By Jerome L. Sherman
Pittsburgh Post-Gazette

Pennsylvania State Police Trooper Samuel Nassan's voice was shaking. He had just shot 12-year-old Michael Ellerbe.

"Get an ambulance here, quick!" he said over a police radio. "Get him here quick!"

The trooper's lawyer played the recording Wednesday during the opening arguments of a federal lawsuit targeting him and Trooper Juan Curry. They had been responding to a report of a stolen car in Uniontown on Christmas Eve of 2002 when Michael was killed.

Both sides in the trial gave sharply contrasting descriptions of the event.

Attorneys for Michael Hickenbottom, Michael's father, and the troopers agree that Trooper Nassan shot the unarmed boy in the back as he fled from a Ford Bronco. But they agree on little else.

They disagree about how many people were in the car, the positions of the officers at the time of the shooting and whether Michael was hit once or twice.

Geoffrey Fieger, a prominent trial lawyer from Michigan who is representing Mr. Hickenbottom, repeatedly referred to Michael as "the little boy with candy in his pocket" and claimed that troopers Nassan and Curry had changed their stories several times. He argued that they knew they never faced a serious threat and violated Michael's constitutional right by using "unnecessary force" to subdue him.

"They're not ever, ever permitted to shoot a child, or even an adult, in the back when he is running away from them," he told jurors in his hour-long opening statement. He noted that today would have been Michael's 18th birthday.

Andrew K. Fletcher, who is representing the troopers, described the shooting as a terrible tragedy. But he argued that the troopers were pursuing a suspected felon under tense, confusing circumstances. The entire incident, he said, took place over 90 seconds, and he recounted it for the jury with a computer animation.

The troopers had been driving on Cleveland Avenue when they spotted the Bronco, which had been reported stolen. Trooper Nassan yelled for the driver to stop. Instead, the car backed down an alleyway and crashed. Michael then ran from the car.

Mr. Fieger, who called the animation a "cartoon," argued that Trooper Nassan was close enough to see that the suspect was a boy. He also cited witnesses who said that someone else had been driving the car.

Trooper Nassan yelled several times for Michael to stop. He said the boy kept putting one hand in his pocket and looking behind him. Trooper Curry also joined the pursuit, pulling ahead of his partner with his gun drawn.

Michael scaled a fence. As Trooper Curry tried to follow him his pants became stuck on the top of the fence. At that point, Trooper Curry has maintained, his gun went off accidentally. He then slid down the fence, Mr. Fletcher said.

Trooper Nassan, thinking his partner had been shot, fired at Michael.

Mr. Fletcher then showed a poster-size picture of Michael's dead body, pointing out a bullet wound on the back and one on the arm. He said the bullet came in at an angle, killing the boy.

"It did turn out that he was unarmed. It did turn out that he had candy in his pocket. It did turn out he was 12 years old," Mr. Fletcher said. "It was heartbreaking. But the troopers were doing their jobs."

Mr. Fieger said tests by an expert witness show that Trooper Curry's gun couldn't have gone off accidentally. He argued that both troopers fired at Michael. He also said the troopers went back to their barracks together, giving them a chance to craft a story.

Mr. Fletcher said the troopers were separated immediately, following standard procedure.

Several witnesses testified yesterday. One, 15-year-old Melvin Duley, who was 10 at the time and watched the incident from his window, told the court that he heard Trooper Curry laugh when an ambulance arrived. The trooper then said, "He's dead."

Melvin also said he heard three shots, not two. But he said he didn't see who fired the shots.

On cross-examination, Mr. Fletcher showed the boy a copy of sworn testimony he originally gave to state police investigators, saying that he saw Trooper Curry fire at Michael. Melvin said he didn't remember giving the statement.

The lawyer also questioned the boy's mother, Elsie Cornish, showing her a photo of a sign that used to hang in the window of their house. It read, "USA Police Sucks."

She denied that she was anti-police, although she said she belongs to a group called People Against Police Violence.

The trial was scheduled to resume on Friday, when former Allegheny County Coroner Dr. Cyril H. Wecht is due to testify on behalf of the troopers.

ARTICLE