Attorney joins Ellerbe slaying probe

"There is no excuse for shooting a 12-year-old in the back. I would like, and the family would like, to see charges result from this," he said.

He was critical of police efforts thus far, and named a raft of investigators he plans to bring into the case to determine what occurred.

"They will do the type of investigation that the police ought to do, but don't," said Fieger, of Detroit.

Ellerbe died after he was shot in the back by a state police trooper at 2:30 p.m. Dec. 24 while running from a stolen sport utility vehicle in a residential section of Uniontown. State police have placed two troopers on administrative duty while state and federal criminal probes are conducted.

Fieger once represented Dr. Jack Kevorkian in defense of several assisted suicides. He's also filed suit against rap musician Eminem over an alleged assault and the "Jenny Jones Show" over the murder of a talk show guest.

Yesterday, he offered biting assessments of the ongoing investigation into the Ellerbe shooting and said he does not believe an explanation police have advanced to the family about how the shooting occurred.

Authorities reportedly told the family that one officer slipped and fell, discharging a weapon accidentally, and the other shot Ellerbe.

"It sounds like somebody, upon reflection, tried to make up an explanation. I'd suggest that they try harder. My 17-month-old son could come up with a better explanation than that.

"When you come up with phony excuses like that — that sounds like the start of a cover-up," he said.

He also said he suspects state police investigators are threatening possible witnesses in the shooting.

"Our limited investigation to this point indicates that many more children were involved, and that they may be threatening these children with felony murder charges if they don't do ‘the right thing’ and exonerate these officers.

"If it didn't happen here (with these children), it would be the first time in my experience that it did not happen. I believe implicit, if not explicit, threats are going on.

"Do police officers do that? All the time. The conspiracy of silence — the thin blue line — are endemic in this country," he said.

Fieger refused to say how much he would seek in damages in his promised federal civil rights lawsuit. He asserted that the action was more serious than what's alleged in suits against tobacco companies that secured multimillion-dollar verdicts.

"What is more serious than the killing of a child? Police who intentionally shoot 12-year-olds in the back. ... I believe the jury will assess a heavy penalty if they are, in fact, found liable," he said.

Pittsburgh attorney Joel Sansone still represents the Ellerbe family. He attended the news conference with Ellerbe's father, Michael Hickenbottom, and his stepmother, Rene Randolph.

Fieger said it was meaningful that the meeting with Ellerbe's family took place on Martin Luther King Jr. Day.

"I think these are the type of things that Dr. King railed against and spoke out against," he said.

Sansone previously raised the possibility that the shooting was racially motivated because the state trooper who allegedly fired the fatal shot was white and Ellerbe was black.

But Fieger said, looking forward, he is concerned that Ellerbe's family receive impartial treatment, as it would if Ellerbe had been white.

"I don't think there is any question if this was a white child who died, charges would be brought," he said.

Judge refuses to halt lawsuit in boy's death
March 16, 2004

By Robert Baird
TRIBUNE-REVIEW

A judge refused Monday to dismiss portions of a federal lawsuit filed against Pennsylvania State Police in the Christmas Eve 2002 shooting death of 12-year-old Michael Ellerbe, of Uniontown.

Kemal Alexander Mericli, senior deputy attorney general who argued on behalf of the state, contended state police enjoy sovereign immunity from tort lawsuits and that Trooper Juan Curry should not face civil rights charges because he had no way of knowing that his partner, Trooper Samuel Nassan, was going to shoot at Ellerbe.

Ellerbe was shot in the back in a Uniontown neighborhood after police pursued the stolen Ford Bronco he was in. The bullet pierced a group of large arteries near his heart. A Fayette County coroner's jury found after an inquest that Nassan and Curry were justified in the shooting because they had called for Ellerbe to stop, and he didn't obey.

Curry said he accidentally fired his gun while climbing a fence, then fell. Hearing the shot and seeing his partner fall, Nassan believed Ellerbe had shot Curry, so he shot Ellerbe. The boy was unarmed.

Both Curry and Nassan were based at the Uniontown barracks at the time of the shooting.

Arguing before U.S. District Judge Joy Flowers Conti, attorney Geoffrey Fieger -- one-time counsel for Dr. Jack Kevorkian -- claimed the positions taken by Mericli were "not right," "manifestly untrue" or presenting facts not in evidence.

Conti denied the motion to dismiss involving Curry, but said the matter could be raised again in a motion for summary judgment.

The civil rights and wrongful death lawsuit was filed by the victim's father, Michael Hickenbottom, of Uniontown, who wasn't present in court.

Attorneys for the family claim the troopers attempted to deprive Ellerbe and his estate of its rights through a conspiracy that included intimidating witnesses, concocting the story about the misfired gun and tainting evidence.

Fieger said the cover-up and conspiracy "can continue up to today and up to the time of trial."

Mericli said the defense has agreed that Nassan fired the fatal shot, but Fieger said that was "manifestly untrue."

Fieger and Pittsburgh co-counsel Joel Sansone contend both officers fired at Ellerbe, who had a second wound in his body that may have come from Curry's gun.

After the hearing, Fieger said, "There's been a general assumption based on the testimony of (Allegheny County Coroner) Cyril Wecht, and the claims by the police office for the state, that it was Nassan's (gun) that fired the fatal bullet."

"We know that there's a second bullet wound in Michael Ellerbe's arm," he said. "It may turn out that Curry fired the fatal shot. Nobody knows."

Mericli said, "We believe we received a fair consideration of our positions, and we're eager to proceed with a vigorous defense of our clients."

Margaret Philbin, spokeswoman for U.S. Attorney Mary Beth Buchanan, said all available information is being reviewed in a federal civil rights investigation into Ellerbe's shooting, and it is expected to be concluded in several weeks.