Lawyers agree to keep sheriff's deposition in Metcalf case sealed - The Buffalo News

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Lawyers agree to keep sheriff's deposition in Metcalf case sealed

Lawyers on both sides of a lawsuit focused on the death of Holding Center inmate Richard A. Metcalf Jr. have agreed to keep the depositions of Sheriff Timothy B. Howard and two of his top aides sealed, one of the attorneys said Wednesday.

Jim Brown, whose Brown Chiari law firm represents Metcalf's father, said his team and lawyers defending the county have agreed not to revisit State Supreme Court Justice Mark J. Grisanti's order sealing the testimony of Howard, Undersheriff Mark N. Wipperman and Jail Management Superintendent Thomas Diina.

Grisanti sealed the depositions in August, without explaining why. But he intended to revisit the matter in court Thursday because the Brown Chiari firm said it wanted to refer to the depositions in new court papers, which would enter the public record. The lawyers needed the depositions unsealed in order to file the papers, which could then be viewed by the public on a state-run website.

A lawyer defending the county, Jennifer C. Persico of the Lippes, Mathias, Wexler firm, responded with a written argument saying the plaintiff's attorneys were attempting to try the case in the media, and she complained about the media interest in the case so far. She said Brown Chiari can still file its new papers by presenting them only to the judge and not posting them on the website.

Brown told The News that the matter had become a fight that wasn't necessary at this point, and that both sides agreed Grisanti's order could remain in place.

While the county's defense team wants the depositions of Howard and two top aides sealed, it has not sought to seal the depositions of several front-line Holding Center deputies, including those who are defendants in the civil case.

Several of the deputies said that while they set out to place a spit mask on Metcalf, because he'd been  bleeding from the mouth and spitting blood around the jail infirmary, they did not know how to use a spit mask. The state Commission of Correction says a deputy, or deputies, knotted the spit mask too tightly around Metcalf's neck, strangling him in November 2012.

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