Richard A. Metcalf Jr. died five years ago Thursday after Holding Center deputies knotted a spit mask around his neck and pulled a pillow case over his head.
Though a state agency urged prosecutors to consider charging key jail deputies in the inmate's death, two potential counts are now off the table: manslaughter and criminally negligent homicide.
A five-year statute of limitations applies to those charges, which some court observers said were a prosecutor's most likely options if a criminal case were to begin.
The prosecutor in the matter, Lori Pettit Rieman of Cattaraugus County, has given no sign she will charge anyone, even though Metcalf’s death has twice been determined a homicide — a death at the hands of others.
Rieman, who took on the case because the Erie County District Attorney's Office had a conflict of interest, has said only that she will announce her decision when ready. She did not respond to a telephone message or an email seeking comment for this article.
While Rieman refuses to say what she will do in the case, she has cast doubt on the evidence presented to her. During a brief interview with The Buffalo News in October, she questioned the credibility of the state forensic pathologist who concluded Metcalf was strangled, Dr. Michael Baden. Rieman said she would never call Baden to testify.
“It’s really easy to sit in an air-conditioned room and look at an autopsy report and say, ‘He was murdered,’ ” she said. “That’s not what we do in our world. We deal with people who are actually witnesses.”
She also said she refuses to telephone the emergency room physician who examined Metcalf on the night of Nov. 28, 2012, Dr. Andrew R. Poreda. Poreda believes the inmate died from asphyxia, not a heart attack as a past Erie County medical examiner concluded.
Poreda left telephone messages for Rieman and sent her a registered letter asking to speak with her. But Rieman told The News in October she will not call him because she frowns on any attempt to add or change the statement Poreda gave the State Police when they investigated the homicide.
“If he has more to add that he didn’t put in his deposition, that is really questionable,” Rieman said at the time.
Poreda’s statement, however, indicates the State Police never asked his opinion about the cause of death.
There are exceptions to statutes of limitations. If a suspect has gone into hiding, or kept the crime concealed, prosecutors can argue more time should be allowed, local lawyers told The News.
Further, defendants can waive the statute if it’s in their best interests, say, to continue negotiating for a better outcome, said Thomas J. Eoannou, a well-known defense lawyer in Buffalo not connected to the Metcalf matter.
There is no statute of limitations on second-degree murder. But a murder conviction would require proof that the deputies intended to cause the death or acted with depraved indifference. The defendants could argue they did not intend for someone to die, Eoannou said.
“You certainly, as a prosecutor, would not want to forgo the manslaughter charge with that fact pattern,” he said of the facts in the Metcalf episode. “They could say they did not intend to cause the death.”
Cross and other deputies named as defendants in the Metcalf family's wrongful death lawsuit against Erie County said in depositions conducted by the Brown Chiari law firm that they had no idea how to use a spit mask. Cross also said he didn't tie the strings and didn't know who did. But the knots left the inmate straining for air and unable to cry out for help.
The State Commission of Correction, which investigated the death, says Metcalf took his last unassisted breaths as the stretcher was rolled through the labyrinth of hallways to an ambulance waiting to take him to a psychiatric evaluation.
When the ambulance medics were finally allowed to pull off the pillow case and cut through the clutch of strings, they found no pulse and no respiration. They rushed their patient to the nearest emergency room. Metcalf, 35, was pronounced dead two days later, Nov. 30. 2012, after being taken off life support.
In their statements to state investigators, several of the deputies said they had to keep Metcalf restrained and face down on the stretcher because he continued to struggle throughout the transport from an upper floor to the ambulance. But video taken by jailhouse cameras shows Metcalf did not move.
The Erie County District Attorney at the time, Frank A. Sedita III, chose not to press charges. The medical examiner, while ruling the case a homicide, said Metcalf died chiefly of a heart attack. Further, a State Police investigation did not support criminal charges, Sedita said.
The Commission of Correction, which polices local jails, produced its report in 2016. It called Metcalf’s death a clear case of asphyxiation by deputies who violated several policies and procedures. The state officials urged the Erie County District Attorney’s Office to take another look.
One of the prosecutors in the office is wed to jail Sgt. Robert Dee, another key player in the matter. So a judge in February asked the district attorney in neighboring Cattaraugus County — Rieman — to assess whether criminal charges should be lodged.