friends of Bones

In the aftermath of David Hebert’s shooting death at the hands of Cincinnati police, Mayor Mark Mallory asked the city to reserve judgment pending the completion of a range of official investigations. On behalf of the City, he promised to insure that the facts were revealed, investigations properly conducted, and clear and transparent information given to the public.

Despite the open and pending nature of these investigations, police leadership used a series of press conferences and media releases to make prejudicial statements exonerating officers and stigmatizing the victim.

Discrepancies in Public Statements

911 CALL FROM JASON WELLER

[transcript] [audio]

Weller’s first statement is that he “got attacked by two big—a guy and a lady.” Both Hebert and his companion who survived the police encounter are implicated in this statement. Neither 130-pound Hebert nor his companion were “big” and Weller later describes Hebert as “90 pounds: That’s why they call him Bones [laughing].”

Weller gives three disparate descriptions of the alleged burglary. They differ with respect to whether a knife or sword was used. A wallet is not mentioned.

• “They walked out with a big ass pirate sword that was in my house and a little tiny knife.”
• “They cut me with a knife from my own house. They grabbed shit from my own house.”
• “Well they stole this big pirate sword from me cause he cut me with it.”

 

WELLER INCIDENT REPORT

[.pdf]

The Incident Report lists method of operation as “89-Other: USED KNIFE”, not sword, and “35-Takes Only Special Items” possibly the “big ass pirate sword” Weller alleges in the 911 call. No wallet is mentioned.

Weller’s wounds are described as “06-Other Major Injury”, despite his initial refusal of attention as documented in the 911 call and dispatch notes, which describe his wounds as not serious.

No method of entry is given and the victim description is not signed. The reporting officer is listed as arriving at 3:11 am, roughly simultaneous with Hebert’s killing. The incident report and preliminary investigation, then, were completed in the 19 minutes immediately following his death.

 

911 DISPATCH RECORDING

[transcript] [audio]

Hebert is first reported as armed with a sword, not a knife. Weller is reported as not having serious wounds and as refusing medical attention. Mitchell names Hebert’s female companion as a suspect, then warns they may be armed with “about a foot-long Bowie knife.” Times given are recording track times. The recording begins at approximately 3am, April 18, 2011.

 

JANKE PRESS CONFERENCE

[transcript .pdf] [wlwt news video] [youtube archive]

Acting Chief Richard Janke characterizes Hebert’s companion as a suspect, though recognizing she was not arrested. Janke concludes by asserting that the dubious alleged burglary was a “definite” and “confirmed” fact and that Hebert refused to comply with orders:

I think the significant points here that are kind of—that at least address some of these questions, are that we had a definite offense involving a cutting. That was confirmed by officers. We had a question and a denial, relating to whether this subject had a weapon, and then we had a very quick action on his part.

Hebert’s denial is in contention. Janke states that Officer Johnson “questioned him about whether he had a knife. Mr. Hebert denied having the knife—having a knife.” Criminal Investigation Division Head Lt. Col. Vincent Demasi’s statements to the Northside Community would later contradict Janke’s, showing that Hebert was questioned about and denied having a sword. Janke and Demasi are also in conflict about Hebert’s compliance. Janke asserts four times that Hebert was given commands, but only once are these commands described: “An officer ordered Mr. Hebert to keep his hand out of his pocket at least twice.” Demasi contradicts this: “Officer Johnson ordered him not to move his hand from there, “leave your hand there”. Hebert could not have been in simultaneous compliance with both commands.

Janke additionally states “Hebert does not have an address locally.” Hours before, police had impounded Hebert’s van from his address on Kirby Ave., against the objections of the homeowner and without showing a warrant. They would later inform his mother that they had removed the van at the homeowner’s request, but still refused to return it to Hebert’s estate.

 

DEMASI MEETING WITH NORTHSIDE COMMUNITY

[youtube pt.1] [youtube pt.2] [youtube pt.3]

In contrast with Janke’s and Deterss prejudicial assertion that an offense had actually been committed at Weller’s house, Demasi describes the alleged burglary and assault as merely “attempted”. Implausibly, he claims that the metal chain on Weller’s chain wallet was cut in the attempt, but does not mention the sword. He further indicates that Weller had cut his own had by grabbing a knife. He nevertheless characterizes Wellers wound as “severe,” in stark contrast with recorded statements by the original responders and by Weller himself, who refused medical attention.

Although originally named as a suspect, Hebert’s female companion, the only non-police witness to the events, has effectively disappeared. The crudely sketched diagram of the crime scene does not include her, and Northside residents must ask Demasi to draw her in. The sketch reveals that Mitchell’s cover position was behind and to the left of Hebert, where he could not have seen his right hand.

The Invesigations Bureau Commander reveals for the first time that Hebert’s denial “No I do not” was in response to being asked if he had a sword. He describes Hebert as in compliance with Officer Kneller’s and Officer Johnson’s commands, first to remain seated and then to stand for a pat down. The description of the commands given then diverge radically from the other accounts. Demasi asserts that officers all testified to hearing commands for Hebert to not to take or keep his hands out of his pocket, but rather “not to move his hand from there, ‘leave your hand there.’” Demasi contradicts Janke in revealing that one shot was to the left arm, rather than both to Hebert’s chest.

 

CRIME SCENE DIAGRAMS

[MSWord .doc] [MSword .pdf] [Demasi hand drawn .jpg] [with dimensions .jpg]

Janke asserted that Hebert lunged at Officer Johnson, who was giving the commands. These diagrams show that Johnson was roughly opposite Mitchell. If Hebert was facing Johnson, Mitchell might have heard the commands to keep his hands out of his pockets, but not have been in a good position to see Hebert’s right hand or whether he was complying. The most significant detail is conspicuous by it’s absence. The only independent witness has been disappeared from the diagram.

 

PROSECUTOR JOE DETERS

[press release] [wlwt news video] [youtube archive]

Prosecutor Deters, against the presumption of innocence and without a trial, declares Hebert guilty of aggravated burglary with a sword, yet does not produce any evidence of this crime. He states, for instance, that “officers were aware that this individual had already stabbed another citizen,” a claim not supported in Demasi’s account.

His account gets all the important details wrong, seeming to ignore the police accounts so far. He states that Hebert was stopped at Weller’s Virginia Ave. address, rather than on Chase Ave. He states that the police recovered a butterfly knife, rather than a stiletto or folding switchblade. Hebert’s companion, originally a suspect in the “confirmed” aggravated assault, is now merely a woman who happens to be sitting with Hebert when his is found.

Deters’ explains that his conclusion is credible because police statements are consistent with each other and with material evidence. Yet the testimony of the only non-police witness is excluded and material evidence—the distance of 25 feet—contradicts their claim that Hebert was in possession of a knife.

 

CORONER’S REPORT

[Coroner’s Report Log .pdf]

Investigator Charlie Beaver’s initial notes diverge drastically from the police accounts. In his narrative, it is Sgt. Mitchell, not Officer Johnson, who is giving the commands, and Mitchell already has his weapon drawn. Hebert is described as reaching behind his back, rather than into his front pocket.

The Hamilton County Coroner’s Office was not contacted by police until 4:36 am, over 1 hour and 20 minutes after the killing. The Coroner’s Office responded to the scene at 5:15 am. According to Demasi, the CO is the primary investigator in homicide cases and until its investigator arrives the police are not to alter anything in the crime scene. By the time the coroner’s investigator arrived, several police supervisors and two detectives were already present. Hebert’s pockets had been emptied by EMS “per Detective Vaughn”. It is unclear if this is intended to mean according to Detective Vaughn or on his authority.

 

MITCHELL PRE-DISCIPLINARY HEARING SUMMARY

Bauer Excessive Use of Force Incident

[hearing .pdf] [investigation .pdf] [local12 news video]

Sgt. Andrew Mitchell’s statements at his disciplinary hearing offer a window into his highly prejudicial, preemptive thinking. The hypothetical language has been emphasized:

Officer Mitchell stated that if the hold up alarm was in fact a “good alarm” this person would be a likely suspect or witness. Officer Mitchell felt it imperative to stop this person and identify him in case the alarm turned out to be a real robbery.

…

Officer Mitchell further stated that if the hold up alarm was “good,” in his experience, he thought the suspect would most likely be armed with a weapon, probably a handgun. Officer Mitchell stated that he decided to use the Taser to stop Mr. Bauer without warning him because Bauer might be armed and might try to avoid apprehension. Officer Mitchell also stated that he wanted to stop Mr. Bauer before he reached a position in the parking lot that might endanger the lives of other civilian pedestrians.

Captain Stephen Luebbe found Mitchell used excessive force and did not give Bauer the opportunity to submit to arrest. But his statements went beyond the issue of force to challenge Mitchell’s logic. He found Mitchell’s extreme application of the precautionary principle to be in dereliction of his primary responsibility to investigate the alleged crime:

Police Officer Andrew Mitchell used more force that was reasonably necessary to stop and detain Christopher Bauer Jr. Whether or not Mr. Bauer was wearing earphones and listening to an IPOD is not important to this hearing. Officer Mitchell was not justified in the use of force to stop anyone. There was no confirmed crime to investigate. Officer Mitchell’s primary responsibility, as first car on the scene, was to respond directly to Jersey Mike’s Restaurant to investigate and determine the validity of the alarm. In doing so he would have discovered the alarm was false and no other action was necessary. Had the alarm been “good” as Officer Mitchell feared, he would have been in a position to render aid to victims, obtain and broadcast a description of the suspect, protect the crime scene, and collect evidence.

Generalized to the Hebert case, the last sentence suggests Mitchell’s duty was to remain at the Weller residence and investigate the alleged burglary, not immediately chase down the already apprehended suspect.

MATERIAL BREACH OF COLLABORATIVE AGREEMENT

[.pdf]

In 2005, Lt. Col. Richard Janke’s “obstructive” resistance to civil oversight of the Police Department and his hostility toward the court were specifically cited by Chief Magistrate Judge Michael R. Merz in finding the city in material breach of contract and entering the Collaborative Agreement as an order of the court:

4. On December 1, 2004, at a scheduled two-hour meeting intended to discuss Community Problem-Oriented Policing (“CPOP”), Lt. Col. Janke characterized a question by Mr. Brann as the “stupidest question he had ever heard,” criticized the competence of the Monitoring Team, complained about the reporting requirements of the Collaborative Agreement, and eventually terminated the meeting after one hour. Id. at 3-4.
…
The Court concludes that, within the context of this Agreement, the stipulated events are clearly material breaches of the City of Cincinnati’s obligations. Excluding the Plaintiffs and their counsel from ride-alongs and Academy classes are inconsistent with the City’s obligations to collaborate with the other Parties in evaluating police practices.

Much more serious are the incidents between the command staff and the Monitor Team members in early December. At one point in its motion papers, the City characterized Lt. Col. Janke’s comment to Mr. Brann that he had just asked the stupidest question Col. Janke had ever heard as “candid expression of frustration.” The Court would, on the contrary, characterize it as rude and obstructive. Then on December 3, 2004, Chief Streicher revoked permission for a ride- along by Rana Sampson and literally ejected her from police headquarters.

The members of the monitoring team are all officers of this Court, appointed as special masters by Judge Dlott. Their treatment by the two top officers of the Police Department in the manner just described – which the City has agreed actually happened – cannot be taken lightly. Those incidents alone would make it clear the monitoring team needs the support of this Court which entering the Collaborative Agreement as a court order will give.”

2005 LINDER REPORT

[.pdf]

The Linder Report is a snapshot of the CPD culture in 2005, the year in which the Sixth Circuit Court found the city in material breach of the Collaborative Agreement. Both Andrew Mitchell and Phillip Threatt, who plead the Fifth earlier this year after shooting an unarmed man and who has even opened fire on fellow officers, were trained within this culture, graduating from the same 99th Police Recruit class in 2006. [Blue Wave vol.2 no.2 p.7]

Commissioned by Mayor Charlie Luken and paid for with private funds from business groups, the report was not public record until leaked by Councilman John Cranley’s office. Conducted by national police expert John Linder, it offers a candid, insider look at police opinion.

The survey found that a majority of police thought that firearms and officer safety training were prioritized over use of force or conflict resolution, and indeed in that order (Question 10. o, c, f, s). It revealed that most cops thought the Department’s highest priorities were “Staying out of trouble” and “Not embarrassing the Department,” with “Doing whatever it takes to help the Department avoid criticism” close behind (Question 14. d, q, s).

The survey further shows an overwhelming hostility toward civil oversight in the form of the Collaborative Agreement (Questions 1, 2, 3 and 33).