BY TONY FARINA
Citing a conflict because an assistant in his office is related to a potential target of the investigation, Erie County District Attorney John Flynn has asked a judge to appoint a special prosecutor to investigate the death of Richard Metcalf, an inmate at the county Holding Center in 2012, in a case that has been labeled a homicide by the State Commission of Corrections.
“I filed a motion this week with State Supreme Court Justice Christopher Burns to have a special prosecutor appointed,” said Flynn. The newly elected district attorney said a decision is expected from the court by Feb. 6.
If he agrees that a special prosecutor is needed, Judge Burns could select an attorney from Erie County or another county to take over the investigation of the 35-year-old inmate’s death that attracted much attention during the race for district attorney last year.
One source told Artvoice that if Judge Burns agrees to appoint a special prosecutor, the Niagara County DA, Caroline Wojyaszek is likely to be named.
Flynn said during the hotly contested campaign, first with interim DA Mike Flaherty in the Democratic primary and later against GOP candidate Joe Treanor, that he would investigate Metcalf’s death on Nov. 30, 2012 at the Erie County Medical Center which initially had been ruled the result of a heart attack.
Flynn said in a telephone interview this week that he found the conflict existed after he was sworn into office and he has decided to seek a special prosecutor to investigate Metcalf’s death.
The State Commission of Corrections issued a report last October that the inmate’s death “was a homicide caused by the restraint methods” used by deputies.
The state agency’s Medical Review Board wrote in its final report that the “restraint episode, pictures of a spit mask tied in ligature fashion around Metcalf’s neck, a pillow case over Metcalf’s head, blood in Metcalf’s airways, and the transport of Metcalf in a prone position on the ambulance gurney are evidence of the classic elements of a death that was caused directly by traumatic asphyxia with the compression of the torso and neck,” rejecting the initial heart attack conclusion by county medical examiners that was expanded later to include homicide attributable to three possible causes including multiple blunt force injuries. The state report said Metcalf had no history of heart problems.
The state urged the district attorney’s office to take notice of the Review Board’s findings and initiate a criminal investigation. Now Flynn wants a special prosecutor named to conduct that investigation because of the relationship between a member of the disrict attorney’s staff and a potential target of the investigation.
Meanwhile, a wrongful death suit civil has been filed by Metcalf’s family againsts Erie County, the sheriff’s department, and several deputies, but a trial is not likely in the near future, according to one of the family’s attorneys, Tom Casey, and may not make it to trial until the fall.
While no monetary damages have been specified in the lawsuit, Casey said there is more involved than just the money.
“It may actually do something good,” said the veteran attorney who is working with the Brown Chiari law firm in the case. “The voices of the community need to be heard,” said Casey, suggesting the numerous jail deaths over the years at the Holding Center are a symptom of something terribly wrong.
Metcalf was hospitalized, according to the Medical Review Board, after a “prolonged use of force and an improper restraint” by deputies at the Holding Center, a facility that has come under attack over the years from state and federal regulators for its high suicide rate and conditions of confinement.
Metalf was originally arrested by Depew police on burglary charges on Nov. 27, 2012, before being brought to the Holding Center. Three days later he was dead.