The prosecutor asked to decide whether Erie County Holding Center deputies should be charged in an inmate's death said she has doubts about the state exam that found the victim was asphyxiated, and she stressed she would never call as a witness the nationally known forensic pathologist who was key to the finding, Dr. Michael Baden.
"I wouldn't use him," Cattaraugus County District Attorney Lori Pettit Rieman said days ago, when The Buffalo News asked why over the last several months she never contacted the expert who could be pivotal to a criminal trial.
Rieman, without specifying her reasons, said she lacks confidence in Baden's credibility. She also doubts the methods he and other doctors on a state review board used to determine that jail deputies strangled the mentally troubled Richard A. Metcalf Jr. by knotting the strings of a spit mask around his neck. The state review board said Metcalf did not die of a heart attack, as a former Erie County medical examiner concluded in 2012.
Taken in total, Rieman's comments make it appear less likely she will lodge charges against any of Sheriff Timothy B. Howard's deputies -- as the State Commission of Correction suggested when it asked that a criminal prosecutor become involved. But Rieman stressed that no one should conclude, based on her remarks, what she might do in the case.
The Metcalf matter has been on Rieman's desk for eight months. On Nov. 29, the five-year statute of limitations will run out on at least two potential charges, manslaughter and criminally negligent homicide. But Rieman said she will announce her decision at a news conference when she is ready.
She gave conflicting answers on whether that will happen before Election Day, when her re-election is likely because she has no opponent. Voters also will decide whether Howard, also a Republican, will serve a fourth four-year term as Erie County sheriff.
Baden's involvement in high-profile death investigations over the years and his role hosting an HBO program on how the forensic sciences solve crimes have made him one of the nation's best-known forensic pathologists. He examined Metcalf's death as an unpaid member of the State Commission of Correction's Medical Review Board, which was created in the wake of the Attica prison uprising to examine deaths in New York's jails, prisons and lockups.
Baden is the only review board member trained to investigate unnatural deaths. If called to testify in a criminal trial, he would not collect a fee for his time.
The Medical Review Board typically begins its review days or weeks after an inmate dies. Consequently, it rarely if ever has access to the inmate's body. The panel instead reviews the facts, lab analyses, medical histories and microscopic slides gathered by local medical examiners, among other things.
That method troubles Rieman, who was asked to examine Metcalf's death because a conflict of interest disqualified the Erie County District Attorney's Office.
"He didn't even examine the body," Rieman said of Baden.
"It's really easy to sit in an air-conditioned room and look at an autopsy report and say, 'He was murdered,' " she told The Buffalo News. "That's not what we do in our world. We deal with people who are actually witnesses."
Asked to comment, Baden countered Rieman's remarks in a couple of ways. First, while he and the rest of the Medical Review Board determined Metcalf's death was a homicide -- "at the hands of others" -- it was not called a murder, he said. Whether it was a murder, or any crime, is a legal determination for prosecutors, judges and juries, he said.
He went on to say that Rieman may not understand that "sometimes law enforcement does cause people to die."
"And the only way you find out is by looking at it afterward," he said.
The Medical Review Board concluded Metcalf was asphyxiated based on the autopsy report, microscopic slides, hospital records, analyses of Metcalf's blood taken at the hospital, ligature marks on his neck seen in an autopsy photo, jail videotapes and several witness statements collected by the State Police.
"The commission stands by the Medical Review Board’s findings in Mr. Metcalf’s death," Commission of Correction spokeswoman Janine Kava said. "We are confident in the board’s expertise and its investigative process."
In its investigations, the review board wants to know if rules or policies that jails must follow were violated and contributed to a death, Kava said. When it finds that crimes might have occurred, it lacks the legal power to prosecute on its own. So its members must refer potential cases to outside agencies.
"They will continue this practice as appropriate," she said.
Second doctor rebuffed
With Rieman saying she wanted to deal with actual witnesses, The News asked why she has not called a witness who left her telephone messages and sent her a registered letter offering information, Dr. Andrew Poreda.
Poreda was the attending physician in the Buffalo General Hospital emergency room on the night of Nov. 28, 2012, when Mectalf arrived from the Holding Center with no pulse and no respiration. Like Baden and the Medical Review Board, Poreda believes Metcalf was asphyxiated and did not die of a heart attack, according to a lawyer who has talked to him about the matter and read his registered letter to Rieman.
Rieman told The News she will not interview the doctor.
He gave a written deposition to the State Police, she said, so she does not feel comfortable letting him add information that wasn't in the statement.
"I am sorry," she said. "If he has more to add that he didn't put in his deposition, that is really questionable."
In the deposition taken in May 2013, Poreda gives no opinion about the cause of death, and there is no indication Investigator James Thompson asked his opinion. The deposition is mostly about the patient's condition ["never gained consciousness"] and the measures taken to diagnose and stabilize him [hooked to a ventilator, given a CT scan and an ultrasound].
Before closing his statement, however, Poreda offered this: "I spoke with the paramedics who had transferred the patient from the Erie County Holding Center, and they advised me that the patient had a spit sock on his face when they met him at the facility. They advised me that the spit sock had been tied very tightly around the patient's neck. I told the paramedics to document their findings."
Nov. 28, 2012
Facts collected by the State Police, the Commission of Correction and lawyers pressing a lawsuit against Erie County describe this sequence of events on Nov. 28, 2012: A team of Holding Center deputies pulled the deranged, self-injuring Metcalf from his cell and hustled him to a jail infirmary. With Metcalf bleeding from the mouth and spitting blood, someone retrieved a spit mask. It was placed on him even though, as several deputies later said in civil depositions, they had no idea how to apply a spit mask.
As the Medical Review Board later said, the strings of the mask were knotted tightly around Metcalf's neck, leaving him unable to breathe. When Metcalf chewed through the mask's fabric, deputies pulled a pillow case over his head, keeping the strings of the mask bound in place. Deputies held Metcalf face down on a gurney, making it even more difficult for him to communicate or take a breath.
The deputies blocked two ambulance medics -- called to take Metcalf to a psychiatric evaluation -- from assessing the patient or even seeing his face for several crucial minutes. Only after they had wheeled Metcalf, face down, into their ambulance were the medics allowed to unstrap him, flip him over and pull off the pillow case.
One of them saw the spit mask and cut through the strings.
Metcalf's face was red, the medic said in a statement. He was not breathing, and his heart had stopped.
Two days later, with Metcalf's family and friends gathered at his hospital bed, he was taken off life support and pronounced dead at age 35.The Erie County medical examiner at the time, Dr. Dianne R. Vertes, said Metcalf died of a heart attack, but also ruled the death a homicide. Noting his many bruises and broken ribs, she said the stress of his physical injuries contributed to his demise.
A former Erie County prosecutor, Mark Sacha, said he doesn't know why Rieman would limit her options.
Sacha presented the 2002 death of another Holding Center inmate, Michael T. Bennett, to a grand jury. Bennett, diagnosed with paranoid schizophrenia, died from traumatic asphyxia when a Holding Center deputy placed a boot in his back in an attempt to control him during a self-injuring outburst, the Commission of Correction said at the time. The grand jury did not issue an indictment.
There is no statute of limitations on murder charges, Sacha observed. But he thinks a charge of second-degree murder would be a heavy lift in the Metcalf case.
"From what I understand, this is not a case of intentional murder or the equivalent," he said.
In her brief interview, Rieman stressed that she is not re-investigating the Metcalf case.
"I am reviewing what was done and determining whether anything else needs to be done to come to a conclusion," she said. "The State Police have done a very thorough job. I am just answering some questions that I have that maybe they didn't answer."
Based on the State Police investigation, former Erie County District Attorney Frank A. Sedita III did not press charges and never presented the case to a grand jury.
If Rieman does not prosecute, the only proceeding in which some person or entity, namely Erie County government, will be held accountable for Metcalf's death is the lawsuit his father initiated years ago.
The jail deputies involved have not faced departmental charges. They did many things wrong when they applied the spit mask, the Commission of Correction said. For one, spit masks are to be used only with restraint chairs, so the inmate can remain upright. The manufacturer's instructions say they are not to be used with inmates spitting blood, because the blood can block their airway. The masks are not to be knotted around an inmate's neck. Jail rules bar pillow cases from being pulled over an inmate's head.
The commission urged Howard to investigate and take administrative action against the two sergeants who supervised the response. One of them was Matthew Cross. He admitted in written statements placing the mask on Metcalf's face -- but only loosely, he said.
Howard told the Commission of Correction it had no power to make him discipline anyone. Besides, the sheriff responded in a letter written by the county attorney, the deputies were cleared of wrongdoing by his internal investigation and by the State Police.