigation over the death. Manning said he expects a trial date to be set, regardless of the request for Supreme Court review. The case has been complicated by a revision of the official cause of death nearly two years after it was attributed to positional asphyxiation and drugs. After reviewing reports and watching the jail videotape, Dr. Philip Keen, the county's chief medical examiner, said Agster's methamphetamine level was enough to have caused heart failure. He ruled the death accidental. Paramedics restored Agster's breathing on the way to a hospital, but he was taken off life support three days later. Doctors said tests found methamphetamine, cocaine, barbiturates and PCP in his blood. Police reported that Agster had to be restrained when they arrested him around midnight on Aug. 6, 2001, at a convenience store where he had persuaded his parents to stop as they were taking him to a hospital for treatment of substance abuse. He was crouching by a store cabinet and "appearing terrified" when police arrested him, and was combative all the way to jail, police said.