Special prosecutor Lori Pettit Rieman knew in October she would not place charges against any Erie County jail deputy in the death of inmate Richard A. Metcalf Jr. but withheld announcing the decision until weeks after the November election.
In an Oct. 11 email to two State Police investigators, written after a phone call from a Buffalo News reporter, Rieman said she had made up her mind that it was not criminally prosecutable.
"Apparently," Rieman wrote, "the sheriff is up for re-election and it would possibly (I doubt it though) affect that."
Rieman added: "I told him that prosecuting crimes is not a political event in my county."
She then waited two months to announce her decision publicly. In the nine weeks between her email and her announcement, Election Day passed. So did the statute of limitations on the two most likely criminal charges the deputies could have faced.
The News obtained the email and others with a Freedom of Information request to Cattaraugus County, where Rieman serves as district attorney.
In February 2017, Rieman was asked to reconsider whether criminal charges should be filed in the Metcalf case. A state watchdog agency, the Commission of Correction, said the inmate did not die of a heart attack in 2012, as a medical examiner concluded. The commission said he died of asphyxia when the strings of a spit mask were knotted tightly around his neck rather than around the back of his head.
The case was given to Rieman because the Erie County District Attorney's Office employed the wife of a jail sergeant involved in the episode.
Like Erie County Sheriff Timothy B. Howard, Rieman is a Republican. She, too, was up for re-election in November but had no opponent. Howard won on Nov. 7 by about a percentage point over Democrat Bernard Tolbert.
The News tried to contact Rieman this week to ask about the comment regarding the sheriff and his election. "She is not taking your calls," a Rieman aide said.
2012 jail death
Metcalf died in 2012 after deputies tried to subdue the inmate, who was behaving erratically and spitting blood. The county medical examiner found in 2012 that jail mistreatment and Metcalf's own bad health brought on a heart attack. The state Commission of Correction's Medical Review Board found Metcalf was asphyxiated.
To stop him from spitting blood, the commission found, poorly trained deputies knotted the strings of a spit mask tightly around his neck, leaving him unable to breathe. Jailhouse video shows the deputies then placed a pillow case over his head and strapped him face down on a stretcher. The deputies prevented the medics – who were to take him to a psychiatric evaluation – from examining him or even seeing his face until the stretcher was rolled from an upper floor down to their vehicle, the commission found.
One of the medics later said in a formal statement that the strings of the mask were wound and knotted so tightly he could barely squeeze a finger under them to cut them from the inmate's neck. By then, the patient was in full cardiac arrest.
When Rieman issued a news release Dec. 15 saying no one would be charged, her letter to the judge made clear she was swayed by the State Police investigation and the county medical examiner's finding in 2012. The Commission of Correction's Medical Review Board had no access to the victim's body and "only reviewed records, photographs and the State Police investigation," Rieman wrote.
An attorney for the Metcalf family, Thomas J. Casey, said he was disappointed to see that the elections were part of Rieman's thinking as she kept her decision secret from October to the middle of December.
"I'm not saying that politics played a role in her decision," he said. "But judging by her email, the election played some kind of a role in the timing of her announcement."Rieman's silence bothered Casey and the family in other ways. Casey said he and other lawyers pressing a wrongful death lawsuit against Erie County had once discussed among themselves and with the Metcalf family asking the State Attorney General's Office to consider a criminal case. Then Rieman was given the file.
The timing of her announcement left the family's lawyers with no chance to approach any another agency, he said, because the door had closed on the most likely state charges.
While there is no statute of limitations on murder, assorted lawyers, including former prosecutors, have told The News that a murder conviction would be unlikely given the circumstances of Metcalf's death. And while the Commission of Correction also asked the U.S. Justice Department to begin a criminal civil rights investigation, it never did so.
One family member, the victim's uncle, reached out to Rieman weeks before the expiration date. Paul Metcalf of Massachusetts sent an email telling Rieman that justice had not been served, and the family was counting on her. He also asked why she had not called some potential witnesses.
The matter had been on her desk for nine months but, Paul Metcalf noted, she had not called Dr. Michael Baden, the forensic pathologist who concluded for the Commission of Correction's Medical Review Board that Metcalf died of asphyxia – not a heart attack.
Nor had she called Dr. Andrew R. Poreda, who treated Metcalf after an ambulance rushed his lifeless body from the Erie County Holding Center to Buffalo General Medical Center on Nov. 28, 2012. Doubting that a heart attack caused the death, Poreda called Rieman's office to offer information. Finally, he sent her a registered letter asking, "Can you please contact me?"
Rieman contacted neither doctor before deciding the case wouldn't be prosecuted.
Another lawyer involved in the wrongful death lawsuit, Jim Brown of the Brown Chiari law firm, sent a letter offering her the deposition transcripts and other materials she would not see elsewhere. Rieman didn't respond to him, either.
Paul Metcalf heard back from Rieman only after sending her another message, venting his frustration, on Nov. 22. Within minutes of that email, Rieman shot back: "Please stop sending me your threatening emails. You have absolutely no clue as to what I am doing or have done with respect to your nephew's case as I have not released my results or conclusions yet."
But Rieman had released her conclusions to a select group, James Thompson and Richard Landahl of the State Police. Both were involved in the State Police investigation of the Metcalf death in 2013. Her emails suggest she relied on them to become familiar with the facts after being named the special prosecutor.
Rieman was writing to the two investigators on Oct. 11 to set up a meeting in which she could again review the facts and prepare public statements before scheduling a news conference. Thompson responded to suggest a couple of dates later that month. But the correspondence provided to The News indicates Rieman then dropped the matter for weeks.
"I am sorry, I got super busy and forgot to respond," she wrote to the two troopers on the morning of Nov. 28, five years to the day after jail deputies knotted a spit mask around Metcalf's neck and just as two potential charges were about to vanish.
Rieman and the police officials then arranged to meet in mid-December, even though Rieman had already abandoned her plan for a news conference.
"I do not intend to hold a press conference as the media have been very rude and aggressive towards me," she told the troopers. "They are not entitled (even though they think they are) to interview me."
Rieman released her decision in a news release Dec. 15, the day she met in Little Valley with the victim's father, Richard A. Metcalf Sr., and Casey, his attorney. Metcalf appreciated that Rieman met with him to explain her decision and answer his questions, Casey said. The Erie County District Attorney's Office had never granted Metcalf a meeting about his son's death.
Casey said Metcalf also appreciated two points Rieman placed in her report to the State Supreme Court justice who appointed her special prosecutor, Christopher J. Burns. She lamented that no one had taken the time "to sit down with Mr. Metcalf until today." She also said that while she chose not to prosecute the case – because proving criminal negligence is not the same as proving civil negligence – "Richard Metcalf's death was completely preventable."
"There were multiple junctures at which proper intervention could have prevented his ultimate and horrible death," she wrote.