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Digging Up Answers for Bones

Friends: Prosecutor’s decision political

By Dave Malaska · September 14th, 2011 · News

At an Aug. 23 press conference, as Hamilton County Prosecutor Joe Deters declared the investigation into the police shooting death of David “Bones” Hebert over, clearing the officers of any wrongdoing, Paul Carmack was waiting outside the room, getting occasional updates from members of the media. 

Carmack, charged by Hebert’s family as administrator of his estate and their local representative, was denied access to the event by Deters’ office. 

“We were in the building, there to meet with (Deters). We didn’t want to ask questions. All we wanted to do was sit in the back of the press conference and hear what he said,” Carmack says. “They wouldn’t let us in. What happened there, it wasn’t expected. It was about politics. It wasn’t about answers.”

Now, a month after Deters closed the case and five months since Hebert was fatally shot by Cincinnati Police, the well-loved musician’s friends are still looking for answers from Deters, the Cincinnati Police Department and the city’s Citizen Complaint Authority. To them, the case hasn’t been closed at all. 

In the early morning hours of April 18, police received a 911 call. The caller told police that Hebert, a 40-year-old cook and musician from New Orleans, attacked him in Northside, stole a sword and stabbed him with it. Police responded and, shortly afterward, found the heavily tattooed and easily identified Hebert walking his dog nearby with a female friend. Police stopped the couple and began questioning them.

While officers questioned Hebert, they say he ignored orders to keep his hands out of his pockets. Then, with one officer standing two feet away, according to police, Hebert went into his pockets once more, pulled a knife and advanced on the officers. Sgt. Andrew Mitchell, a five-year veteran with the department who had arrived on scene midway through the stop, drew his weapon and fired twice. He shot Hebert in the chest — a fatal wound — and upper arm. The knife flew from Hebert’s hand, and he died almost immediately. 

After an internal police review, Hebert’s case was eventually turned over to Deters’ office. Months later, the prosecutor cleared the officers, offering his conclusion that “the police officers committed no crime and further were justified in the actions they took.”

Citing toxicology findings, which said Hebert had a blood alcohol content of 0.33 — more than four times Ohio’s legal limit to drive — along with marijuana and psychedelic mushrooms in his system, Deters said Hebert was “blasted,” threatened officers with the knife and posed a clear threat. 

Friends of the musician disagree. 

Rigel Behrens is one of those who’ve started a website, www.davidboneshebert.com, and a Facebook page to keep Bones’ story from fading away.

“Bones wasn’t a guy who was ever violent or dangerous.

He was more likely to hurt himself, being drunk and acting like a dummy, than threaten someone else,” she says. “When I first heard what happened, it didn’t make sense. It still doesn’t.” 

“There are still too many inconsistencies, too many questions,” adds Carmack, who has hired a lawyer to conduct an investigation for the family — Hebert’s elderly parents still living in Louisiana and a half-sister who lives in Philadelphia. “There have been inconsistencies in the police’s version of events from day one. Inconsistencies that haven’t been answered to our satisfaction.”

According to Carmack, he and the family’s attorney are still waiting for the city to release paperwork and other evidence, not to mention Hebert’s personal effects, despite the case being closed. When the evidence is finally made available, there are several points the family’s investigation will look into. 

Chiefly, they’ll look at the involvement of the officer who shot Hebert, Carmack says. 

“I think that’s the main thing that bothers us. Other officers were on the scene before Mitchell, and were handling it. Other officers were standing closer to Bones. Mitchell arrived on scene and within 54 seconds, he had pulled his weapon and shot Bones twice before the other officers had their hands on their guns,” says Carmack. “Clearly, the other officers didn’t feel threatened. I think the judgment of Sgt. Mitchell has to be looked at.” 

Carmack notes that Mitchell has been the target of previous complaints about excessive force and another incident when he was accused of inappropriately using a Taser on a teenager in 2008. A civil lawsuit is pending in that matter. 

The knife police say Hebert wielded will be another item examined, Carmack adds. 

Once shot, according to police, Hebert threw the knife, breaking a nearby window. The knife, according to crime scene photos, landed 25 feet away, blade sticking in the ground. Carmack questions how, once fatally wounded, Hebert could have accomplished the throw. 

“I went out there and measured it, and it was more like 35 feet. How does someone who died almost immediately throw something that far, with that much force?” he asks.

Another concern is why police cruiser cameras didn’t record the events. 

The only video available from the event starts after the shooting. Video from three separate cruiser cams show only officers removing the dog leash from Hebert’s hand after he had been shot. It does not show the initial stop or the shooting. 

“They test the cameras before every shift,” Carmack says. “I’ve seen the video of them testing the systems at the start of their shift, and it was working. How do all three cameras malfunction at the same time? And start working again right after Bones is dead? How does that happen?” 

Carmack and the family’s attorneys plan to ask for recordings from the entire evening from the cameras, and may ask to examine the hard drives that store the video to look for signs of tampering.  

If there was complete video, CPD’s version of events would be easier to believe, Behrens says. 

“For anyone who knew him, it’s hard to accept that Bones was threatening anyone. I don’t think anyone doubts he was (drunk),” she says. “He was probably taking a while to answer questions and it would take him a while to stand up. But I don’t think he could have acted quickly enough to be a threat to anyone. If there were video, and we could see it, it would be easier to accept. Without video, their version of events is just hard to believe.” 

Carmack and the family’s attorneys are still petitioning the city for evidence. Once they have it, Carmack says, their investigation could be a lengthy process, taking months. Until then, friends of Hebert will continue to hold events in his memory and keep looking for answers. 

“We’re not cop-haters. We’re not,” Carmack says. “We respect that our police officers do a tough and dangerous job. In this case, though, it all comes back to the judgment of one officer and the lack of answers. We’re going to keep asking questions because the public deserves more of an explanation than what we’ve been given.”



09.15.2011 at 02:05 Reply

It's not just that the police account of events doesn't jibe with Bones' character history, or even with hard evidence like the toxicology report. There are serious questions about how the police have handled the case, especially Acting Chief Janke who is notorious for his resistance to civil oversight of the police force. Their equivocations make it hard to accept the official account.

   The morning of the shooting, Janke described Bones—a Cincinnati resident for more than a decade of his adult life—as an out-of-towner with no local address. But this was hours after police had seized his van from that address, without producing a warrant and against the protestations of the homeowner. Since then, media have described him as a “drifter”, “nomad” or New Orleans resident and not as belonging to the Cincinnati community.

   Then there is the independent testimony of neighbors, which seems to contradict the police explanation of the knife's position more than 25 feet away from Bones' body. The police will say the knife was recovered from the scene, but it was not recovered from his person and the cruiser cams show police completely unable to locate it. Under the influence of the sword hallucination, police expected Bones to be armed, but the material evidence seems to contradict that expectation.

   First the police and then the prosecutor have used autopsy reports showing Bones' level of intoxication to support their story. The implication is that he was using illegal drugs, so he must be criminal. But unlike cocaine, amphetamines or PCP, the drugs Bones was on are not associated with violent behavior; on the contrary, they would have made him confused, but compliant. In fact, Bones had been an alcoholic and habitual user of marijuana, and the hundreds of character witnesses who are standing with Bones knew his behavior under the influence of precisely those drugs. Ohio law says that voluntary intoxication can't be used as defense for one's actions. But it does not prove culpability either, and the law does allow intoxication as evidence that the subject was incapable of performing the alleged actions. It is incumbent on the police to explain how a subject that intoxicated could have acted in such a quick and coordinated manner as to get the initiative and take the officers by surprise.

   And that leads to what has become the elephant in the room. According to the police account Bones twice denied having a knife, but a closer examination of police testimony shows they were—quite ridiculously—asking the diminutive man, seated on the sidewalk, if he was concealing a sword. Under these circumstances, the events immediately preceding the shooting become relevant. Prosecutor Deters has, against the presumption of innocence and without a trial, declared Bones guilty of aggravated burglary with a sword. I think it's fair that he at least present the evidence supporting his case. Produce the sword.

   Listening to the 911 call and police tapes, it is reasonable to conclude that Weller was under the influence of all the same drugs Bones was. Andrew Mitchell left Weller's address armed with the hallucination of a heavily-tattooed sword-wielding maniac. Less than a minute later, Bones was dead. It was not the first time Mitchell had proceeded to the scene of a supposed burglary and shot the first person he saw. But in none of their media statements have police recognized Mitchell’s history of violence and bad judgment.

   Absent “indict-a-cam” video, their story is not credible. With a wrongful death lawsuit pending, the Cincinnati Police Department has no interest in transparency. Janke, whose obstruction of court-appointed monitors led the US Sixth District Court to impose the Collaborative agreement on the city, has lead the investigation. At his press conference, Joseph Deters showed he was unfamiliar with the details of the case as even the police have presented them. After ten years, it has become clear that the police and prosecutor have hijacked the reforms adopted after the 2001 riots. Their press conferences and media releases, instead of keeping the public informed, have become opportunities to spin public perceptions and obstruct oversight. And that’s something the whole city should care about.


09.15.2011 at 01:20

Dear Larry,

You are simply regurgitating the story the police have pushed through their press conferences. If you wish to have an opinion about the death of my friend, I just ask that you "check" the facts and have an informed one.

Bones was an alcoholic. He came back to town partially seeking help from supportive friends, his "tribe" he said. With the help of so many people who loved him, he achieved sobriety for two months before falling off the wagon. I do not surrender to sovereign police the power to summarily execute intoxicated people. And I think it's a sad comment on your own humanity that you do.

If you look closely at the accounts police have revealed so far, Bones was standing in compliance with the orders of the police, and--if he was actually in possession of the knife--may have been trying to comply by producing it. All the physical evidence and independent testimony would indicate he was not in possession of the kinfe. At any rate, when you have your hand in your pocket, and someone gives you the lawful command: "don't put your hands in your pocket", how should you comply? Do you take your hand out of your pocket, or do you keep it in your pocket?

Over two thousand Friends of Bones are standing up for individual responsibility. The responsibility of Andrew Mitchell for taking the life of our friend. Unlike Mitchell, Bones has no history of violence, yet this is the second lawsuit for excessive force Mitchell has brought on the city in only five years. Please, Larry Bird, take some responsibility for your city. Before it's too late.


09.15.2011 at 03:44

I don't dispute the tragedy here.  It sucks for everyone involved.

But you are villifying an officer who responds to a threat of deadly force (A knife) for doing what they must.  

God forbid anybody take responsibility for thier own behavior, it's easier to blame it on the officer and cook up a conspiricy theory.

Stated below "Over two thousand Friends of Bones are standing up for individual responsibility. The responsibility of Andrew Mitchell for taking the life of our friend."


If they were standing up for individual responsibility, they would also concede it was his irresponsible behavior that led to these unfortunate circumstances.    


It's just easier to blame the officer...


09.15.2011 at 06:16

Right on Matty.

Larry Brid, responsibility is exactly what the friends of Bones are asking for. Responsibility from the Cincinnati Police for one of their officers who is obviously out of control (a quick google search of his name will reveal that he attacked a boy wearing ear-phones for not listening to him) If there was transparency throughout the Police force then none of us would be here. If the Police force at the highest levels would take responsibility for the misdeeds and blatant cover-ups at the lowest level, none of us would be discussing this. Misdemeanor mistakes don't deserve the death penalty, and my fellow citizens pay too much for how little our Police department actually does right.

Check your thought process, cop. 


09.15.2011 at 07:36 Reply

Right on, Matty. Very well said. 


09.15.2011 at 08:44

The background elements are so conveniently left out of the story. Weller's condition, his demeanor, what is overwhelmingly described as a stabbing, which was a cut on the hand most likely from Weller trying to take a knife away from another person, but grabbing the business-end instead, plus refusing medical attention.

It's clear from that 911 call that he merely wanted to stick it to the guy (Bones) who was just at his house. A house by the way, he didn't even know the address of. Not to mention that Bones had moved back to Cincinnati with the idea that he had a job and friends waiting for him, (which he did).

It breaks my heart that in a few months of moving back, his life would be so casually snuffed out like this, and the story so lamely and insufficiently "explained" away.

Had Sgt. Mitchell not appeared on the scene, I have no doubt that Bones would still be alive. No doubt.


09.15.2011 at 09:27

Great article and response.  I love you all.


09.15.2011 at 11:49

While anytime someone is killed it's unfortunate, lets check the list of bad descisions beforehand.

Drunk? Check

High? Check

Hallucinating on Shrooms? Check

Not follwing lawful commands from an officer? Check

Pulling a knife? Check


yet this is the officers fault how?  Have some damn personal responsibility for your actions.


09.16.2011 at 03:18


That is a shallow, kneejerk response from someone short on attention span and long on moral platitudes. Exactly the response Richard Janke and Joseph Deters were looking for when they spun their story.

So you tell me, what makes you believe Bones pulled a knife or was even high that night? Can you show me what makes you so certain? What information do you have that I don't?

Really it's you who are turning responsibility on it's head. Bones did nothing wrong but walk away drunk from a bad situation. It's Mitchell who is responsible for the deadly use of force. It's not the first time. One man is standing, and you are villifying the victim because it's easier than thinking.

Take responsibility for yourself and for your city.


09.15.2011 at 01:49 Reply


I would totally agree with you IF all the things you say 'check' to could definitively be said 'check' to.

Problem is they can't because many of those claims - especially the last two are highly questionable, and non-police accounts differ greatly on those points.


09.15.2011 at 01:55 Reply

As a long time dog owner the question that I have is if Bones was so violent that a police officer had to shoot him why was the dog so calm and docile? If anyone or anything around me is violent or spinning out of control my usually calm and sweet dog WILL start barking and jumping around even at the age of 12 to try to get everything out of control.  So a man holding a DOG LEASH jumped at the cops with a knife in the other hand - dog makes no sound - cops shoot dog owner - dog owner fatally wounded still able to hold his dog leash AND throw a knife 35 Feet.  All 3 cameras fail?  NO I don't believe a word of the cops story...also if being drunk and high on shrooms is enough reason for a cop to shoot someone - regardless of how uncoordinated those very drugs make the person - then the cops in Amsterdam have a lot of work ahead of them...


09.15.2011 at 05:43 Reply

Don't forget that there were already 3 police officers on the scene when Andrew Mitchell arrived. They were calmly talking with Bones and did not have their drawn guns in their hands, their guns were holstered. Mitchell pulled up in his cruiser, slammed the car into park, jumped out of his cruiser, drew his gun, barked at Bones and then shot him. Mitchell was not aware of what was going on at the scene, he was reacting to his own internal demons.
The Cincinnati Police should not be in charge of an investigation regarding their conduct. A qualified external review board should do that, and should also redo the investigations regarding CPD's conduct on several issues over a few years.