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Metcalf lawsuit has cost county nearly $15,000 a month since late 2015

Erie County government has been paying outside lawyers almost $15,000 a month, on average, to fend off a lawsuit alleging jail deputies strangled an inmate in 2012.

The family of the late Richard A. Metcalf Jr. filed the suit in 2013, and it was defended at first by lawyers who are county employees. In December 2015, the government started paying the outside law firm Lippes Mathias Wexler Friedman. As of last month, the firm had collected almost $321,000, according to records The News obtained through the Freedom of Information Law.

This year, the county hired two more law firms to separately defend two jail sergeants who were key players in the Metcalf episode: Matthew Cross and Robert Dee. The Bengart and DeMarco firm has received $8,600 so far defending Cross. The Personius Melber firm received $13,435 defending Dee, according to figures from the county comptroller's office.

Those two firms are charging the county hourly rates that range from $50 for a paralegal to $245 for the work of a partner, according to County Attorney Michael Siragusa. Lippes Mathias charges the county $255 an hour for the work of a partner, $200 for associates and $75 for paralegals.

By Dec. 1, the payments to all three totaled $343,000 for a legal matter consumed so far by discovery, jousting and strategy, with no trial date set. That's an average of $14,900 a month since Lippes Mathias received its first payment late in 2015.

Legal fees pile up quickly when municipalities turn to outside law firms. When Mayor Byron W. Brown faced a lawsuit by NRP Properties of Cleveland, which alleged the mayor presided over a play-to-play scheme that cost NRP an important project, the city paid a firm headed by Buffalo's Terrence M. Connors $645,000 over a roughly three-year period. The lawsuit was later dismissed.

Many law firms donate to political campaign funds. Lippes Mathias has given more than $23,000 to County Executive Mark C. Poloncarz's campaign fund over the years. In Erie, the county executive appoints the county attorney and controls the office.

In the Metcalf lawsuit, lawyers from Lippes Mathias in recent months focused on sparing Sheriff Timothy B. Howard and and two top aides from having to sit for pretrial depositions. The attorneys argued they had provided numerous other jail staff with more direct knowledge of what happened inside the Holding Center on Nov. 28, 2012.

Clock runs out on two possible charges in death of Holding Center inmate

State Supreme Court Justice Mark J. Grisanti eventually let Metcalf family lawyers question Howard, his undersheriff and his jail superintendent, but the judge granted a Lippes Mathias lawyer's request to seal the depositions from public view.

In doing so, Grisanti treated the depositions of Howard and his top officials differently than those given by other county employees. Depositions by Dee, who supervised the use of force on Metcalf, and Cross, who admitted placing a spit mask on the inmate — but not to knotting its strings around his neck — are in the public record.

Lawyers for The Buffalo News sent Grisanti a letter in November asking for a meeting to discuss public access to the depositions. The court has not responded, and the testimony by Howard, Undersheriff Mark N. Wipperman and Jail Management Superintendent Thomas Diina remains sealed.

It's rare for a lawsuit involving the Erie County Sheriff's Office to go to trial. Most are settled out of court. The county in 2008 paid $1 million to settle a case triggered by the homicide of mentally ill inmate Michael T. Bennett. The State Commission of Correction found Bennett was asphyxiated in 2002 when a deputy put a boot in his back during an attempt to control his self-injuring outburst.

With Metcalf, the Commission of Correction found that missteps by Howard's jail deputies caused his death. To control the mentally troubled Metcalf during his self-injuring outburst, a team of deputies shackled him at the hands and feet and put a spit mask around his face to prevent him from spitting blood on them and around the jail infirmary.

The deputies, who later said in pretrial depositions that they had no idea how to apply a spit mask, knotted its strings tightly around Metcalf's neck, leaving him unable to breathe. Metcalf chewed through the mask, but the strings remained in place. So the deputies pulled a pillow case over his head, violating the jail's rules.

The spit mask used on Richard A. Metcalf Jr.

Deputies then placed him face down on a stretcher, making it even harder for him to breathe as they wheeled him to a waiting ambulance, the Commission of Correction said.

When the patient reached the ambulance and a medic was allowed to examine him, Metcalf was in full cardiac arrest. He was rushed to the nearest emergency room, at Buffalo General, rather than to a psychiatric evaluation at Erie County Medical Center. Metcalf was taken off life support and pronounced dead two days later.

The ambulance medic who cut the strings free said in a formal statement that the cords had been looped around the neck several times and knotted so tightly he could barely squeeze a finger under them.

Then-District Attorney Frank A. Sedita III never presented the case to a grand jury to assess whether deputies should stand trial. The Commission of Correction, after releasing its report in 2016 confirming that a homicide occurred and blaming jail deputies, urged county prosecutors to take another look.

Because of a conflict of interest with the Erie County District Attorney's Office, the job went in February to Lori Pettit Rieman, district attorney in neighboring Cattaraugus County. But over the months since, it has appeared increasingly unlikely Rieman will place charges.

Rieman has criticized the Commission of Correction's methods in determining Metcalf died of asphyxia and refused to interview certain experts who could testify for the prosecution. Late last month, the five-year statute of limitations ruled out two potential charges: manslaughter and criminally negligent homicide. However,  Rieman has yet to say what she will do with the case.

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