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Troopers cleared in killing of boy

Fayette County DA calls shooting lawful

Saturday, February 01, 2003

By Jonathan D. Silver, Post-Gazette Staff Writer

For all the mourners who wept after the shooting death of Michael Ellerbe during a chase by state police, the turnout was paltry to hear Fayette County District Attorney Nancy Vernon announce that she wouldn't prosecute the troopers involved.

The Rev. Carl Farrell lashes out at the Fayette County district attorney's decision not to press charges in the shooting death of 12-year-old Michael Ellerbe, who was shot and killed by state police during a chase in Uniontown on Christmas Eve. (Steve Mellon, Post-Gazette)

Two members of the NAACP sat listening to Vernon's declaration, made yesterday afternoon at the Public Service Building down the street from the Fayette County Courthouse. Joining them were a few concerned area residents. State police officials, the local sheriff and his helpers and the media took up the rest of the space.

Perhaps the meager public showing -- a marked contrast to the packed courtroom Monday at a coroner's inquest into the 12-year-old boy's death -- could be understood by the sentiment of Charles Stokes, who took notes in a memo pad as Vernon explained how Trooper Samuel Nassan was justified in shooting Ellerbe in the back on Christmas Eve.

"It just seems this was the way it was going to go," sighed Stokes, former state president of the National Association for the Advancement of Colored People. "I was thinking all week at my job, a car -- an SUV -- is worth a kid's life. It just doesn't make sense to me."

Police have said Ellerbe was behind the wheel of a stolen sport utility vehicle around 2:30 p.m. on Dec. 24 when he was spotted by Nassan and Trooper Juan Curry. Their attempt to stop Ellerbe -- and his alleged refusal to comply -- set in motion the course of events that would lead to the boy being fatally shot through the heart.

Nassan testified that he fired at Ellerbe in response to hearing a gunshot and seeing Curry tumble over a fence he was trying to scale. Nassan said he thought Ellerbe had shot his partner. He hadn't.

Nassan also said he thought Ellerbe had a weapon because the boy -- a 5-feet-2-inch youth wearing baggy jeans with a 32-inch waist-- was running with one hand in his pocket. In fact, Ellerbe was unarmed.

"It was lawful under the circumstances," Vernon said of Nassan's actions. "Tragedies at times do occur. And although a terrible tragedy has occurred, I see no violation of the criminal statutes. Accordingly, I will not pursue criminal charges in this case."

By taking that course, Vernon followed the recommendation of a six-member coroner's jury, which ruled in favor of the troopers after deliberating for less than an hour. However, she said she would have done the same had the jury voted to file criminal charges against the troopers.

Joel Sansone, a Pittsburgh civil rights attorney representing Ellerbe's family, was unhappy with the decision. However, like Stokes, he expected it.

"[Ellerbe] had a right to live his life without being shot in the back," Sansone said following Vernon's announcement. "His parents had a right to enjoy him, and Michael Ellerbe had the right to grow up and raise children. Those rights were stolen by two police officers."

Sansone described the reaction of Ellerbe's father and stepmother, who did not attend the news conference, as "incredulous and yet resigned."

"Their attitude is this is no big surprise because poor people get screwed all the time, and this is just another time," Sansone said. "That's part of their sentiment. But part of the sentiment is as parents: They're furious."

Vernon arrived at her decision after reviewing testimony at an inquest this week, 57 interviews conducted by state police investigators and conflicting accounts given by a 10-year-old boy who claims to have seen the shooting.

Citing the state statute that deals with use of force, Vernon said Nassan and Curry were justified in unholstering their guns when they began running after Ellerbe for several reasons:

The boy was driving a stolen vehicle; his age could not be determined by the troopers; he was ignoring orders; he refused to show them his hands to prove he had no weapons; and he ran away from them.

During the inquest, two use-of-force experts backed Nassan's split-second decision to fire.

"Such action was a foreseeable response by Trooper Nassan in accordance with police protocol," Vernon said. "[Troopers] are not trained to believe troopers' guns are fired accidentally."

Vernon said it was "irrelevant" that Nassan did not see Ellerbe wielding any weapon.

"It's irrelevant that he saw or did not see Michael Ellerbe with a gun in his hand," Vernon said. "The issue here is not whether Trooper Nassan saw a weapon, but whether there was a potential for there to be a weapon in his pocket. I'm saying they can't take that chance."

Sansone criticized Vernon's decision and scoffed at the coroner's inquest, calling it a "kangaroo court."

He called "ludicrous" Vernon's contention that police followed proper procedures on use of force when Ellerbe was shot, and he said Vernon was guilty of "political cowardice" by declining to file charges against the officers.

"It's the easy way out," Sansone said. "She doesn't have to make a hard decision, and she can get re-elected."

Sansone said he believed there was more to Ellerbe's death than what was presented at the coroner's inquest, during which he declined to cross-examine the troopers and engaged in heated exchanges with Curry's attorney and the coroner.

"I don't think the truth has come out, and I don't think anyone was looking for it very hard," Sansone said.

Curry's attorney, William Manifesto, said he would have been shocked if Vernon pressed charges. He expects the same outcome to an ongoing federal civil rights investigation being conducted by the FBI, which will deliver its findings to U.S. Attorney Mary Beth Buchanan.

With this portion of the Ellerbe case closed, eyes now turn to both the FBI investigation and a planned civil rights lawsuit expected to be filed this month by Sansone and Michigan attorney Geoffrey Fieger.

"I'm happy this is leaving Fayette County because it is clear there is no fairness in the structure we have here in regards to this case," said the Rev. Louis Ridgley Jr., the Uniontown NAACP treasurer, who was present yesterday with Stokes.

As Ridgley and Stokes spoke to reporters, the voice of the Rev. Carl Farrell, a friend of the Ellerbe family, could be heard carrying down the hallway.

"He was a 12-year-old boy with his back turned. With his back turned! ... He was wearing baggy pants! A 12-year-old boy murdered. Shot in the back. They're not justifying that shooting," Farrell shouted to a flock of news cameras.

"I feel sorry for my child. I told my child if the police ever stop you, just put your hands up and ask the Lord to help you. ... I can't get over that, that two grown officers couldn't manhandle that boy."

Staff writer Mike Bucsko contributed to this report.

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

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