A judge recently sealed Sheriff Timothy B. Howard's deposition in the case of an inmate who died at the hands of his jail deputies. But his deputies' testimony about the death of Richard A. Metcalf Jr. remains in the public record.
They say they knew little about how to apply the device that strangled Metcalf – a "spit mask."
Yet they put one on him anyway.
Sgt. Matthew Cross placed the mask on Metcalf as others held the inmate prone on an examining table, to prevent him from spitting blood around the Erie County Holding Center infirmary.
"You had never used a spit guard, is that correct?" a lawyer asked Cross.
"... And you had never placed a spit guard on anyone, either in practice, training, or in the course of fulfilling your duties as a sheriff. Am I correct?"
"I don't recall having any dealings with the spit guard, no," Cross answered.
“... Did you ever tell anybody, ‘Jeez, I never used a spit guard before. I’ve never been trained. I really don’t know how to use it. Can anybody give me any advice for how to use it?’ Did you have any conversation like that?”
“No, sir,” Cross answered.
Deputy Scott Emerling was among the deputies holding Metcalf down.
"Do you ever remember seeing one being placed on an individual as an example, as a demonstration?" a lawyer asked him.
"No," Emerling said.
"Did you ever hold one prior to Nov. 28th, 2012?"
"Not that I recall."
Deputy Robert States held Metcalf's right arm.
"Have you ever seen one used?" he was asked during a deposition.
"Have you ever heard of one being used?"
Metcalf, a 35-year-old store clerk who for days had appeared deranged, reckless and confused, died of asphyxia because the strings of the spit mask were bound tightly around his neck, according to the agency that investigates deaths in New York's jails and prisons.
The State Commission of Correction went on to say that Howard's jail deputies then made it even tougher for Metcalf to breathe by pulling a pillow case over his head, an act prohibited by the jail's own rules.
Finally, the deputies blocked ambulance medics – who could not see the mask – from assessing the shrouded patient for several minutes as his life slipped away, the agency says.
Five years later, no criminal charges have been filed, even though the Commission of Correction last year urged prosecutors to take another look. A lawsuit that Metcalf's father filed against Erie County and nine Holding Center deputies remains the only court proceeding underway to hold people or an institution responsible.
The Commission of Correction told Howard he should discipline Cross for the way Cross applied the mask. In a letter written by the county attorney, Howard told the agency it had no power to make him do so. Besides, County Attorney Michael Siragusa wrote, the sheriff's internal investigation and a State Police inquiry cleared Cross of wrongdoing.
While Howard says Cross did nothing wrong, the Sheriff's Office's years-old written policy on spit masks describes a different way to apply one:
"It should not be tied tightly around the inmate's face or neck," the policy says. "At all times the inmate's ability to see and ability to breathe comfortably must not be obstructed."
The policy stresses that masks are to be used only if inmates are sitting in restraint chairs, not held face down on a stretcher, as was done with Metcalf.
The Sheriff's Office policy dictates that employees at the Holding Center and Correctional Facility in Alden go through annual refresher training on the use of spit masks and other restraints. So why did the jail deputies who handled Metcalf say they knew little about the masks?
The sheriff and his top staff refuse to comment on matters enveloped by pending litigation. But one jail management veteran, who asked to be unidentified because he was not involved in the Metcalf matter, said spit masks come up in the refresher training during a sequence about restraint chairs. The masks were discussed but rarely brought out and displayed, both before and after Metcalf was killed, he said.
The Commission of Correction said not only was Metcalf's spit mask applied fatally, it never should have been used. The manufacturer's instructions say the masks are not to be placed on inmates bleeding from the mouth because the blood can back up into their airway.
The lawyers defending Erie County in the lawsuit long resisted the request to question the sheriff in a formal deposition. The plaintiff's lawyers wanted to ask about the training Howard gives deputies and his general administrative oversight. The county lawyers rebuffed the attempt by saying they had produced plenty of other deputies and employees for interviews.
Just weeks ago, State Supreme Court Justice Mark J. Grisanti ruled that the sheriff could be deposed, but only to gather information needed to counter a county defense strategy. Grisanti then sealed Howard's transcript as well as the transcripts of two top aides, Undersheriff Mark N. Wipperman and Jail Management Superintendent Thomas Diina.
Neither Grisanti nor his clerk will say why the judge sealed the materials. But a lawyer for the county, Jennifer C. Persico of the Lippes Mathias Wexler firm, said Grisanti was following the protocol of sealing civil trial depositions when a criminal investigation is underway.
The plaintiff's lawyers, with the Brown Chiari firm, submitted a written request Thursday to unseal the documents. The lawyers want to refer to the testimony in upcoming court papers. They say there is no criminal justice reason to seal it.
A criminal probe?
The Erie County District Attorney's Office, under Frank A. Sedita III and then Michael J. Flaherty Jr., never placed charges or asked a grand jury to hear the matter. But the Commission of Correction, after concluding last year that Metcalf was strangled and did not die of a heart attack, as a medical examiner determined, urged the District Attorney's Office to review the case again.
Early this year, incoming District Attorney John J. Flynn Jr. realized he had a conflict in examining the case because his office employs the wife of another prominent figure in the Metcalf matter, Holding Center Sgt. Robert Dee. (Dee supervised the use of force on Metcalf, and the commission asserted he should have been disciplined, too.)
Because of the conflict, a judge in February asked a nearby district attorney, Cattaraugus County's Lori Pettit Rieman, to review the facts and bring charges if she saw fit. In June, Rieman said she was nearing the end of her review and would announce what she might do. Seven months after being appointed, she has given no sign that she will charge anyone. Rieman did not return a telephone message for this article.
The night of Nov. 28, 2012
Depew police brought Metcalf to the Holding Center after charging him with breaking into a restaurant on a cold night to cool down in its refrigerator. While in the Depew lockup, he smeared feces on himself. His bizarre behavior continued during the intake process. By the next night, Nov. 28, 2012, he was out of control, according to several people interviewed by state authorities.
Metcalf raked his arms with a plastic fork and hit his face on the walls and bars of his cell. As he shouted "radioactive" and "slaughterhouse," a team formed to hustle him to the infirmary. Once there, they set about covering his face, to prevent him from spitting blood and to allow nurses to examine him.
Sgt. Cross yelled to Deputy Christopher Enser, who was stationed near the infirmary, to bring him a spit mask, Enser testified. Enser, who had been a jail deputy for about four years, said when deposed that he was not familiar with spit masks and did not know where they were stored. But as Enser turned to get one, someone – he could not remember who – handed him a spit mask. He then gave it to Cross, Enser testified.
Cross, according to court papers and his own reports, placed the mask on Metcalf. But he says he never asked for one. Someone just handed him a mask, and he placed it loosely around the inmate's face, he said.
"What did you do with the strings?" a lawyer asked Cross.
"I don't recall," Cross answered. "I just remember trying to hold it in place."
"Did you tie the strings around his neck?"
"I don't recall doing that."
"Would that have been appropriate?"
Said Cross: "I wasn't trained on how to use that."
"You didn't really have any idea how to use it, did you?"
While Cross does not admit tying the strings of the mask, Enser suggested otherwise.
Once Cross had the mask around Metcalf's face, the sergeant asked Enser to place his fingers on the still-loose strings, Enser said.
The lawyer quizzing Enser, Timothy Hudson of Brown Chiari, took that as a sign Cross was about to tie the mask in place and needed a third hand to stabilize the strings.
"Sergeant Cross asked you to place your fingers there?" Hudson asked.
"Yes, sir," said Enser, who is not a defendant in the lawsuit.
"What was he doing while you placed your fingers on the strings of the spit mask?"
"I don't recall," said Enser.
"Was he tying – was he tying the spit mask?"
"I don't recall."
"... All right. Well, after you removed your fingers, what happened to the strings?"
"I don't recall," Enser said again.
"Were they loose?" Hudson pressed.
"Were they who?"
"Were they loose?"
"No, the strings. The strings."
"Oh," Enser said. "I don't recall."
No vital signs
Metcalf reportedly chewed through the mask's fabric. That's when someone retrieved a pillow case to place over his head. The team then waited for an ambulance crew to shuttle Metcalf to Erie County Medical Center for a psychiatric evaluation.
The two Rural/Metro medics later told state investigators that deputies prevented them from examining the patient until he had been wheeled out of the Holding Center and lifted into the ambulance. Crucial minutes elapsed as the procession of deputies moved Metcalf from the infirmary down a hallway to an elevator, then to the ground floor and finally out to a bay and the waiting ambulance.
"I got in the ambulance and pulled the pillow cover off the patient and saw that his face was cherry red," medic Robert Moleski wrote in his internal statement about the call. Then he saw something wrapped around the patient's neck -- the strings of the spit mask.
"It was tied pretty tight and knotted more than once, maybe three or four times," Moleski said in a second statement, this one to the State Police.
He cut the strings free and searched for vital signs. He found nothing.
Metcalf never again showed any sign of life. With his family gathered at ECMC two days later, Metcalf was taken off life support and soon pronounced dead.
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