The family of a 12-year-old Uniontown boy fatally shot by state police in 2002 wants a judge to bar from trial video animations incorporating testimony and information from troopers.
Michael Ellerbe's father, Michael Hickenbottom, sued two troopers after his son was shot on the afternoon of Christmas Eve 2002 as he ran down a city alley from a stolen Ford Bronco.
U.S. District Judge Joy Flowers Conti has scheduled a hearing for Thursday on the issue of the video.
Hickenbottom's attorney, Robert M. Giroux Jr., argues the three-dimensional video animations by Precise Inc. of Pittsburgh document testimony that is favorable to the officers, Samuel Nassan and Juan Curry, but exclude any unfavorable evidence.
Giroux claims the defense hasn't shared what information was used to create the animations and that Conti should block them from trial because the discovery stage has been closed for more than two years.
"When a video represents one party's staged recreation of facts in controversy, not only is the danger that the jury may confuse art with reality particularly great, but the impressions generated by the evidence may prove difficult to limit," Giroux wrote in a motion.
But defense attorney Andrew K. Fletcher contends Giroux failed to object to the use of a DVD featuring six animations before a Sept. 6 court-ordered deadline.
He argues that the jury is capable of understanding that the animations are an illustration of the troopers' testimony. Curry testified at a January 2003 inquest that his gun accidentally discharged as he climbed a 4-foot fence and fell. Nassan said he heard the shot and saw Curry fall.
Thinking his partner was shot, Nassan said, he fired a round at Ellerbe.
Three of the animation clips detail views from Cleveland Avenue, where a plaintiff's witness lives. The boy, now 15, has given a deposition disputing police testimony.
Another video depicts testing by a retired crime-scene analyst about the ejection of shell casings from Nassan's gun to compare it to Nassan's testimony.
"Defendants' animations contain representations of the scene and the (troopers') testimony," Fletcher responded in a court filing. "The animations will make other evidence more comprehensible to the jury and are therefore proper demonstrative evidence."
Fletcher said the animations are similar to a witness making a drawing on the stand.
Precise's client list includes 35 law firms and the state Attorney General's Office, according to its Web site.
A Pittsburgh attorney, Kevin C. Abbott of Reed Smith, said animations frequently are used in court cases.
"Generally, animations are admissible as evidence if the court finds they fairly depict what's in evidence by one side or the other," he said.
A video animation of a fatal vehicle-pedestrian crash in 2005 helped Berks County prosecutors obtain an involuntary manslaughter conviction for the driver.
Roger Rozsas, who has more than 25 years of experience in law enforcement, created the crash reconstruction video through his business, Forensic Scientific Services of Media, Delaware County.
"It's a great tool. Demonstrative evidence is really what it comes down to," he said. "This is a tool that can be used for defense purposes as well as for the prosecution."
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