Expert believes Ellerbe shot twice
PITTSBURGH – A second forensic pathologist took the stand on Thursday to testify that two bullets – not one as state police have said – struck a 12-year-old Uniontown boy on Christmas Eve 2002. Dr. Michael Baden, a forensic pathologist from New York, testified that he believed Michael Ellerbe was struck by two bullets, and that the bullets hit in different directions. The wound to Ellerbe’s back, Baden testified, went from back to front, while the wound to his left bicep was a horizontal wound.
Under cross-examination, however, Baden testified that it is “within the realm of possibility” that a scalpel or an emergency medical treatment performed on Ellerbe could have caused the bicep wound.
“Everything considered, it should be considered a possibility,” Baden testified under questioning by attorney Andrew Fletcher.
He also acknowledged that he could not see a bullet hole in Ellerbe’s jacket, but because it was cut, “it’s not possible to say one way or another” if there was a bullet hole there.
Baden’s testimony came as part of the civil suit filed against Cpl. Juan Curry and Trooper Samuel Nassan. Attorney Geoffrey Fieger of Michigan has alleged the two state policemen used excessive to stop Ellerbe as he fled from a stolen sport utility vehicle. Nassan said he shot Ellerbe after hearing a gunshot. Later, investigators said that the shot came from Curry’s weapon, which he said accidentally discharged when it got caught on a fence as he was chasing Ellerbe on foot.
While Baden maintained his belief that Ellerbe was shot twice, he did acknowledge that a picture from the scene did not appear to have the bicep wound, while an autopsy photo of Ellerbe did. Baden did say, however, that it’s possible the wound just isn’t visible in the scene photo.
Baden testified that he believes that Ellerbe could have first been hit in the back, and then in the arm by a second shot. The shot to Ellerbe’s back had to come from directly behind him, Baden testified, and the shot to his arm came from the side and hit him in the left bicep.
Under his theory, Baden testified that the shot to the back would have sent Ellerbe falling forward, making it possible to get hit in the arm.
In terms of the number of bullets that hit Ellerbe, Baden’s testimony is in line with that of Dr. Werner Spitz. Attorneys representing Ellerbe’s family called both to testify.
Dr. Cyril H. Wecht, the forensic pathologist called last week on behalf of the defense, has indicated that he believes the bicep wound could have been caused by the bullet that exited Ellerbe’s chest.
Baden testified that Ellerbe would have suffered considerable pain in the estimated two minutes before he lost consciousness. He said Ellerbe would have felt like he was drowning and been terrified.
Baden also testified that while it did not appear that there was a bullet wound in the left arm of Ellerbe’s jacket, cutting the jacket off could have altered that perception.
Jurors also heard from former state police trooper Frank Ryan of Brownsville, but before he was questioned before the panel, Ryan came under sharp questioning by Fieger about why he did not show up for a scheduled 8 a.m. meeting at Fieger’s hotel Thursday morning.
The matter came up during an in-chambers conference held Thursday morning in the chambers of U.S. District Judge Joy Flowers Conti, according to attorneys.
During that conference, Fieger alleged that defense attorneys knew, but did not disclose, that Ryan would not be coming to court.
Ryan, who now works as a state corrections officer, said that he spoke with Fieger on Monday, and agreed to appear in court without a subpoena. But when he spoke with a defense lawyer, Ryan said he told her that he decided he did not want to come if he wasn’t subpoenaed.
Ryan initially said he could not remember when he spoke to the defense attorney, but said it was after he talked to Fieger. After additional questioning, however, he testified that he spoke to attorney Jessica Beckett-McWalter on Wednesday evening.
He said she told him that not coming to meet Fieger was his decision.
“Why not call me back?” Fieger asked.
“No reason,” Ryan testified.
“You just decided to be rude?” Fieger countered.
“I just decided I didn’t want to come down here,” Ryan replied.
While the chambers discussion centered on Ryan’s appearance, media outlets were not permitted into the hearing because a court aide said there was not enough room, but a transcript of the meeting could be purchased.
An attorney for WPXI-TV in Pittsburgh filed a motion on Thursday that would ensure the court allow media attendance at future hearings so that the public’s right to access was not impeded.
After Ryan explained to the court why he did not meet Fieger as they had agreed, jurors were brought in to hear his testimony in regard to the civil suit.
Ryan, who took Nassan from the scene, said he seemed “in shock.” When he returned to the barracks, Ryan testified that Nassan filled out non-traffic citations, and the made a few phone calls before speaking with a patrol sergeant.
Ryan also indicated that he heard Nassan say that he shot Ellerbe because he would not take his hands out of his pocket. When Fieger further questioned him about that, Ryan said he did not believe that a trooper would shoot someone in the back for that reason alone.
“Today’s the first I heard about him getting shot in the back,” Ryan said. “I just assumed that when he wouldn’t take his hands out of his pocket he was facing Trooper Nassan.”
Ryan also testified that he saw Nassan near Ellerbe’s body, and yelled frantically to him, “Breathe, kid, breathe,” and shouted for someone to get an ambulance.
Testimony is set to pick up this morning.