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Sheriff's testimony in inmate-death lawsuit is riddled with 'I don't know'

Lawyers pressing a lawsuit over the death of an Erie County Holding Center inmate had the chance in August to question Sheriff Timothy B. Howard, the elected official who oversees the jail where Richard A. Metcalf Jr. was strangled.

Howard was not present when jail deputies knotted a spit mask around Metcalf's neck, pulled a pillowcase over his head and denied him medical attention as he went into cardiac arrest.

For that reason and others insisted upon by the county's defense team and enforced by the judge, the Metcalf family lawyers could ask the sheriff only about the hiring, firing, supervision and training of his jail staff. Over the course of the deposition, Howard answered "I don't know" 68 times. The response was most common during questions about training programs within the Jail Management Division.

Timothy M. Hudson of the Brown Chiari law firm asked Howard, for example, whether all jail deputies are required to to undergo the annual in-service training.

"I don't know," Howard answered.

"What topics are covered during the annual in-service training?" Hudson asked later.

"I don't know," Howard said.

Hudson asked whether Howard had developed any of the curriculum for certain training programs.

"No," Howard said.

Who did develop it? the sheriff was asked.

"I don't know."

The transcript entered the public record days ago after attorneys for The Buffalo News asked the judge to unseal the document, reversing the action he took in the run-up to the November election that gave Howard a fourth four-year term.

In August, Howard had been sheriff for 12 years and served as undersheriff for almost eight years before that. During the deposition, he showed he knows a lot about how Jail Management Division employees are tested, hired, disciplined and promoted.

Then the questions turned to their training, especially in the handling of mentally ill inmates, a subject relevant to the Metcalf case because the inmate appeared to be in the throes of a psychotic episode when asphyxiated.

Hudson asked whether mental health topics are covered during certain training programs.

"Yes," Howard said.

"What is your understanding of the mental health topics that are covered during their training?"

"I don't know," the sheriff responded.

"What's the basis for your understanding that mental health topics are covered?"

"I don't know."

"Have you ever seen any materials regarding the training of sheriff's office personnel on mental health topics?" Hudson asked the sheriff.

"Yes," Howard said.

"And what materials have you seen, sir?"

"I don't know."

The topic later turned to assessing inmates at risk for suicide. Suicide had been a front-burner issue for county officials during Howard's first term, when the Holding Center's suicide rate reached five times the national average for county jails and the U.S. Justice Department sued to force more humane conditions.

"Are sheriff's deputies trained on suicide-risk assessment?" Hudson asked the sheriff.

"Yes," Howard said.

"Who trains sheriff's deputies on suicide-risk assessment?"

"I don't know."

"What's the nature of the training that jail management division employees are provided on suicide risk assessment?"

"I don't know."

"To your knowledge," Hudson asked at another point, "does training with respect to the suicide prevention cover topics that include identifying inmates who are potentially suicidal?"

"I don't know."

Aside from the 68 times he said "I don't know," Howard used other terms to indicate he could not answer nine other questions, even though the housing of inmates is one of the sheriff's core missions.

County government budgeted $124 million for the Erie County Sheriff's Office in 2017, when Howard sat for the deposition. Most of the money, almost 80 percent, was devoted to running the Holding Center in downtown Buffalo and the Correctional Facility in Alden. Most of Howard's employees belong to the Jail Management Division and its team of health care workers.

Howard can enter the busy Holding Center by walking through a door just steps from his desk. Hudson asked how often he does so.

"With what frequency do you actually go into the Holding Center?"

"It's random," Howard said.

"Are you able to quantify that for me?" Hudson said.

"About once a month, other than other chance visits," the sheriff responded.

Roger Krieger worked for five Erie County sheriffs – from B. John Tutuska, who took office in 1959, to  Thomas Higgins, who took office in 1986. After Krieger retired as the assistant chief of operations in 1988, he went on to work as the police chief in Crystal River, Fla., and as assistant superintendent of a  multi-county detention center there.

The News asked Krieger, who still resides in Florida, to read Howard's deposition.

"Other than B. John Tutuska, no sheriff has ever been really thrilled at being in charge of the jail," Krieger said. "The jail has always been treated as the ugly stepchild, which is unfortunate."

But none of the sheriffs he worked for were in the Holding Center as little as once a month, he said.

Krieger, who has been critical of Howard's management, said he was struck by how little the sheriff seemed to know about certain aspects of his office, especially in contrast with the other sheriffs he worked for.

"Howard, he didn't seem to be familiar with half of the things they were saying to him," Krieger said.

The sheriff and his top officials refuse to comment on pending litigation.

The Metcalf family's lawsuit against Erie County and nine jail deputies alleges, among other things, that the county was negligent  in hiring, training and supervising the employees who handled Metcalf on the night of Nov. 28, 2012, and strangled him with the strings of the spit mask.

The state Commission of Correction, which found Metcalf was strangled, laid part of the blame on training. The state agency's assertion was bolstered by some of the deputies. Testifying in their own depositions, they said they had no idea how to apply a spit mask. That included the sergeant who admitted placing the mask on the inmate but not to tying it, Matthew Cross.

The spit mask used on inmate Richard A. Metcalf Jr. When Metcalf chewed through the mask, Holding Center deputies pulled a pillow case over his head, making it harder for him to breathe.

But the Metcalf family's ability to allege negligent training and supervision was dealt a serious blow in a recent ruling by Mark J. Grisanti, the state Supreme Court justice presiding over the case. Here's how it came about:

Lawyers on both sides had agreed to drop the Sheriff's Office as a defendant because, as judges have determined in past cases, a sheriff's office is just an administrative arm of a county government and "not a legal entity possessing the capacity to be sued."

Once the Sheriff's Office was dropped as a defendant, the county's defense lawyers then argued that the Metcalf team could no longer allege the county failed to properly train and supervise the deputies because county government isn't expected to train and supervise deputies. The Sheriff's Office hires, fires, trains and supervises them, said Jennifer C. Persico of the Lippes, Mathias law firm.

With the Sheriff's Office no longer a defendant, and Howard not named as a defendant, the Metcalf family's attorneys no longer had a defendant to blame for negligent training and supervision.

The county's argument seemed to contradict the county's own assurances, provided in 2011 under then-County Executive Chris Collins, that it would ensure certain training requirements were met in order to settle the Justice Department lawsuit.

The Brown Chiari lawyers had sought for months to question Howard in the Metcalf case, but the county's defense team rebuffed them by saying it had provided many other witnesses. Grisanti eventually allowed the deposition, but it had to focus only on the matter of who hires, fires, trains and supervises jail deputies.

On Aug. 15, the lawyers sat for separate depositions with Howard and two top aides, Undersheriff Mark N. Wipperman and Jail Management Superintendent Thomas Diina. The Brown Chiari lawyers asked questions intended to lead the three into acknowledging county government plays a role in training and monitoring jail staff because various county officials budget for jail operations, negotiate labor agreements and provide other administrative duties.

In the end, all three of the top officials said little that would indicate county government plays any role in training, hiring and supervising jail deputies.

As for the questions Howard was unable to answer, Diina, displayed a more thorough knowledge of how training programs unfold in his division. But, like Howard, he was unable to indicate who had created certain training curricula. Wipperman, when asked about curricula, said the jail division's training director, Sgt. Robert Cathcart, draws it up. Howard, Diina and Wipperman said they rely on Cathcart to run the training programs.

Despite the arguments from Brown Chiari lawyers that county government has a duty in training and monitoring employees, Grisanti agreed with the county's defense team that one of the lawsuit's allegations had to be dismissed.

Brown Chiari says it's considering its next move.

DA calls Metcalf death in jail 'preventable,' calls for Holding Center changes

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