Jail deputies in Met­calf death tes­tify they were un­fa­mil­iar with ‘spit masks’

The Buffalo News - - FRONT PAGE - By Matthew Spina

A judge re­cently sealed Sher­iff Ti­mothy B. Howard’s de­po­si­tion in the case of an in­mate who died at the hands of his jail deputies. But his deputies’ tes­ti­mony about the death of Richard A. Met­calf Jr. re­mains in the public record.

They say they knew lit­tle about how to ap­ply the de­vice that stran­gled Met­calf – a “spit mask.”

Yet they put one on him any­way.

Sgt. Matthew Cross placed the mask on Met­calf as oth­ers held the in­mate prone on an ex­am­in­ing ta­ble, to pre­vent him from spit­ting blood around the Erie County Hold­ing Cen­ter in­fir­mary.

“You had never used a spit guard, is that cor­rect?” a lawyer asked Cross. “That’s cor­rect.” “... And you had never placed a spit guard on any­one, ei­ther in prac­tice, train­ing, or in the course of ful­fill­ing your du­ties as a sher­iff. Am I cor­rect?”

“I don’t re­call hav­ing any deal­ings with the spit guard, no,” Cross an­swered.

“... Did you ever tell any­body, ‘Jeez, I never used a spit guard be­fore. I’ve never been trained. I re­ally don’t know how to use it. Can any­body give me any ad­vice for how to use it?’ Did you have any con­ver­sa­tion like that?” “No, sir,” Cross an­swered. Deputy Scott Emer­ling was among the deputies hold­ing Met­calf down.

“Do you ever re­mem­ber see­ing one be-

ing placed on an in­di­vid­ual as an ex­am­ple, as a demon­stra­tion?” a lawyer asked him. “No,” Emer­ling said. “Did you ever hold one prior to Nov. 28, 2012?” “Not that I re­call.” Deputy Robert States held Met­calf’s right arm.

“Have you ever seen one used?” he was asked dur­ing a de­po­si­tion. “No.” “Have you ever heard of one be­ing used?” “No.” Met­calf, a 35-year-old store clerk who for days had ap­peared de­ranged, reck­less and con­fused, died from as­phyxia be­cause the strings of the spit mask were bound tightly around his neck, ac­cord­ing to the agency that in­ves­ti­gates deaths in New York’s jails and pris­ons.

The State Com­mis­sion of Cor­rec­tion went on to say Howard’s jail deputies then made it even tougher for Met­calf to breathe by pulling a pil­low­case over his head, an act pro­hib­ited by the jail’s own rules.

Fi­nally, the deputies blocked am­bu­lance medics – who could not see the mask – from as­sess­ing their shrouded pa­tient for sev­eral min­utes as his life slipped away, the agency says.

Five years later, no crim­i­nal charges have been filed, even though the Com­mis­sion of Cor­rec­tion last year urged prose­cu­tors to take another look. A law­suit that Met­calf’s fa­ther filed against Erie County and nine Hold­ing Cen­ter deputies re­mains the only court pro­ceed­ing un­der­way to hold peo­ple or an in­sti­tu­tion re­spon­si­ble.

The Com­mis­sion of Cor­rec­tion told Howard he should dis­ci­pline Cross for the way he ap­plied the mask. In a let­ter writ­ten by the county at­tor­ney, Howard told the agency it had no power to make him do so. Be­sides, County At­tor­ney Michael Si­ra­gusa wrote, the sher­iff’s in­ter­nal in­ves­ti­ga­tion and a State Po­lice in­quiry cleared Cross of wrong­do­ing.

While Howard says Cross did noth­ing wrong, the Sher­iff’s Of­fice’s year­sold writ­ten pol­icy on spit masks de­scribes a dif­fer­ent way to ap­ply one:

“It should not be tied tightly around the in­mate’s face or neck,” the pol­icy says. “At all times the in­mate’s abil­ity to see and abil­ity to breathe com­fort­ably must not be ob­structed.” The pol­icy stresses that masks are to be used only if in­mates are sit­ting in re­straint chairs, not held face down on a stretcher, as was done with Met­calf.

The Sher­iff’s Of­fice pol­icy dic­tates that em­ploy­ees at the Hold­ing Cen­ter and Cor­rec­tional Fa­cil­ity in Alden go through an­nual re­fresher train­ing on the use of spit masks and other re­straints. So why do the jail deputies who han­dled Met­calf say they knew lit­tle about the masks?

The sher­iff and his top staff refuse to com­ment on mat­ters en­veloped by pend­ing lit­i­ga­tion. But one jail man­age­ment vet­eran, who asked to be uniden­ti­fied be­cause he was not in­volved in the Met­calf mat­ter, said spit masks come up in the re­fresher train­ing dur­ing a se­quence about re­straint chairs. The masks were dis­cussed but rarely brought out and dis­played, both be­fore and af­ter Met­calf was killed, he said.

The Com­mis­sion of Cor­rec­tion said not only was Met­calf’s spit mask ap­plied fa­tally, it never should have been used. The man­u­fac­turer’s in­struc­tions say the masks are not to be placed on in­mates bleed­ing from the mouth be­cause the blood can back up into their air­ways.

De­po­si­tions sealed

The lawyers de­fend­ing Erie County in the law­suit long re­sisted the re­quest to ques­tion the sher­iff in a for­mal de­po­si­tion. The plain­tiff’s lawyers wanted to ask about the train­ing Howard gives deputies and his gen­eral ad­min­is­tra­tive over­sight. The county lawyers re­buffed the at­tempt by say­ing they had pro­duced plenty of other deputies and em­ploy­ees for in­ter­views.

Just weeks ago, State Supreme Court Jus­tice Mark J. Grisanti ruled the sher­iff could be de­posed, but only to gather in­for­ma­tion needed to counter a county de­fense strat­egy. Grisanti then sealed Howard’s tran­script as well as the tran­scripts of two top aides, Un­der­sh­er­iff Mark N. Wip­per­man and Jail Man­age­ment Su­per­in­ten­dent Thomas Di­ina.

Nei­ther Grisanti nor his clerk will say why the judge sealed the ma­te­ri­als. But a lawyer for the county, Jen­nifer C. Per­sico of the Lippes Mathias Wexler firm, said Grisanti was fol­low­ing the pro­to­col of seal­ing civil trial de­po­si­tions when a crim­i­nal in­ves­ti­ga­tion is un­der­way.

The plain­tiff’s lawyers, with the Brown Chiari firm, sub­mit­ted a writ­ten re­quest Thurs­day to un­seal the doc­u­ments. The lawyers want to re­fer to the tes­ti­mony in com­ing court pa­pers. They say there is no crim­i­nal jus­tice rea­son to seal it.

A crim­i­nal probe?

The Erie County Dis­trict At­tor­ney’s Of­fice, un­der Frank A. Sedita III and then Michael J. Fla­herty Jr., never placed charges or asked a grand jury to hear the mat­ter. But the Com­mis­sion of Cor­rec­tion, af­ter con­clud­ing last year that Met­calf was stran­gled and did not die of a heart at­tack, as a med­i­cal ex­am­iner de­ter­mined, urged the Dis­trict At­tor­ney’s Of­fice to re­view the case again.

Early this year, in­com­ing Dis­trict At­tor­ney John J. Flynn Jr. re­al­ized he had a con­flict in ex­am­in­ing the case be­cause his of­fice em­ploys the wife of another prom­i­nent fig­ure in the Met­calf mat­ter, Hold­ing Cen­ter Sgt. Robert Dee. (Dee su­per­vised the use of force on Met­calf, and the com­mis­sion as­serted he should have been dis­ci­plined, too.)

Be­cause of the con­flict, a judge in Fe­bru­ary asked a nearby dis­trict at­tor­ney, Cat­ta­rau­gus County’s Lori Pet­tit Rie­man, to re­view the facts and bring charges if she sees fit. In June, Rie­man said she was near­ing the end of her re­view and would an­nounce what she might do. Seven months af­ter be­ing ap­pointed, she has given no sign that she will charge any­one. Rie­man did not re­spond to a tele­phone mes­sage for this ar­ti­cle.

Nov. 28, 2012

Depew po­lice brought Met­calf to the Hold­ing Cen­ter af­ter charg­ing him with break­ing into a restau­rant on a cold night to cool down in its re­frig­er­a­tor. While in the Depew lockup, he smeared fe­ces on him­self. His bizarre be­hav­ior con­tin­ued dur­ing the in­take process. By the next night, Nov. 28, 2012, he was out of con­trol, ac­cord­ing to sev­eral peo­ple in­ter­viewed by state au­thor­i­ties.

Met­calf raked his arms with a plas­tic fork and hit his face on the walls and bars of his cell. As he shouted “ra­dioac­tive” and “slaughterhouse,” a team formed to hus­tle him to the in­fir­mary. Once there, they set about cov­er­ing his face to pre­vent him from spit­ting blood and to al­low nurses to ex­am­ine him.

Cross yelled to Deputy Christo­pher Enser, who was sta­tioned near the in­fir­mary, to bring him a spit mask, Enser tes­ti­fied. Enser, who had been a jail deputy for about four years, said when de­posed that he was not fa­mil­iar with spit masks and did not know where they were stored. But as Enser turned to get one, some­one – he could not re­mem­ber who – handed him a spit mask. He then gave it to Cross, Enser tes­ti­fied.

Cross, ac­cord­ing to court pa­pers and his own re­ports, placed the mask on Met­calf. But he says he never asked for one. Some­one just handed him a mask, and he placed it loosely around the in­mate’s face, he said.

“What did you do with the strings?” a lawyer asked Cross.

“I don’t re­call,” Cross an­swered. “I just re­mem­ber try­ing to hold it in place.”

“Did you tie the strings around his neck?” “I don’t re­call do­ing that.” “Would that have been ap­pro­pri­ate?”

Said Cross: “I wasn’t trained on how to use that.”

“You didn’t re­ally have any idea how to use it, did you?”

“No, sir.”


While Cross does not ad­mit ty­ing the strings of the mask, Enser sug­gested oth­er­wise.

Once Cross had the mask around Met­calf’s face, the sergeant asked Enser to place his fin­gers on the still-loose strings, Enser said.

The lawyer quizzing Enser, Ti­mothy Hud­son of Brown Chiari, took that as a sign Cross was about to tie the mask in place and needed a third hand to sta­bi­lize the strings.

“Sergeant Cross asked you to place your fin­gers there?” Hud­son asked.

“Yes, sir,” said Enser, who is not a de­fen­dant in the law­suit.

“What was he do­ing while you placed your fin­gers on the strings of the spit mask?” “I don’t re­call,” said Enser. “Was he ty­ing – was he ty­ing the spit mask?” “I don’t re­call.” “... All right. Well, af­ter you re­moved your fin­gers, what hap­pened to the strings?” “I don’t re­call,” Enser said again. “Were they loose?” Hud­son pressed. “Were they who?” “Were they loose?” “My fin­gers?” “No, the strings. The strings.” “Oh,” Enser said. “I don’t re­call.”

No vi­tal signs

Met­calf re­port­edly chewed through the mask’s fab­ric. That’s when some­one re­trieved a pil­low case to place over his head. The team then waited for an am­bu­lance crew to shut­tle Met­calf to Erie County Med­i­cal Cen­ter for a psy­chi­atric eval­u­a­tion.

The two Ru­ral/Metro medics later told state in­ves­ti­ga­tors that deputies pre­vented them from ex­am­in­ing the pa­tient un­til he had been wheeled out of the Hold­ing Cen­ter and lifted into the am­bu­lance. Cru­cial min­utes elapsed as the pro­ces­sion of deputies moved Met­calf from the in­fir­mary down a hall­way to an el­e­va­tor, then to the ground floor, through another el­e­va­tor and fi­nally out to bay and the wait­ing am­bu­lance.

“I got in the am­bu­lance and pulled the pil­low cover off the pa­tient and saw thath­is­face­wascher­ryred,”medicRobert Moleski wrote in his in­ter­nal state­ment about the call. Then he saw some­thing wrapped around the pa­tient’s neck – the strings of the spit mask.

“It was tied pretty tight and knot­ted more than once, maybe three or four times,” Moleski said in a sec­ond state­ment, this one to the State Po­lice.

He cut the strings free and searched for vi­tal signs. He found noth­ing.

Met­calf never again showed any sign of life. With his fam­ily gath­ered at ECMC two days later, Met­calf was taken off life sup­port and soon pro­nounced dead.

Derek Gee /News file photo

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