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Ex-trooper questions police in another death

| Monday, Nov. 28, 2011

UNIONTOWN -- A former state trooper who claims he was forced into retirement after challenging the official version of the fatal police shooting of an unarmed 12-year-old boy that resulted in a landmark $12.5 million settlement by the Pennsylvania State Police is again questioning the conclusion troopers from the same barracks where he used to work -- this time in a crash that killed a pastor's son.

Investigators from the barracks near Uniontown, contend 18-year-old Ewing Marcus Marietta II of Connellsville, fell asleep or otherwise lost control of his 2001 Ford Mustang about 2:45 a.m. while driving down a steep stretch of Route 40 coming home from a football camp in North Carolina in July 2009. Troopers concluded Marietta was ejected from his rolling car and died from resulting head injuries three days later.

But 49-year-old James Baranowski, who worked 17 years as a state trooper and 11 of those years as an accident reconstructionist before moving into the private sector and doing the same work for insurance companies and attorneys, believes the young man wasn't thrown from the car, let alone fatally injured in the crash.

Instead, Baranowski said Marietta was mostly likely struck by a passing motorist, probably as he stood in the highway trying to flag down help after the initial crash. Baranowski contends unidentified people in the car he believes hit Marietta are likely the same two individuals he believes stopped and called 911 before being allowed to leave by a trooper at the scene.

"They never got their names or phone numbers or their contact information," Baranowski told The Associated Press. "And that's contrary to (police) academy training."

Sgt. Joseph D'Andrea, the patrol supervisor at the barracks in question, said he was advised by superiors not to comment for this story because the Rev. Ewing Marietta, the victim's father, has a lawsuit pending against the as-yet unidentified driver of the other car, which could result in some troopers being called as witnesses.

Still, D'Andrea feels so strongly that he defended the official investigation, even though he declined to comment publicly on Baranowski's specific claims.

"I haven't seen anything that would support what's being said" by Baranowski, D'Andrea told the AP. "Any questions they have asked me, I have answered."

"And we stand by our crash report," D'Andrea said.

Baranowski and the pastor -- who runs the tiny Liberty Baptist Church in North Union, a few miles from the crash site -- have praised D'Andrea for his assistance to them, even as they criticize the official findings the sergeant steadfastly defends.

"Later on, the state police, they apologized to me and they said, 'We let two guys go we shouldn't have let go,"' the pastor said, attributing the apology to D'Andrea.

Baranowski takes issue with several official conclusions.

He believes the pastor's son remained belted into the car and was not thrown from it. He said a lack of "road rash" injuries and the young man's size -- 6-foot-4 -- suggest he couldn't have been thrown through the driver's side window opening, which was crushed and became smaller as the car rolled.

The young man's shoes were found relatively close together, near the car. Baranowski said that's consistent with the younger Marietta being struck by a passing car and lifted out of the shoes. He said the shoes would have landed more randomly had the teenager been violently ejected.

Baranowski believes police and Fayette County 911 official have wrongly withheld records that could identify a "witness" whom, he believes, was in the car that struck and killed Marietta. Baranowski said other witnesses saw two young men in another car at the scene expressing concerns about alcohol on their breath and, he believes, one of them called 911 before both talked to police and left.

"The state police bent over backward in this investigation to provide all the materials to the reverend," Baranowski said. "They gave him photographs, they gave him police reports, they gave him answers, you know, they talked to him. They went above and beyond the call of duty to be cooperative in this entire investigation -- until we asked for the 911 records."

Baranowski wants the 911 records because he's learned the caller gave a fake name -- that of a well-known pop star he wouldn't share -- so he wants to trace the number of the cell phone used to make the 911 call. Baranowski and the pastor said they recently got a court order to obtain whatever 911 records remain -- the audio recordings are long gone because they only must be maintained for 30 days under the law -- but have yet to receive them.

A Fayette County official said he'll turn over the records, which may or may not contain the phone number Baranowski wants, once he sees the court order. But an expert on public records from the Pennsylvania Newspaper Association said it's not surprising that the phone number of the 911 caller has been difficult to obtain.

Melissa Melewsky, the media law counsel for the PNA, said state Right-to-Know and public records laws generally protect the identity of 911 callers -- to safeguard them in the event they're reporting a volatile situation. Although county 911 officials can release such phone information at their discretion, or by court order, they don't have to otherwise, she said.

"Short of (getting) a court order, I don't know that the public access laws are helpful in this situation," she said. "I think they've got a difficult road ahead of them."

Baranowski's state police critics -- whom he acknowledges are many -- cite his comments about the 911 records as evidence that he makes unfounded allegations and has an axe to grind since he retired in 2003 rather than risk being fired, he claims, for questioning the official version of the Christmas Eve 2001 shooting of Michael Ellerbe.

Baranowski unsuccessfully sued the state police, in 2005 and 2008, claiming he was wrongly forced into retirement when he questioned the shooting of the 12-year-old who, evidence showed, was shot once in the back while running from two Uniontown-based troopers after he jumped out of a stolen vehicle.

The trooper who shot Ellerbe testified he thought the boy might be armed and said he fired only after his partner's trigger snagged on a fence, causing his weapon to fire. The first trooper testified he shot Ellerbe under the mistaken impression the boy had shot, or at least fired at, his partner.

Baranowski testified at a 2008 trial of a lawsuit brought by the boy's father about various alleged discrepancies in the official police version of the shooting, and a jury believed him in returning a wrongful shooting verdict of more than $28 million. The state police appealed the verdict before agreeing to pay $12.5 million to settle the case a few months later.

Baranowski's related civil rights lawsuits were both dismissed by a federal judge -- but not because a judge or jury rejected his claims that police brass retaliated against him for questioning the "official" version of the Ellerbe shooting. Instead, the first judge determined that state police supervisors couldn't be sued because Baranowski's dissent amounted to work-related comments that aren't protected as "free speech." The second lawsuit was dismissed for raising the same legal issues as the first suit.

"If you are a state trooper, according to the Commonwealth, the First Amendment does not protect your whistleblower speech," said Baranowski's former civil rights attorney, Timothy O'Brien of Pittsburgh. "They know very well that it was Jim Baranowski's testimony (at the Ellerbe trial) that sank their ship."

Baranowski puts it more directly: "The downfall with the state police is they never admit where they're wrong."

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