By Aaron Besecker
The Buffalo News, N.Y.
BUFFALO, N.Y. — Nearly three months after the 2012 death of an Erie County Holding Center inmate, jail Deputy Robert States wrote two reports about what happened during the removal of the inmate from his cell and how deputies restrained him.
The reports, both written the same day and one longer than the other, included additional details that weren’t in States’ prior reports.
They came about a month before the county Medical Examiner’s Office ruled Richard Metcalf Jr .'s death was a homicide.
Details included in the two reports States wrote on March 15, 2013, contradicted the version of events described to the jury in the prior testimony of two emergency medical technicians who responded to the center on Nov. 28, 2012.
The things States wrote in his reports and when those reports were written made up a significant part of his testimony last week in the civil trial over Metcalf’s death.
The state Commission of Correction has ruled Metcalf’s death was caused by jail deputies who improperly restrained him and asphyxiated him after tying a “spit mask” around his neck and putting a pillowcase over his head. Metcalf’s father is accusing the county and five current and former deputies of excessive force, negligence and deprivation of medical care.
States was the first of the deputies to take the stand in the trial, which began with opening statements Feb. 5 , and had been initially expected to last about five weeks.
States said he began working as a jail deputy in 2008, and stopped working at the Holding Center in 2016. He now works as a Buffalo police detective.
His first reports about his interactions with Metcalf were written Nov. 27 and Nov. 28, 2012 . He also gave a statement to investigators with the Sheriff’s Office on Dec. 5, 2012 , five days after Metcalf died in Erie County Medical Center.
Citing his March 2013 reports, States testified that it was the EMTs — not jail staff — who decided to keep Metcalf face down on a gurney during transport, and that the EMTs were told a spit mask had been placed on Metcalf, 35, who had been spitting blood.
States told the jury that he asked one of the EMTs if he wanted him to change Metcalf’s position so his hands would be cuffed in front of his body.
The EMT said the deputies should leave him “as is,” and they would put a new spit mask on Metcalf in the ambulance.
States, who testified over more than 4 1/2 hours on Thursday and Friday, said he did not include any of that information in his earlier reports.
In earlier testimony, the EMTs said they were unaware of the spit mask until they pulled the pillow case off of Metcalf’s head in the back of the ambulance.
They also told jurors they felt intimidated by deputies in the Holding Center and were not allowed to assess Metcalf until they brought him back to their ambulance. One described the situation in a jail medical room as “awkward.”
“It was a heavy situation,” Robert Moleski said. “You could feel that there was something wrong, but you didn’t know exactly what it was.”
Michael Scinta, one of the plaintiff’s attorneys, asked States how these new reports came to be written.
States said he must have been directed to write them by a superior, which is how such reporting usually works.
He said he was asked for “more detail” about what happened.
States said he doesn’t know who directed him to write the reports.
He said he didn’t recall if there had been any talk around the jail that the medical examiner was considering ruling Metcalf’s death a homicide around the time of his March reports.
Other discrepancies with States’ versions of events arose during his testimony:
—In his first report from March 15, 2013, States reported Metcalf was kicking his feet and yelling during his transport to the ambulance. Jail security video shows Metcalf was still during the transport.
—In an interview with the state Commission of Correction, video of which was shown to the jury, States told investigators a female EMT simply pulled the spit mask off Metcalf in the ambulance. Photos of the spit mask show the straps were cut, which is what an EMT said he had to do because it was tied so tightly around Metcalf’s neck.
In his second March 15, 2013, report, States said he was in the ambulance after Metcalf was loaded inside and it was he who suggested to the EMTs they check on Metcalf, who was still restrained with handcuffs and items over his head. In their testimony, the EMTs described immediately assessing Metcalf once he was in the ambulance.
‘The shower incident’
Metcalf arrived at the Holding Center around 3:30 p.m. Nov. 27, 2012, near the start of States’ shift in the jail’s intake area.
Depew police arrested Metcalf during a burglary early that morning. After a trip to ECMC to be evaluated after being stunned with a Taser, Depew police brought him to the Holding Center smelling of feces.
A sergeant directed States and another deputy to take Metcalf to the shower before completing a thorough search.
The plaintiff’s attorneys have come to refer to that period as “the shower incident.”
On the way to the shower, Metcalf kept trying to pull away from them, States told the jury.
During the first week of the trial, a Depew police detective who transported Metcalf to the Holding Center testified he was told by a deputy at the jail, “That guy freaked out on us in the shower and we had to take him down.”
On the stand, States initially testified there was no takedown of Metcalf in the shower. He also made no mention of such an event during his pretrial deposition.
But in a statement he gave to the State Police in May 2013 for their investigation into Metcalf’s death, States told the investigator he “brought him to the ground and secured him again,” Scinta said during his questioning of States.
“I still don’t recall taking him to the ground,” States told the jury. “If I wrote it then, I would go with it.”
States said he didn’t file a use of force report for what happened in the shower.
“Simply taking someone down to secure them wouldn’t warrant that,” he said.
Filing a use of force report isn’t always required, States said. Even if an injury occurs, such a report is not required, he said.
“Different circumstances warrant having these done or not,” he said.
The only thing that is required is for deputies to inform their supervisors, he said.
Both States and his partner filed use of force reports later that night, when Metcalf returned from a visit to ECMC that followed an evaluation by medical staff at the jail.
When States and his partner were escorting Metcalf to his cell, he became “resistant.” States’ partner’s report said Metcalf “veered” in a different direction than the deputies were attempting to escort him.
Metcalf was “pulling away,” and States’ partner was injured, he said.
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