Attorney wants reports nixed in Ellerbe case
The attorney for two state police troopers who a federal suit was filed against in the fatal shooting of a 12-year-old boy want portions of expert reports excluded at trial. The motion asked a judge to toss out all or portions of expert reports that “invade the province of the jury” by making credibility determinations about what troopers Samuel Nassan and Juan Curry did during the chase that led to Michael Ellerbe’s death.
Attorneys for Ellerbe’s father, Michael Hickenbottom, hired the experts, who deal with police practices. In February 2003, he sued the troopers and others, identified by John Doe and Richard Roe, claiming his son’s civil rights were violated.
Ellerbe was shot to death on Dec. 24, 2002. Curry and Nassan chased Ellerbe after he ran from a stolen vehicle he was driving in Uniontown’s East End. As Curry hopped a fence to continue chasing Ellerbe, his gun accidentally discharged. Believing his partner had been shot when he heard the gun fire, Nassan fired his service weapon. The shot killed Ellerbe.
At an inquest into the youngster’s death, both troopers testified they believed Ellerbe could have had a weapon on him because he ran in a sideways fashion during the pursuit and kept reaching his hands into his pocket.
Both coroner’s jurors convened in Fayette County and federal investigators cleared Nassan and Curry of any wrongdoing.
In the first of two reports challenged by state Senior Deputy Attorney General Kemal Alexander Mericli, expert Davis Balash indicated he “cannot understand” how the troopers could have watched Ellerbe during the case and “still not notice he was a five-foot, two-inch, 112 pound, 12-year-old child.”
Mericli argued that such opinions are outside of what an expert should offer.
Balash “is in no better position by virtue of his expertise than the jury would be in considering the plausibility of the troopers’ accounts of the chase in this respect,” Mericli wrote.
Mericli claimed in the motion that Balash formulates several other opinions that are the province of a jury.
Although Balash is an expert in police practices, “this does not invest him with any greater capability than a jury to perceive the intent with which either the county coroner or the state police investigators who testified at the proceeding acted,” Mericli wrote.
Balash also stated in his report that officials at a coroner’s inquest decided to believe the troopers from the outset. Mericli wrote that Balash reached a “zenith or inappropriateness” he stated that he found accounts that Ellerbe repeatedly put his hand in his pocket and took it out “difficult to believe.”
“He then muses, without any specified knowledge of Michael’s personal history, background or personality, that it did not make sense for him to do this,” Mericli wrote.
He also was critical of expert W. Ken Katsaris’ reports because it made credibility determinations that are for a jury.
Katsaris called the inquest replete with “contradictions and implausibilities.” He also stated that Nassan couldn’t have missed Ellerbe shooting Curry during the chase if that was really what Nassan thought happened.
Chief Judge Joy Flowers Conti of the U.S. District Court in Pittsburgh has yet to rule on the motion. A March 10 date has been set to hear challenges to the reports.