Overview

In the early hours of April 18, 2011, David “Bones” Hebert was shot dead by Cincinnati Police Sergeant Andrew Mitchell. Mayor Mark Mallory urged the city to suspend judgment pending three “independent” investigations: the criminal Homicide Investigation, the administrative Internal Investigation, and the tactical Firearms Discharge Board Investigation. These investigations have now concluded, and they demonstrate that Hebert was in fact complying with Officer Johnson’s commands to stand, step toward him, and produce a knife when he was shot by Sgt. Mitchell, who as “cover officer” was deliberately not listening to them.

Sadly, all three investigations failed to recognize this fact, reaching a more convenient conclusion.

The morning Hebert was killed, Acting Chief Richard Janke outlined a self-defense narrative* that exonerated Sgt. Mitchell’s shooting as “appropriate.” Against the facts available even then, Janke falsely suggested “All officers testify to the fact that the commands were given and the subject’s actions were very quick. Very rapidly he put his hands in his pockets, in his pocket, did not comply with orders and drew the knife and raised his arm very rapidly.” In a direct line from these statements, Assistant Chief Vince Demasi of the Investigations Bureau asserted a unanimity of officer testimony, saying “The other officers confirm this in different… they see basically the same thing.” Hamilton County Prosecutor Joe Deters would ultimately absolve the homicide as “justified.” Basing his judgment on the Homicide Investigation report, Deters found that the involved officers’ statements were “consistent with each other” and “consistent with the material evidence.”

These public pronouncements were all factually false, but they had after all a kind of poetic truth. The need to identify Hebert, and not Mitchell, as the aggressor overrode the preponderance of witness testimony and material evidence. To police investigators, the self-defense story had face validity, being the institutionally necessary conclusion to reach. They looked to the “facts” not to determine what actually happened, but only to confirm a predetermined conclusion: Hebert posed a threat.

Compliance

In fact there was no such consensus among officers. On almost every point, their individual statements conflict not only with the public pronouncements of Janke, Demasi and Deters, but with each other. For example, whereas Janke claimed “All officers testify to the fact that the commands were given,” Officer Kneller, in defense of whose life Sgt. Mitchell claimed to shoot, insisted he heard no commands when Hebert put his hand into his pocket to produce the knife. Officers Johnson and Stavale agree that Johnson was giving the commands. Mitchell alone claimed to hear two different voices.

Similarly, Hebert’s supposed noncompliance with commands is disproved by the investigative reports. Noncompliance, or resisting arrest, has become an almost reflexive defense in excessive force incidents. Johnson’s commands stand in place of a warning which, when ignored, would legitimate the use of lethal force. But here the claim of noncompliance is simply incoherent. What were these commands anyway? According to Janke, they were “to keep his hands out of his pockets.” But with his hand already in his pocket, how else was Hebert to comply except by removing his hand? Demasi seemed to recognize this dilemma when he tried to reverse Janke’s characterization, stating “As Mr. Hebert stood up, Officer Johnson indicates that he reached into the right side of his pocket. Officer Johnson ordered him not to move his hand from there: ‘leave your hand there.’” But in the end, the contradiction stands. Johnson, Stavale and Mitchell all agree that Hebert was commanded to “get,” “take” or “keep” his hands out of his pockets.

In fact, all of Hebert’s actions demonstrate deliberate compliance with Officer Johnson’s orders. Unlike Kneller, who was first on scene and nearest to Hebert, neither Mitchell nor Stavale heard Johnsons’ orders to stand, come toward him, and produce the knife. Mitchell twice volunteered “I don’t know if he was ordered up or if he stood up on his own accord.” Kneller testifies “He told him to stand up. And he said do you have the knife or where is the knife?” Kneller would later tell the Citizen Complaint Authority that Johnson had grabbed Hebert by the shoulder, and Johnson himself indicates he was in control of Hebert’s movement at the time, “when I moved him back here.” Nevertheless, Mitchell mistakenly assumed Hebert  was standing and advancing of his own accord.

Having been repeatedly asked about a knife, Hebert complied with Johnson’s orders, stood, went with him, reached into his pocket, and removed his hand, producing a knife—not on his own initiative, but entirely at Johnson’s directive. He complied with the commands and was shot for it.

Knife thrown

What happened then was, in the words of the Citizens’ Complaint Authority, “the opinion and perception of each officer.” The four officers’ accounts are conflicting and highly subjective but on close examination contradict rather than support the official account. Indeed, against Janke’s “rapid action,” Kneller testified that Hebert held the knife in plain view, “waving it around” for “probably five seconds” before Mitchell shot: “His arm was out, but it’s up toward his head.”

All three investigations agree with Janke in concluding that Hebert was assaulting Johnson with the knife when Mitchell shot. To reconcile this story with the material fact that the knife was found 25 feet away from Hebert’s body, the police must admit that Hebert threw the knife. But they claim this was only after Mitchell thwarted his attack by shooting him twice through the chest, fracturing his ribs and spinal column. Although essential for the self-defense rationale, this implausible sequence of events is explicitly contradicted by officer witness testimony. They say Hebert had already thrown the knife when Mitchell fired.

Against the official narrative, all officers agree with Kneller that Hebert did not throw the knife as a second, separate and subsequent action: “when the shots rang out, that’s when he kind of jerked his arm and threw the knife.” Officer Johnson remembers a single upward movement as Hebert threw the knife: “And it came up… and I just heard pow, pow. And then… it just went like that. You know, threw it.” He continues: “And it was just, it was one, it was one movement. …I just remember up, like that. And then pow, pow.” Officer Stavale actually states the knife was thrown before the shots rang out: “Well, after he threw it, I heard, you know, two shots, and that’s when he went down.” From his position behind Johnson, Stavale clearly recognizes that Hebert’s purpose was to throw the knife: “he was grabbing something out of his pocket and going to be throwing something at us.” Like Johnson, he emphasizes a single “continuous” motion, the “arc of his arm… throwing the item.”

According to unambiguous forensic evidence and his own admission, Sgt. Mitchell’s shots caught Hebert in the completion of this motion. “As I fire the shots, he is turning in a downward motion towards Officer Kneller.” Kneller was to his left, and Mitchell had first claimed Hebert was in fact attacking Kneller, until homicide detectives persuaded him to harmonize his testimony and name Johnson as the target. But Johnson was 180 degrees opposite Mitchell, with Hebert in between. The coroner’s report reveals that the bullet paths ware at a 15 degree downward angle and 15-30 degrees left to right across Hebert’s ribcage. If he was standing at all, he was bent forward and facing Mitchell rather than Johnson. Mitchell did not see Hebert throw the knife or take any other action after he was shot. The evidence overwhelmingly demonstrates that he had already thrown the knife away.

No threat

With the exception of Kneller, who states that Hebert displayed the knife conspicuously for five seconds before throwing it, all officers agree that throwing the knife was the only motion Hebert made. Just like the police investigations, which presumed a threat despite the material and eyewitness facts, the Citizens’ Complaint Authority found that “Whether Mr. Hebert’s motion with the knife was downward or across in a swiping motion is not an issue as the officers articulated a threat of serious bodily harm or death to Officer Johnson.” Yet contrary to Janke’s characterization, repeated in the investigations’ summaries, no officer ever described a “swiping” or “slashing” motion. Only Mitchell articulated actions he “believed” to constitute an objective threat: “an overt, aggressive movement towards Officer Kneller” as Hebert raised the knife in his hand and stepped forward. But remember, Mitchell did not hear Johnson’s orders to stand, move toward him and produce the knife.

The officers are similarly unable to articulate an objective threat towards any specific officer. Mitchell comes to consider Johnson, rather than Kneller, as the target only under the guidance of police interrogators. Kneller states “I couldn’t tell if he was trying to attack somebody with it or if he was just flaring around.” As Hebert threw the knife away, Stavale recalls, “he swung it and, you know, it could’ve been meant for any of us.” Officer testimony not only demonstrates a lack of consensus, but also fails to confirm that Hebert was an objective threat to officer Johnson or anyone else. If anything, it confirms that Hebert was doing his best to cooperate, even discarding the weapon to avoid posing a threat.

Fear and prejudice

The only points of unanimity among the officers were subjective: prejudice and fear. They perceived a subjective threat, not because of Hebert’s actions, but because of their own presumption of hostility. Jason Weller’s false allegations of aggravated burglary had primed the officers for a hostile encounter with a heavily tattooed, sword-wielding maniac.

Hebert displayed no guilty conscience and, a full 50 minutes after the incident on Virginia Ave., was not in flight according to Mitchell’s own testimony. Hebert’s companion testified they both intended to cooperate fully with police. Although Hebert was coincidentally in possession of a novelty knife, it was not the sword or Bowie knife Weller claimed was burgled from his home. Johnson admits “I really, when I pulled him up, to be honest I didn’t really think he had a knife on him because I was looking for something bigger than that. I didn’t think he, I didn’t think that was concealed anywhere, you know.” Nevertheless, Johnson interprets Hebert’s honest denial of possessing the sword as deceitful: “I felt the sense of him lying, I mean, I knew down the street, you know, he hurt someone with, you know, they said it was a sword.” Hebert was presumed guilty despite his full cooperation.

Each of the four officers likewise infers hostile intent from their presumption that Hebert was armed. Officer Stavale admits he “was anticipating some kind of weapon on this guy” and that this prejudiced his perceptions: “I believed it was a knife because of the way the initial run came out,… it stated that the, the complainant… said he had been cut and… the radio run also stated the word, you know, the sword.” His subjective perception then led Stavale to presume hostile intent: “He’s obviously going to do something um, he, you know, he’s not obeying commands and he’s got something in his mind. He’s going to do something.”

Officer Kneller also displays prejudice in his perception: “Because in, in my mind he had a knife, he had some kind of a weapon… And it was a knife run and we didn’t know where the knife was and all of a sudden he’s pulling something out, so in, in my mind it was a knife.” In response to detective’s prompting, Kneller also infers hostile intent: “I thought he was going to try and attack somebody.”

The record shows that Johnson, whose impulsive takeover of Kneller’s interrogation precipitated the shooting, also had the most prejudiced perceptions. He seems obsessed with Hebert’s eyes, mentioning them twelve times in his interview: “I see it in his eyes. His eyes were big.” His perception of a threat hangs on this vivid yet subjective detail. “We were told he had a knife on him and he was, his eyes were up, bigger than anything and so I just saw slow motion.” He ultimately concludes “A guy was pulling a knife out. And he was coming at me to hurt me.” Even Hebert’s aged dog Shady is drawn into Johnson’s paranoia. As Hebert stood in compliance, he entrusted the dog to his companion, Megan Hutchinson: “He looked right at her and he said take care of my dog… And I remember even then, you know, kind of perceiving that to mean that you know, something was about to happen…He’s out to, to put on fight. That he, something, to me, I just perceived it as something’s about to happen.”

These officer’s impressions may ultimately be irrelevant, since it was Mitchell alone who made the decision to fire. Although he articulates a perceived threat, it is neither a “swiping” nor “slashing,” but simply Hebert’s compliance with Johnson’s orders: “he raised his, the, the, his right hand up holding the knife and took a step towards Officer Kneller and, uh, believed that to be an overt, um, um, aggressive movement towards Officer Kneller. Um, you know, uh, at that point I felt that his life was in danger without a doubt.” Because Mitchell did not hear the orders or see Hebert’s face, his perceptions were impoverished and prejudicial. He states “I thought he was going to kill my guy. He was, it, it was a, it, step, it, but I couldn’t see his face, I couldn’t see the expression that he had, but I thought he was going to murder him.”

As cover officer, Mitchell explains he was not interested in Johnson’s interrogation. He states “I’m not the contact person, I’m taking a role of cover, and my only, you know, my only goal at that point was just to assess the threats.” In fact, Mitchell was “threat” obsessed, using the word as many times as Johnson mentions Hebert’s eyes. His interview with homicide detectives shows the use of his weapon was deliberate and premeditated. He explains how he took a position behind Hebert “to have a decent backdrop and not create any type of a crossfire situation” and goes on to describe his line of fire and backdrop in meticulous detail. Although the Coroner’s Investigator suggests he already had his weapon drawn, Mitchell states “as soon as I saw the knife I drew my firearm and pointed it at him, you know, and then was checking my back drop, making sure that I had, you know, a clear line of fire if he made an aggressive action.” As cover officer, Mitchell was determined to find a threat, and did.

Whitewash

David Hebert, “Bones” to the community that loved him, was killed because responding officers had prematurely judged him guilty of aggravated burglary. Complying with their orders did not save him. Because they had killed him, police were compelled to fabricate a case against him, including a bogus and unindicted aggravated burglary. There was insufficient evidence to indict Hebert’s companion as accomplice in any crime. In fact, the material evidence only corroborates Hutchinson’s account of events, which lies in stark contrast to Weller’s. But even though he skipped town rather than give a DNA sample, the reports naively reproduce Jason Weller’s story in order to establish a “confirmed” cutting offense.

The criminal justice leadership has at every turn obfuscated and misinformed. Against all available evidence, they played the non-compliance card, the standby of comply-or-die policing. They portrayed Hebert as an aggressor in order to claim innocent self-defense. And because this story was incredible on its face, they used his intoxication to motivate otherwise unexplainable behavior, leaking his medical records. The executive summaries of three investigations are entirely at odds with the officer testimony and material evidence they contain. Investigators disregarded their own data to reach a preordained conclusion.

The criminal homicide investigation refused to focus on the killer, who had a history of prejudicial violence and was even then being sued by Christopher Bauer for excessive use of force. Mitchell was in fact disciplined for repeatedly and without warning or provocation deploying his TASER on the unarmed and ultimately unconscious teen. But this and eight other internal investigations against Mitchell were entirely absent from the homicide file. Instead, the homicide investigation set out to establish an aura of criminality in the victim. Every available law enforcement record related to the victim was dredged up. A full 50 pages of the homicide report concerns itself with two incidents from Portland, Oregon. In one Hebert was the victim of a group assault; in the other he was merely a passenger in a DUI offense, and complied—at gunpoint—with officers’ orders.

All evidence records in the homicide file list Hebert as the suspect, rather than the victim. Some forms, such as the original crime scene sheet and the ballistics sheet, list the police as victim. But after the crime scene was processed, the overwhelming majority of evidence was reinterpreted as a felonious assault of victim Sgt. Mitchell, despite unanimous agreement among all officers that he was never in danger in the incident. The ballistics and DNA swab requests sent to the Coroner’s Lab falsely indicate that “The listed suspect pulled a knife on a Cincinnati Police Officer, then the officer fired two shots,” thus prejudicing the lab and signaling the desired forensic results.

All three reports falsify the evidentiary record to conceal police misconduct in the investigation. In his presentation to the Northside Community, Demasi explained that the Hamilton County Coroner’s Office is the primary investigator in homicide cases and, until its investigator arrives, police are not to alter anything in the crime scene. The Coroner was not contacted until 4:36 am, over 1 hour 20 minutes after the killing. His investigators responded to the scene at 5:15 am.

Officers Dawson, Kneller, Cotton, Abrams and Neal all turned their cruiser cameras off to avoid documenting the crime scene investigation. Only Lt. Milek allowed his camera to record the scene from the distance, but like Dawson and Kneller, his audio was either conveniently malfunctioning or muted in contravention of department policy. As a result, we have no audio documentation of what officers discussed in the aftermath of the shooting. Dawson’s and Milek’s videos nevertheless document the involved officers conversing and intervening directly in the crime scene, including manipulating Hebert’s body. It also shows that Mitchell, instead of rendering prompt medical attention to the dying man, kicked his arm to see if he was still alive.

Demasi continued “the involved officers within, within I feel very confident within five minutes were separated. I’m sure you do see people searching and I’m sure you do see people looking around a lot… Supervisors, the original separation is done by supervisors. That follows our policies and procedures.” The investigative reports all “confirm” that the involved officers were immediately separated and controlled by Capt. Jeffrey Butler. Yet dispatch records, cruiser video, Sgt. Troy Bastin’s notes, the crime scene log, and the direct testimony of Butler and Milek all directly contradict this assertion. Bastin alone acted as control officer for Johnson, Stavale, Kneller and Dawson until they were transported to CIS for interrogation. He did not arrive until 25 minutes after the shooting.

With the exception of Mitchell, the police witnesses were not separated and controlled until they were transported to CIS. Yet no police witness was recorded with cruiser video in accordance with policy. The only witness who was recorded for the duration was Megan Hutchinson. Officers were treated deferentially by interviewing detectives, who often guided their statements, but detectives openly challenged Hutchinson’s testimony and even lied to her to obtain information. In a follow up interview two days later, detectives attempted three times to get her to falsely remember making statements which the record shows she had never made. When she refused, the homicide report concluded she “did not corroborate any of her previous interview statements.”

Conclusions

All of these investigatory defects were inherited by the nominally independent Internal Investigation and Firearms Discharge Board. The latter rubberstamp review, rather than uncovering the above noted discrepancies in the homicide report, “confirms” its findings a full 44 times in the breadth of its 18 pages. Where the FDB generally identified a lack of communication and precipitous tactics in the incident, no individual officer’s actions were faulted. Citizen Complaint & Internal Audit Director Ken Glenn explained that their investigation, though genuinely independent, was solely concerned with policy and tactics, and did not conduct oversight of the police investigations. Noting the contradictory witness testimony, the CCIA nevertheless exonerated Mitchell.

Among the reforms adopted after the police killing of Timothy Thomas was the protocol that the city should share information with the public through a timely press conference. By the time David Hebert was killed, this institution had been perverted. While Mayor Mark Mallory urged dispassionate patience, the inveterate obstructionist Janke took the opportunity to slander the victim and circumvent oversight. Demasi obfuscated and Deters exonerated.

On April 27, 2011, over a hundred friends of David Hebert assembled at Cincinnati City Council to demand accountability for his killing at the hands of Sgt. Andrew Mitchell. Council extended its regular session to accommodate their outpouring of love, expressions of grief, and barrage of unanswered questions. Mayor Mark Mallory concluded by promising “It is the intention of the City of Cincinnati, and I’m speaking now as Mayor, on behalf of the City, to ensure that information is clear, transparent, that the facts are revealed, that investigations are properly conducted, and that the information is given to the public.”

The investigations were neither transparent nor proper. Hebert’s death was unnecessary and unjustifiable. One mayor and two police chiefs later, the City of Cincinnati has yet to live up to it’s promise of truth and transparency.

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* That self-defense narrative must already have been circulating at the crime scene. The investigator for the Coroner’s Office, Charlie Beaver, similarly preserved the poetic truth at the expense of the details when he wrote in his log the morning of the killing that “One Officer had his firearms drawn and ordered the decedent to stand up. The decedent complied but then reached behind his back pulled out a large knife and made movement toward one of the other uniformed officers. The Uniform Officer who had his weapon drawn discharged his firearm two times.” Investigating Officer Glindenmeyer’s ballistics submission to the Coroner’s Lab stated “the listed suspect pulled a knife on a Cincinnati Police Officer, then the officer fired two shots from his hand gun.” Both of these accounts are at odds not only with Janke’s narrative, but also with all of the involved officers’ testimony.

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