By Nan L. Haynes
Bernie Tolbert, a candidate for Erie County sheriff, noted that at the Sheriff’s Office, “There’s a story every day about something that’s gone wrong.” He is too kind to Sheriff Timothy B. Howard. Thanks to Matt Spina’s reporting, we know that among things that are “going wrong” is that the sheriff and his staff offer “alternative facts” to avoid complying with simple rules the sheriff is bound by law to follow.
As custodian of Erie County’s jails and its prisoners, the sheriff is required by state law to report all attempted suicides to the Commission of Correction, the agency that regulates local jails. The commission considers it an attempted suicide whenever prisoners put themselves in a “life-threatening situation.”
It’s not up to the sheriff to ascertain whether the prisoner truly wanted to die. So the rule is simple and requires no judgment. For example, if a deputy finds a prisoner with fabric knotted tightly around her neck, that prisoner attempted suicide, and the sheriff must report it to the commission.
Nevertheless, Tom Diina, the jails’ superintendent appointed by Howard, did not report at least five attempted suicides between April 2013 and September 2015. Instead he deemed them “inmate disturbances,” which the sheriff is not required to report. Diina admitted that reporting the actions as attempted suicides in compliance with state law would not have inconvenienced the jail. But the commission uses accurate reporting to identify trends or problems it needs to address to keep our jails as safe as possible.
State law also requires that the sheriff report to the commission all prisoner-on-prisoner assaults. Yet in 2016, jail administrators who work for the sheriff covered up the truth about the severe beating of a county prisoner. Rather than report the beating, they reported he was injured in an accident.
And state law requires that the sheriff report all prisoner deaths to the commission. As required in 2012, jail administrators reported that prisoner Richard Metcalf had died. When the commission asked administrators about the circumstances of Metcalf’s death, jail administrators reported that he died as a result of a heart attack.
The commission later determined that Metcalf had died of asphyxia after sheriff’s deputies knotted a spit mask around his neck, pulled a pillow case over his head and placed him face down on a gurney. They then prevented ambulance medics from assessing him for several crucial minutes.
Either the sheriff did not know that his subordinates routinely circumvent the law with “alternative facts,” which is evidence of his incompetence. Or he knew but didn’t care, which is evidence of his complicity. Either way, it’s astounding the sheriff thinks he deserves re-election.
Nan L. Haynes is a member of the skills faculty of the University at Buffalo Law School.