Former Pa. police sergeant says he questioned probe
PITTSBURGH – A former state police sergeant testified Tuesday that he believed there were several problems with the investigation into the death of a 12-year-old Uniontown boy shot by a state police trooper on Christmas Eve 2002.
Michael Ellerbe got out of a stolen Ford Bronco in Uniontown’s East End and fled from Cpl. Juan Curry and Trooper Samuel Nassan, who tried to stop the vehicle after realizing it was stolen. Nassan shot Ellerbe after a brief foot chase because Curry’s gun discharged accidentally and Nassan believed Curry had been shot, according to Andrew K. Fletcher, who is representing the police in a civil suit filed by Ellerbe’s father, Michael Hickenbottom of Uniontown. This is the second week of the trial in federal court in Pittsburgh.
James Baranowski of Chalk Hill testified that he expected to see shell casings in different places, damage to a fence where Curry said his service weapon discharged, and he criticized other ways the investigation was handled.
“In the beginning, I was the most ardent supporter of the troopers, and I wanted to protect them. I had that thought pattern in place. A lot of my concerns were allayed. I put them on the back burner,” Baranowski testified. He said he changed his feelings about the case as the investigation continued.
Baranowski, who retired from police service in July 2003, said he brought concerns to two superiors in the state police organization but was waved off.
However, in a report submitted on Dec. 27, 2002, Baranowski did not indicate any of his concerns. Nor did he voice those concerns during a separate probe conducted by the FBI or in a taped interview given to the internal affairs bureau of the state police. Those interviews were conducted within months of the shooting, he said.
In a tape played in court, an internal affairs corporal is heard asking Baranowski if he has anything else to say about the shooting.
“It’s a tragic incident, and the scene we did what we could to contain and take care of it,” he is heard saying. “I think we did all we could to keep it straight and above board.”
But during additional questioning from Hickenbottom’s attorney, Geoffrey Fieger, Baranowski testified that he was never asked for his opinion and said there was an unwritten rule that, “You’re taught and trained to take care of your own problems.”
Baranowski testified that violating that rule could bring about “pretty brutal” consequences from the higher-ups in the state police agency.
Baranowski testified that as the ranking officer at the barracks that day, he became the incident commander for the shooting. In that role, he organized what was going on, assessed the scene and waited for other ranking officers to arrive and take over.
He said his involvement in the case ended when he turned the scene over to another supervisor, and Baranowski was not asked to investigate any further.
When he arrived, Baranowski testified that he first saw Nassan, who was near Ellerbe’s body.
“He was highly emotional, very agitated, and his voice was breaking. He was visibly upset,” Baranowski testified. “He said, ‘Sarge, I shot him. He’s just a kid.’ I said, ‘Calm down, it’ll be OK.’ He said, ‘You don’t understand, he was just a kid.'”
Curry’s attitude was in sharp contrast, Baranowski said.
When Curry approached and said his gun had accidentally discharged, Baranowski testified that he was “taken aback” by the trooper’s demeanor.
“I was … shocked because he was very calm, very collected. I did not recognize him as being involved (in the shooting) from his physical demeanor,” he said.
Baranowski testified that Nassan had started as a trooper a few months before this shooting, and that Curry had been a veteran of the state police force.
And while he described Nassan’s demeanor in a tape-recorded internal affairs interview played during the trial, Baranowski did not mention anything about Curry’s alleged demeanor.
After the Ellerbe suit was filed, Baranowski filed suit against the state, claiming he was forced to retire because he brought up concerns about the statements given by Nassan and Curry regarding the Ellerbe shooting. He is represented by attorney Tim O’Brien, and that case is currently in summary judgment, meaning a magistrate judge is evaluating the merits of the case because state attorneys have asked that it be dismissed. State attorneys have contended that Baranowski had numerous write-ups during his career, specifically toward the end of his career.
Jurors also heard from Kenneth Katsaris, a use-of-force expert who trains police. Katsaris indicated that in his opinion, the shooting was not justified.
Ellerbe was fleeing from a stolen Ford Bronco that Curry and Nassan were trying to stop. The policemen, unintentional partners that day, had been returning from a call at the Uniontown Mall, when a notice of the stolen vehicle was broadcast over their police radio. When they saw it, the men attempted to make a traffic stop, but the driver fled. While some testimony has indicated Ellerbe appeared to be the driver, others have testified that another boy was driving the vehicle.
The Bronco crashed, and Ellerbe fled, leading Curry and Nassan on a brief foot chase through Uniontown’s East End. Curry, his gun drawn, hopped a fence at a Cleveland Avenue home.
The two sides differ greatly on what happened next.
Police say that the trigger guard of Curry’s gun got stuck on the top of the fence, forcing the weapon to fire. His pants also snagged on the fence, according to Fletcher, and Curry slid down the side of the fence. The combination of his gun discharging and Curry sliding down the side of the fence led Nassan to believe Curry had been shot.
Believing Ellerbe, whom police say was refusing commands to take his hands from his pockets and looking back as he fled, had shot Curry, Nassan shot him. The bullet went into Ellerbe’s back, and came out the left front of his chest.
But attorneys representing Ellerbe’s father discount the police version of events.
Fieger contended that police violated Ellerbe’s constitutional rights when he was shot in the back. He has presented witnesses who say they heard three gunshots following the chase, and a forensic pathologist who testified this week that the placement of a wound to Ellerbe’s left bicep is evidence that he was shot twice.
Dr. Werner Spitz’s testimony differs from that of defense expert Dr. Cyril H. Wecht, who testified last week that the wound to Ellerbe’s bicep lines up with the exit wound of the bullet from his chest.
Testimony will resume this morning in Pittsburgh before U.S. District Judge Joy Flowers Conti.