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Trooper "acted in a reasonable manner"

Tuesday, January 28, 2003

By Jonathan D. Silver and Cindi Lash, Post-Gazette Staff Writers

After deliberating 55 minutes, a Fayette County coroner’s jury last night decided unanimously that a Pennsylvania state trooper was justified in drawing his weapon and fatally shooting a 12-year-old boy who was fleeing from a stolen vehicle.

	State troopers Samuel Nassan, left, and Juan Curry at the coroner's inquest yesterday in Uniontown. (KDKA-TV) Related story: Slain boy supported outside, inside Fayette County Courthouse

The six-member jury, in an advisory finding, said Trooper Samuel Nassan and his partner, Juan Curry, “acted in a reasonable manner based on their training and Pennsylvania state law” in the Christmas Eve confrontation that left Michael Ellerbe of Uniontown dead.

Jurors heard the troopers’ first public accounting of the incident, including Nassan’s assertion that he shot Ellerbe after thinking -- erroneously -- that Ellerbe had shot his partner.

The jury’s finding will be forwarded to Fayette County District Attorney Nancy Vernon, who will make the final decision whether to prosecute the officers.

The jury’s decision and the conduct of the day-long coroner’s inquest that preceded it angered the Ellerbe family’s attorney, Joel Sansone. He complained repeatedly about actions by Fayette County Coroner Dr. Phillip E. Reilly.

	Deana Patterson of Uniontown, a member of People Against Police Violence, protests the shooting of 12-year-old Michael Ellerbe outside the Fayette County Courthouse. (Darrell Sapp, Post-Gazette)

“What a joke,” Sansone said outside the courtroom as the jury prepared to deliver its decision. “When you only hear one side of the story -- and it’s the touchy-feely version we heard in there -- you don’t expect anything else.”

Vernon, who sat through all of yesterday’s proceedings, said she would make her decision “shortly,” after reviewing police reports compiled after the shooting.

Curry and Nassan refused comment but received hugs from fellow troopers and other supporters who sat behind them in the courtroom.

The two took the stand yesterday afternoon, opting not to invoke their Fifth Amendment right against self-incrimination.

Nassan said he ran, gun drawn, down a residential Uniontown street at about 2:30 p.m. on Christmas Eve, chasing a figure in baggy jeans and a bulky, hooded flannel shirt. The figure, who had just jumped out of a stolen SUV, ran with an odd gait, his body swiveled sideways, and he mysteriously kept one hand in his pocket, Nassan recalled.

Nassan said he took the suspect for an older teenager. Instead, it was Ellerbe, 12 years old, 5-feet-2, 110 pounds.

The trooper said he pulled the trigger after he saw Curry, his partner, fall over a fence.

“Juan hit the fence. I heard a gunshot go off. Juan fell over the other side of the fence. I raised my service pistol and shot [Ellerbe],” Nassan testified to a hushed courtroom.

“Why did you do that?” asked Nassan’s attorney, Robert Donahoe.

“His face was pale white,” Nassan said, in a remark that drew snickers from some in the audience because Curry is African-American. “His eyes were bigger than I had ever seen them. I knew he was shot.”

Minutes earlier, Curry had told the jury and a packed courtroom that as he followed Ellerbe over a 4-foot-high chain-link fence, his pants snagged and his gun went off accidentally. He said his pistol was in his hand as he tried to vault the fence and he thought a piece of stiff wire from the top section of the fence pulled the trigger.

“I believe it was the serration of the fence,” said Curry, an eight-year veteran. “My finger was outside the trigger guard. I didn’t pull the trigger.”

	Michael Hickenbottom, Michael Ellerbe's father, talks with supporters outside the Fayette County Courthouse yesterday. (Gene J. Puskar, Associated Press)

A combative Sansone accused Reilly of leading some witnesses to testify in favor of the troopers. Sansone also criticized Reilly for not personally questioning some witnesses and not subpoenaing others and objected to having an all-white jury.

Sansone accused the coroner of “aiding and abetting a state police cover-up” that prevented jurors from hearing all pertinent witnesses and information in the case.

Sansone refused to make a closing statement to the jury, calling the day’s proceedings “a joke” and accusing Reilly and state police of skewing or withholding evidence. He refused to cross-examine the troopers and said it was ludicrous to believe a 12-year-old boy could outrun two grown men.

Sansone and Geoffrey Fieger, a Michigan trial attorney also representing Ellerbe’s family, have suggested that Ellerbe, who was black, would not have been shot had he been white. Nassan is white.

At night’s end, Sansone challenged Reilly to send jurors home without requiring them to deliberate or issue an opinion, accusing the coroner of “aiding and abetting a state police cover-up” that prevented jurors from hearing all pertinent witnesses and information in the case.

Sansone refused to make a closing statement to the jury, calling the day’s proceedings “a joke” and accusing Reilly and state police of skewing or withholding evidence.

Nassan and Curry were about to end their shift when a call came in around 2 p.m. for a fight at Uniontown Mall. Three cars were dispatched. Nassan, who had been working in an unmarked vehicle that day, decided to hitch a ride with a marked unit to make it easier for him to cut through traffic.

“It just happened to be the first trooper that came around was Juan,” Nassan said.

The two set off for the mall, with Curry driving. By the time they got there, the the situation had been resolved.

Then came another call, this one for a stolen Ford Bronco. The three state police cars split up. Curry was driving up Cleveland Avenue, on the way to Lemonwood Acres, a public housing development that is well-known as a dumping ground for stolen cars, when they almost collided with the Bronco, which was about to make a left turn from an alley right into them.

Both vehicles stopped, Nassan said. He hopped out and drew his gun.

“I did not see the hands of the suspect in the vehicle,” Nassan testified. “He made eye contact with me. We looked at each other.”

Nassan shouted orders but said the driver -- the vehicle’s only occupant -- ignored him. Instead, he moved his hand up and down as if trying to shift gears. Suddenly, Nassan said, the SUV shot backward down the narrow alley. Tires screeched. The wheels on the driver’s side popped up on a low retaining wall. The vehicle scraped along a house, throwing chunks of siding forward. As it sped back, the SUV smashed into a bush, knocked down a street sign and finally rolled over a backyard fence before it came to rest.

Curry brought the police car forward, stopping it so the two vehicles were hood to hood. Nassan said he jumped out and again drew his weapon, shouting orders. He testified that he was within two steps of safely resolving the situation, but for the fact that Ellerbe had his right hand in his pocket.

“If I could have just seen his hands, I would have taken those two steps and grabbed him right out of that vehicle,” Nassan said.

But he didn’t, and Nassan and Curry began running after Ellerbe, as the boy led the officers through an alley, around the corner to Edgemont Drive, across Cleveland Avenue, down a driveway and, finally, over the last fence Ellerbe ever climbed.

The shooting has led to allegations of a police cover-up and sparked a federal civil rights investigation.

“It wasn’t fair. It wasn’t impartial,” Clinton Anderson, president of the Fayette County chapter of the NAACP, said of yesterday’s hearing. “We’re going to talk with the family, the attorneys, and confer with our national association for their input on what to do next.”

Jonathan D. Silver can be reached at jsilver@post-gazette.com or 412-263-1962. Cindi Lash can be reached at clash@post-gazette.com or 412-263-1973.