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Editorial: Sheriff's testimony concerning inmate's death should be unsealed

The case of Richard A. Metcalf Jr., the inmate who suffered fatal injuries while in the custody of Erie County jail deputies, has taken a disturbing turn with a judge’s decision to seal the testimony of Sheriff Timothy B. Howard.

The deposition should be unsealed. The public has a right to know what is happening in its institutions, especially ones as troubled as the county Holding Center downtown and jail in Alden. An appalling number of inmate suicides have been reported in recent years and the county has been the target of action by the U.S. Justice Department.
The Metcalf case was no suicide, however. He asphyxiated after apparently poorly trained deputies used improper restraint methods.

Metcalf, by all accounts, was a mentally unstable, out-of-control inmate after being taken to the Holding Center in late November of 2012. Jail deputies put a “spit mask” on him, and tied its strings too tightly around his neck. Then deputies pulled a pillow case over his head. The Commission of Correction said the mask was improperly applied and should never have been used in the first place because Metcalf was bleeding from his mouth.

When an ambulance was called, deputies delayed medics’ ability to treat Metcalf. He was taken to Erie County Medical Center, where he was taken off life support two days later.
Metcalf should not have died. The public needs to know why it happened and what is being done to make sure inmates’ lives are not endangered in the future. Keeping Howard’s testimony secret is the wrong move for the county. His testimony may be critical to understanding what happened. Sealing it makes it look like the county has something to hide.

The sheriff’s deposition could shed light on actions by jail deputies nearly five years ago. It could add insight into the training deputies receive and department policy and practices. Perhaps for that reason lawyers defending Erie County in a lawsuit filed by Metcalf’s father resisted the request to question the sheriff in the first place.

The plaintiff’s lawyers wanted to know about that training and also the general administrative oversight of deputies. Only weeks ago, State Supreme Court Justice Mark J. Grisanti ruled the sheriff could be deposed. But the judge then sealed Howard’s transcript as well as those of two top aides, Undersheriff Mark N. Wipperman and Jail Management Superintendent Thomas Diina. Testimony from deputies present when Metcalf was fatally restrained is in the public record.

News staff reporter Matthew Spina has been following this case for some time and, as he reported, neither Grisanti nor his clerk would offer an explanation for sealing the materials. A lawyer for the county said the judge was following protocol that calls for sealing civil trial depositions when a criminal investigation is underway. But the plaintiff’s lawyers, who submitted a written request to unseal the documents, want to know, what criminal justice reason?

The Erie County District Attorney’s Office over three administrations has not placed charges or asked a grand jury to hear the case. Because of a conflict incoming District Attorney John J. Flynn Jr. discovered (his office employs the wife of a prominent figure in the case), Cattaraugus County’s Lori Pettit Rieman has been asked to “review the facts” and, if reasonable, bring charges. It has been seven months since she was appointed, and she says she is nearly finished with her review.

So this all circles back to where the buck stops: with Howard. And that is who the public should be hearing from, if not by answering questions in public, then by release of the deposition he has already given.

According to unsealed testimony from the deputies, they knew very little about the spit mask or how to properly apply it. Most troubling, the deputies said they could not recall key actions that night. Their testimony raises serious questions about how the department trains deputies in restraining inmates.

Unseal the sheriff’s deposition. The public has a right to know what he had to say.

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