For months, Erie County's lawyers protected Sheriff Timothy B. Howard from questioning in a lawsuit focused on the death of Richard Metcalf Jr., an inmate who a state agency says was suffocated by jail deputies in November 2012.
The county's lawyers lost the battle in recent weeks when the judge presiding over the case let Metcalf family lawyers depose the sheriff, who is up for re-election this year.
State Supreme Court Justice Mark J. Grisanti ruled that Undersheriff Mark N. Wipperman and Jail Management Division Superintendent Thomas Diina, two of Howard's top appointees, could be questioned as well.
However, with the depositions now completed, Grisanti sealed the transcripts and any video record of the question-and-answer sessions. He also prohibited lawyers in the case from divulging details about them “to the media.”
So it's unlikely that the sheriff's sworn answers about the homicide – a matter he has said little about – will become public knowledge before November's election.
Grisanti’s court clerk said neither he nor the judge would comment on why it was necessary to seal the transcripts. But Jennifer C. Persico, a partner with the law firm defending the county, says Grisanti was following normal procedure to seal depositions when a potential criminal prosecution is brewing.
When the State Commission of Correction asserted last year that Metcalf was suffocated and did not die of a heart attack as the medical examiner found in 2012, the agency urged county prosecutors to consider charging the deputies who cut off the inmate's airway. Because the Erie County district attorney employs the spouse of one of the key deputies, Sgt. Robert Dee, the Cattaraugus County district attorney was asked in February to take up the matter.
Though Persico said a criminal investigation is pending, Cattaraugus District Attorney Lori Pettit Rieman has given no sign over the last six months that she will prosecute any of the jail staff.
Depositions in civil cases do not routinely become available to the news organizations and public. But when lawyers use them to back up their written motions, passages or entire depositions are revealed. Some testimony by the jail deputies already has come to light in the Metcalf lawsuit.
To protect Howard from being deposed, the county defense team argued it already had presented 19 employees “with personal knowledge of the alleged incident” and agreed to present even more. Howard and his other top aides “possess no more information than the individuals who have been and will be produced,” a lawyer for the county wrote in court papers. Still, Metcalf lawyers insisted they be able to question Howard about, among other things, his hiring, training and oversight of jail deputies.
Howard sat for depositions in other lawsuits that sprung from deaths in the county Correctional Facility and the Holding Center, both of which he oversees. In 2011, a lawyer questioned him about Marguerite Arrindell, who was being held on drug charges until she suffered the stroke that led to her death at age 54. The lawyer contended in a civil rights lawsuit that the Holding Center’s failure to give Arrindell her blood-pressure medicine, despite her pleas, led to her collapse.
Lawyers often tell their witnesses to keep their answers brief. In the Arrindell deposition, Howard said “I do not recall” in response to several questions, and he could not confirm who his undersheriff or Holding Center superintendent was when Arrindell suffered the stroke in 2008. Erie County paid $90,000 to settle the Arrindell lawsuit.
The Metcalf lawsuit has been underway since 2013, and lawyers for the Metcalf family have amassed a trove of information.
Metcalf, a store clerk, had never been diagnosed with a mental illness, but he was acting bizarrely in the run-up to his death at age 35. He broke into a Depew restaurant to cool down in its walk-in refrigerator, odd considering the near-freezing temperatures during that week in November 2012. Depew police said he came at them with a wrench. They hit him twice with a Taser to control him and eventually get him to the Holding Center.
The next day, Nov. 28, 2012, he reportedly was raking his arm with a plastic fork, hurting himself on his cell’s bars and repeating the word “radioactive.” A team of deputies rushed into his cell and hustled him in handcuffs to the infirmary, where he was spitting blood.
A spit mask was applied, and its strings were knotted tightly around his neck, the State Commission of Correction said in its report on the case. When Metcalf chewed through the mask, someone placed a pillowcase over his head, while keeping remnants of the spit mask in place. Depositions of key personnel indicate that deputies kept Metcalf face down on an examining table to await the ambulance that would take him to Erie County Medical Center for a psychiatric evaluation.
Under the pillowcase, Metcalf could not breathe, the commission said. But the ambulance medics were not allowed to examine him until deputies rolled him, face down, through a hallway to an elevator, lowered him to the ground floor and then got him into a bay where the ambulance was parked.
With Metcalf finally inside the vehicle, a medic removed the pillowcase to find the spit mask. The commission said it was knotted so tightly the medic could barely squeeze a finger under the strings to cut it free.
When it was removed, the medic saw Metcalf’s cherry-red face. There was no pulse and no respiration. Metcalf died at ECMC when life support was ended on Nov. 30, 2012.
While the medical examiner at the time concluded Metcalf died of a heart attack, she still ruled the death a homicide – at the hands of others – because “multiple blunt force injuries with associated stress” contributed to his demise. Dr. Dianne R. Vertes noted she found several bruises around Metcalf’s body, especially on his torso.