A state Supreme Court justice is likely to rule Wednesday on the appointment of a special prosecutor in the November 2012 death of Erie County Holding Center inmate Richard A. Metcalf Jr.
Judge Christopher J. Burns has been asked by Erie County District Attorney John J. Flynn Jr. to select someone to investigate the death, because of a conflict of interest in Flynn's office. His office employs a prosecutor related to one of the jail sergeants whose actions will be investigated, Robert Dee.
At one time, Flynn suggested the Niagara County District Attorney's Office act as the special prosecutor. But the Niagara County office has a conflict as well, Niagara District Attorney Caroline A. Wojtaszek said Monday. Without revealing the conflict, she told The News that her office cannot take the case.
The judge, who had been expected to act on the matter Monday, told his courtroom that he need a couple of days to collect information. He asked Flynn's representative and other lawyers interested in the request to return Wednesday morning.
In October, the state Commission of Correction revealed Metcalf died not of a heart attack but was suffocated by jail deputies improperly applying restraint devices. The agency urged the Erie County district attorney to conduct a new criminal probe because then-DA Frank A. Sedita III charged no one in 2013.
Flynn in October was campaigning for election as district attorney and agreed to have the matter investigated if it hadn't been by the time he took office.