Federal jury awards Uniontown boy's family $28 million

Tuesday, March 11, 2008

By Jerome L. Sherman, Pittsburgh Post-Gazette

A jury in federal court today said two Pennsylvania state police troopers intentionally shot 12-year-old Michael Ellerbe in Uniontown in December 2002 and awarded more than $28 million in damages.

Michael Hickenbottom, the boy's father, sued Trooper Samuel Nassan and Cpl. Juan Curry shortly after the shooting, citing a violation of his son's constitutional rights.

The jury ruled that the troopers intentionally shot the boy and "maliciously violated" his Constitutional rights.

The award included $12 millon in punitive damages from each trooper, plus an additional amount of more than $4 million.

The troopers were chasing Michael as he ran from a stolen Ford Bronco on Christmas Eve. Trooper Nassan testified that he fired at Michael because he heard a gunshot and thought the boy had shot at his partner. Cpl. Curry said his gun went off accidentally as he scaled a fence.

In its verdict, the jury disagreed with that version of events and accepted the family's contention that the boy was shot by each trooper.

Mr. Hickenbottom was represented by Geoffrey Fieger, a prominent Michigan attorney who has won dozens of multi-million dollar jury awards.

Andrew K. Fletcher, the led attorney for the troopers, said an appeal was likely, but he declined to discuss the details. "This obviously is an enormously disappointing verdict that, in our view, is not at all supported by the evidence," said Mr. Fletcher.

He spoke on the steps of the federal courthouse, surrounded by a phalanx of cameras and reporters. The two troopers, both stone-faced, stood directly behind him.

Mr. Hickenbottom was crying as he exited the courtroom, and he held his hands together as if he were praying.

He and his lawyer plan to hold a press conference this afternoon.

More details in tomorrow's Pittsburgh Post-Gazette.

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02/20/2008

Jury seated in Ellerbe civil trial
By Jennifer Harr The Herald Standard

PITTSBURGH - A jury of six women and four men was seated Tuesday to hear the civil case brought against two state policemen involved in the shooting death of a 12-year-old Uniontown boy. The panel will hear opening remarks today and begin hearing witness testimony at the federal courthouse in Pittsburgh in the lawsuit brought by Michael Hickenbottom of Uniontown against Trooper Samuel Nassan and Cpl. Juan Curry.

Hickenbottom brought the suit after the Dec. 24, 2002, death of his son, Michael Ellerbe. Nassan shot the boy in Uniontown's East End section after the child alleged fled from a stolen sport utility vehicle he had crashed. Ellerbe had his hands in his pockets, according to prior testimony, and police were concerned he had a weapon.

When Curry vaulted a fence to continue chasing Ellerbe, Curry had his gun drawn. The weapon caught on the fence and discharged. Believing Ellerbe shot Curry, Nassan shot and killed him.

A coroner's jury, county, state and federal prosecutors examined the case and all cleared the troopers of any wrongdoing.

However, Hickenbottom's attorney, Geoffrey Fieger of Michigan, has alleged in court filings that more than one shot was fired at Ellerbe, and that police are covering up the truth of what happened that day. Pittsburgh attorney Joel Sansone, who also is representing Hickenbottom, alleged in a filing last week that Ellerbe might not have been the driver of the vehicle.

The case before U.S. District Judge Joy Flowers Conti is expected to last through next week.

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02/21/2008

Jurors hear opening arguments in Ellerbe case
By Jennifer Harr The Herald Standard

In his opening remarks to a federal civil jury on Wednesday, the attorney for the father of a fleeing 12-year-old boy shot by state police claimed the troopers involved offered a "mind-boggling" and "ludicrous" version of events. But Andrew K. Fletcher, attorney for Trooper Samuel Nassan and Cpl. Juan Curry, characterized the events leading up to Michael Ellerbe's Dec. 24, 2002, death with different adjectives: "rapid, tense, unpredictable, defiant."

Through the course of the trail, held in federal court in Pittsburgh, jurors will have to determine what better describes the day's events. That will determine if Ellerbe's father, Michael Hickenbottom, will win a jury verdict in the excessive force lawsuit he brought against the troopers.

Jurors heard openings from both sides Wednesday morning, and will continue hearing testimony for the next two weeks. Attorney Geoffrey Fieger, who represents Hickenbottom, told jurors that their decision would be easy, alleging that the troopers changed their stories, and claiming that witnesses saw more than one person in the stolen vehicle police said Ellerbe was driving before he fled.

But before the Wednesday afternoon recess, jurors heard the tape of Nassan, who shot Ellerbe in Uniontown's East End after Curry's gun accidentally discharged, calling into the barracks for help.

"Call an ambulance, I shot him. Get an ambulance here quick," Nasaan, his voice wavering, is heard telling a dispatcher.

Police have said Curry's gun caught on a fence he was trying to get over while chasing Ellerbe, but Hickenbottom's attorneys have said they do not believe that claim.

"They are not permitted to shoot a child in the back who is running away from them," Fieger said.

Fieger said former state police Sgt. James Baranowski would testify that he felt something was amiss with the version of events recounted by Nassan and Curry. Baranowski has a separate, wrongful termination lawsuit filed against state police, claiming that he was forced to retire after he voiced concerns that something was wrong with the investigation surrounding Ellerbe's death. Police attorneys have countered that he had several infractions in the final years of his employment.

"This isn't an outrageous case. It's a heartbreaking case," Fletcher said.

Citing police procedures, Fletcher said Ellerbe was a fleeing felon whom Nassan believed had shot his partner - but said that the shooting did not occur simply because Ellerbe had his hands in his pocket.

Fletcher argued that Nassan shot Ellerbe because "he believed that the suspect (Ellerbe) had shot Curry."

He asked jurors to consider the perspective of the police involved.

As Curry tried to get over the fence to continue chasing Ellerbe, Fletcher said his pants got caught on the fence and his gun got caught as well, firing.

Believing Curry had been shot as he slid down the side of the fence, Fletcher argued that Nassan took steps to stop the action. Since the shooting, Fletcher said neither police officer changed his story.

"Sam Nassan does not - and never has - denied he shot Michael Ellerbe. It was an awful day for him, but he's never shied away from it. He's never changed his story," Fletcher said.

Shouting, he illustrated how Nassan and Curry yelled at Ellerbe to stop, and said when Nassan heard the shot, and believed his partner had been shot - took action to stop Ellerbe.

Between the stop of the truck the defense alleges Ellerbe was driving, and the shooting, Fletcher said it took about 90 seconds.

"This is real life," Fletcher said. "(Nassan) believed he was sure that the suspect shot his partner."

Melvin Duley, 15, of Uniontown told jurors that he watched the chase from the window of his Cleveland Avenue home.

Duley testified that he never saw Ellerbe put his hands in his pocket, but several other portions of his testimony were in conflict with prior statements he gave to police and other investigators associated with the case.

Under cross-examination, Duley indicated he never saw either trooper pull out a weapon, and indicated that he never watched either Curry or Nassan fire.

However, in his deposition for the case, Duley testified that he watched curry hop the fence and pull his gun out before firing three shots at Ellerbe.

Duley said that he and his family formerly had a sign in their house window critical of the Uniontown Police Department, but under questioning, his mother Elsie Cornish testified that the UPD sign in her window could have been representative of anything - including a religious organization.

Angela Lee, 35, of Uniontown testified that the stolen Bronco and the police car stopped outside her home. She said that it appeared that both Curry and Nassan got out of the police car, and had their guns drawn.

After the pursuit stared, she testified she heard one gun shot, followed several second later by two more back-to-back shots.

The trial will resume Friday before U.S. District Judge Joy Flowers Conti.

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02/22/2008

Wecht to testify at Ellerbe civil trial
By Jennifer Harr The Herald Standard

When the federal civil rights trial in the death of a Uniontown boy picks up today, jurors are expected to hear from noted forensic pathologist Dr. Cyril H. Wecht.

Wecht's testimony - offered on behalf of the troopers being sued by Michael Ellerbe's father - will constitute a break in his own trial.

Two floors above U.S. District Judge Joy Flowers Conti's courtroom in the federal courthouse in Pittsburgh, Wecht, 76, of Squirrel Hill, is on trial for allegedly using his public office for private gain. Wecht is the former coroner for Allegheny County and runs a private forensic consultation business.

Wecht, who is charged with 41 counts of fraud and theft, also is accused of defrauding clients of his private consulting business.

His part in the Ellerbe case, however, predates the criminal charges filed against him in 2006.

Following Ellerbe's death on Dec. 24, 2002, Fayette County Coroner Dr. Phillip E. Reilly sent the 12-year-old's body to Wecht for autopsy. Wecht performs autopsies on Fayette County cases at Reilly's request, and has for many years.

At a 2003 inquest into Ellerbe's death, Wecht said that the boy was shot in the back and punctured his heart before existing his chest. He also is expected to testify about a wound to Ellerbe's arm.

Attorneys for Michael Hickenbottom, Ellerbe's father, have said that the wound to Ellerbe's arm was indicative of more than one shot being fired at him by Trooper Samuel Nassan or Cpl. Juan Curry.

Andrew K. Fletcher, representing Nassan and Curry, said earlier this week that only one shot was fired at Ellerbe. Nassan fired that shot, and Fletcher maintained that he did so only because he believed Ellerbe shot Curry.

Police found Ellerbe in a stolen vehicle, and he fled from them on foot.

Less than 90 seconds later, Fletcher said that Curry's gun snagged on a fence and accidentally fired. As Curry slid down the side of the fence, Nassan believed Curry had been shot, and shot Ellerbe.

Hickenbottom's attorney, famed civil rights attorney Geoffrey Fieger of Michigan, has maintained that police had no right to shoot Ellerbe. He alleged their version of events has changed, and was contrived.

Today will mark the second full day of testimony.

On Wednesday, representatives from WPXI-TV in Pittsburgh filed a motion to intervene, asking for access to the audiotape played during Fletcher's opening remarks.

Channel 11 reporter Alan Jennings asked for a copy of the tape during a break in the trial. His request was not denied, although he was told that the clerk was too busy to do it at that point.

The motion was resolved when the court provided a copy of the tape Wednesday evening. Portions were aired on the station's 11 p.m. newscast.

The 10-second clip of the tape consists of Nassan calling into the barracks to ask for an ambulance after he shot Ellerbe.

"Call an ambulance. I shot him. Get an ambulance quick," he said in the tape.