Sergeant Andrew Mitchell, 12/17/2014
1
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION PAUL CARMACK,
:
Administrator for the
:
Estate of David
:
Hebert,
: :
Plaintiff, vs.
:
Case No.
:
1:12-CV-00308
: :
ANDREW MITCHELL, et
:
al,
: : Defendants.
:
Videotaped deposition of SERGEANT ANDREW MITCHELL, a defendant herein, taken by the plaintiff as upon cross-examination, pursuant to the Federal Rules of Civil Procedure and pursuant to notice of counsel as to the time and place and stipulations hereinafter set forth, at the offices of Litigation Support Services, 817 Main Street, Suite 400, Cincinnati, Ohio, at 10:20 a.m., Wednesday, December 17, 2014, before Deanne Cartwright, a Notary Public within and for the State of Ohio. - - -
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
2 1 2 3
APPEARANCES FOR THE PLAINTIFF:
PAUL M. LAUFMAN, ESQ. Laufman & Napolitano 4310 Hunt Road Cincinnati, Ohio 45242
FOR THE PLAINTIFF:
GREGORY A. NAPOLITANO, ESQ. Laufman & Napolitano 4310 Hunt Road Cincinnati, Ohio 45242 PETER J. STACKPOLE, ESQ. City Solicitor's Office 801 Plum Street Suite 214 Cincinnati, Ohio 45202 DONALD E. HARDIN, ESQ. Hardin, Lazarus & Lewis 915 Cincinnati Club Building 30 Garfield Place Cincinnati, Ohio 45202
4 5 6 7 8
FOR THE DEFENDANTS:
9 10 11
FOR THE DEFENDANTS:
12 13 14
ALSO PRESENT: 15
Larry Johnson Brian Kneller Nicolino Stavale
16 17 18 19 20 21 22 23 24 LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
3 1
S T I P U L A T I O N S
2
It is stipulated by counsel for the
3
respective parties that the deposition of
4
SERGEANT ANDREW MITCHELL, a defendant
5
herein, may be taken at this time by the
6
plaintiff as uopn cross-examination and
7
purauant to the Federal Rules of Civil Procedure
8
and notice to take deposition, under notice all
9
other legal formalities being waived by agreement;
10
that the deposition may be taken in stenotype by
11
the Notary Public Reporter and transcribed by
12
her out of the presence of the witness; that
13
the transcribed deposition was made available
14
to the witness for examination and signature
15
and that signature may be affixed out of the
16
presence of the Notary Public-Court Reporter.
17 18 19 20 21 22 23 24 LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
4 1 2
WITNESS
INDEX DIRECT CROSS
REDIRECT
RECROSS
3 4 5 6
SERGEANT ANDREW MITCHELL BY MR. LAUFMAN: EXHIBIT IDENTIFIED Exhibit 19 Exhibit 20
5 PAGE 141 142
7
OBJECTIONS
PAGE LINE
MR. MR. MR. MR.
10 65 113 130
8 9 10
STACKPOLE: HARDIN: HARDIN: STACKPOLE:
1 12 2 7
11 12 13 14 15 16 17 18 19 20 21 22 23 24 LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
5 1
VIDEOGRAPHER:
2
record.
3
witness in, please.
Would the court reporter swear the
4 5
SERGEANT ANDREW MITCHELL, a witness herein, of lawful age, having
6
been first duly sworn as hereinafter
7
certified, was examined and testified as
8
follows:
9 10:20
10:20
We're on the
10
CROSS-EXAMINATION BY MR. LAUFMAN:
11
Q.
Good morning, sir.
12
A.
Good morning.
13
Q.
You and I have met on several
14
occasions but for purposes of this deposition
15
and the record let me introduce myself as
16
Paul Laufman the attorney for the estate of
17
David Hebert and the administrator
18
Mr. Carmack.
19
Greg Napolitano.
We are here today to take
20
your deposition.
You have been sworn and are
21
under oath.
Present with me is my partner
Do you understand that?
22
A.
Yes, sir.
23
Q.
You've had the benefit of having
24
sat through several of these depositions so LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
6 1
you perhaps have heard some of the ground
2
rules but let me run through them with you.
3
First let us address your oath.
4
sworn an oath to tell the truth just as you
5
would in a court of law.
6
that?
10:21
Do you understand
7
A.
Yes, sir.
8
Q.
The importance for you to be as
9 10:21
You have
complete and accurate with your testimony
10
during this deposition is just the same,
11
you're under just the same oath as you would
12
be in a court of law in the presence of a
13
judge or a jury.
14
A.
Yes, sir.
15
Q.
I'm gonna do my best today to
Do you understand that?
16
ask clear questions.
17
an opportunity to sit through some
18
depositions.
19
Mr. Napolitano has taken.
20
point you have seen, I hope, that I don't
21
intend to ask misleading questions.
22
ask questions you don't like.
23
answers.
24
trying to ever trick you or mislead you.
As I said, you've had
Some I've taken.
Some
Hopefully by this
I may
I may force
I may do lots of things but I'm not
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
7 1
10:21
10:22
If there is a question that you
2
don't understand, please just ask me and I'll
3
try to rephrase it or ask it in a different
4
way.
Okay?
5
A.
Very well.
6
Q.
If you answer a question, I'm
7
going to assume that you understood it,
8
answered it to the best of your ability.
9
that fair?
10
A.
That's fair.
11
Q.
So we don't run into a
Is
12
circumstance at trial where I'm presenting
13
you with an answer you gave previously and
14
you said, well, I didn't understand that or I
15
didn't answer as fully or fairly as I could
16
have.
17
testimony and say you didn't ask me to
18
clarify.
I would point back to this part of the
Got it?
19
A.
Fair.
20
Q.
Okay.
We can take breaks as the
21
day goes on, comfort breaks, you want to
22
speak with your attorney.
23
inquisition.
24
if there's a question on the table, meaning
This is not an
The only thing we ask is that
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
8
10:22
1
that I have asked you a question, that that
2
question be answered in full before we take a
3
break.
4
you know, just to stretch your legs or
5
whatever let us now.
6
A.
Okay.
7
Q.
Otherwise we'll intend to go for
Thank you.
8
a couple of hours, break for lunch, return
9
and continue into the afternoon and see how
10
we progress.
Okay?
11
A.
Yes, sir.
12
Q.
Let's start with some basics.
13
First let me ask you to give me a list of
14
everybody with whom you have discussed this
15
case.
16
10:23
Beyond that if want to take a break,
A.
I spoke with the detectives at
17
the homicide unit on the night of the
18
incident.
19
commander.
20
length about anything.
21
attorneys and my wife, various friends and
22
family members in very minute detail, and
23
that sums it up.
24
Q.
I was debriefed by my district We didn't talk at any great I've spoken with my
When you say the detectives,
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
9 1 2
Detectives Hilbert and Gehring
at the -- they're part of the police
4
intervention team that investigates police
5
involved shootings. Q.
And that was an interview that
7
was conducted in the morning or the hours
8
after the incident?
9
A.
That's correct.
10
Q.
Have you spoken with them other
11 12
than on that occasion? A.
I had an opportunity to speak
13
with Detective Hilbert during a meeting
14
between he, myself, and our attorney prior to
15
his deposition.
16 17 18 19 10:24
A.
3
6
10:24
you're referring to which individuals?
20 21
Q.
Do you recall how many days
prior to your deposition? A.
It was the day of.
Of his
deposition. Q.
So prior to his deposition you,
Detective Hilbert and who had a meeting?
22
A.
Mr. Stackpole.
23
Q.
What was the topic of that
24
meeting? LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
10 1
MR. STACKPOLE:
2
instruct him not the answer as to the
3
substance of the meeting because I believe
4
it's protected by attorney/client privilege.
5
Bill Hilbert is a homicide detective who's
6
integral to the defense of the City of
7
Cincinnati and the officers in this case.
8 9 10:25
MR. LAUFMAN:
I would agree he's
integral to the defense but he's not a named
10
party.
11
individual capacity.
12
the FOP.
You don't represent him in his You're not counsel for
You're counsel for the city.
13
10:25
I'll object and
MR. STACKPOLE:
That's correct
14
but the -- unless I'm mistaken, you've
15
identified the City of Cincinnati as well,
16
right?
17
MR. LAUFMAN:
18
MR. STACKPOLE:
Correct. So the City of
19
Cincinnati is being defended as well and he
20
is part of that defense.
21
Mr. LAUFMAN:
So it's your
22
position -- I mean, you're asserting
23
attorney/client privilege.
24
MR. STACKPOLE:
I am.
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
11 1
MR. LAUFMAN:
2
that so long as these meetings are held and
3
the individuals present at the meeting are
4
employees of the City of Cincinnati that you
5
have the right to attorney/client privilege?
6
10:26
MR. STACKPOLE:
Not as long as
7
they're employees of the City of Cincinnati.
8
They have to be integral to the defense of
9
the City of Cincinnati.
If I met with
10
someone who is -- I don't know.
11
with Andy Mitchell and some low level
12
employee who had little to do with it and we
13
discussed the facts of the case I don't think
14
it would be protected by attorney/client
15
privilege but he's integral to our defense
16
strategy so I am asserting the
17
attorney/client privilege.
18
10:26
It's your position
MR. LAUFMAN:
If I met
At what point did
19
he become integral to the defense,
20
Mr. Stackpole?
21
MR. STACKPOLE:
22
MR. LAUFMAN:
23
MR. STACKPOLE:
24
Well, when -Mr. Hilbert. -- you
identified the City of Cincinnati as a LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
12 1
defendant --
2 3
MR. LAUFMAN: Mr. Hilbert.
4
MR. STACKPOLE:
5
the moment that you filed a lawsuit that
6
named the City of Cincinnati as a defendant.
7
10:26
Since -- since
MR. LAUFMAN:
For purposes of
8
today's deposition -- I think you've already
9
said this.
10
I just want to be clear -- you
are instructing the witness not to answer.
11
MR. STACKPOLE:
Yes, I am as to
12
anything that would involve attorney/client
13
matters.
14 15
10:27
But specifically
MR. LAUFMAN:
Which would be the
content of that entire meeting?
16
MR. STACKPOLE:
17
MR. LAUFMAN:
Correct. Other than the
18
meeting on the day of Mr. Hilbert's
19
deposition and the day you interviewed with
20
homicide the morning following the shooting,
21
have you had any other contact with
22
Detectives Hilbert or Gehring about this
23
case?
24
A.
No, sir.
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
13 1
10:28
You indicated that your
2
commander debriefed you.
3
would that have been?
Which commander
4
A.
It was Captain Paul Neudigate.
5
Q.
Can you spell the last name?
6
A.
N-E-U-D-I-G-A-T-E.
7
Q.
And help me understand how
8
Captain Neudigate falls over you in the chain
9
of command.
10
A.
He's the district -- he was the
11
district commander of district five and I
12
was -- I'm assigned to third relief in
13
district five so he's my district commander.
14 15
Q.
So at the district level he is
the highest ranking individual?
16
A.
That's correct.
17
Q.
When did you have this
18 19 10:28
Q.
conversation with Captain Neudigate? A.
I believe it was one of his
20
first days being assigned to district five.
21
He wanted to check on my wellbeing, make sure
22
that I was okay.
23
I was having any problems dealing with the
24
fact that the incident took place.
Asked me if I had any -- if
We didn't
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
14 1
talk about any specifics of the incident but
2
he was -- the debriefing process for him was
3
to ensure that one of his supervisors was
4
still able to perform all of the functions
5
required of a police officer.
6 7
10:29
So this meeting took place some
period of time after the incident?
8
A.
That's correct.
9
Q.
Are you able to estimate
10 11
approximately when? A.
It was within a year.
I believe
12
it was within six months but I don't know if
13
I can be more specific than that because I
14
don't nec -- I don't -- I don't recall.
15
was quite a long period ago.
16
10:29
Q.
Q.
It
But your assessment of that
17
meeting was that Captain Neudigate was just
18
trying to assess how you were doing, your
19
fitness for duty, not trying to investigate
20
or ascertain for himself what occurred.
21
A.
That's correct.
It was not a --
22
it was not a interview regarding any kind of
23
facts of the offence or the propriety of it.
24
It was a matter of him just wanting to make LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
15 1
sure that I was doing okay.
2
generally concerned as a nice person to make
3
sure that I was doing okay.
4
10:30
Q.
Have you ever had conversations
5
regarding what occurred with either
6
Mr. Kneller, Mr. Johnson, or Mr. Stavale all
7
of whom are present this morning?
8
A.
Yes.
9
Q.
Tell me about those
10
conversations.
11
time.
12
10:30
He was just
Let's take them one at a
Let's start with Mr. Kneller. A.
You know, we've in passing asked
13
each other, you know, we're okay.
14
traumatic to be in that kind of an incident
15
and, you know, I -- I certainly care about my
16
subordinates and I'm fortunate enough to
17
where they care about me and it's -- you
18
know, we make sure that everybody's doing
19
okay.
20
are your kids?
21
anything?
22
sit -- we didn't sit down and hash out all of
23
the facts or, you know, discuss any type
24
of any -- any real -- in any real detail
Are you okay?
It's quite
How's your wife?
How
You have any issues with
You know, did we -- we don't
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
16 1
regarding the incident like, hey, this was
2
here, this was here.
3
okay?
4
other.
5
10:31
10:31
It was, are you doing
You know, we have to care about each
Q.
Did you ever have any
6
conversations with Mr. Kneller regarding the
7
facts of the event?
8
A.
No.
9
Q.
How about Mr. Johnson?
10
A.
No, not specifically.
11
Q.
When you say not specifically, I
12
mean, generally?
13
A.
No, not specifically.
No.
Well, when I talked to Mr. --
14
Officer Johnson about the incident he was --
15
it was -- the only time I talked to him at
16
any length about this incident was just a
17
couple days afterwards.
18
it was actually quite an emotional
19
conversation.
20
his life.
21
saving his life and, you know, he said
22
several times, you know, I thought the guy
23
was gonna kill me, I could have sworn he was
24
gonna kill me.
He had called me and
He was thanking me for saving
His wife wanted to thank me for
You know, so it was -- it
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
17 1
was -- you know, so we discussed some of the
2
facts such as Officer Johnson believing that
3
Mr. Hebert was going to kill him and, you
4
know, him thanking me for saving his life.
5
So those were the type of facts that we
6
discussed.
7
10:32
Q.
8
Officer Johnson's belief that Mr. Hebert was
9
going to kill him that were discussed?
10 11
A.
No, sir.
Those were the only
facts that we discussed.
12
Q.
You indicated that that phone
13
call was the only time you had spoken with
14
him at length.
15
occasions where you spoke with him less so?
16
10:32
Any other facts other than
A.
Were there are other
You know, only in regards to,
17
you know, are you doing okay?
18
wife?
19
right?
20
know, we -- we check on each other.
21
to take care of each other.
22
How are your kids?
How's your
You holding up all
Any -- you know, any problems?
Q.
You
We have
Any other conversations with
23
Mr. Johnson other than those you described
24
here today? LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
18 1
A.
No, sir.
2
Q.
How about Mr. Stavale?
3
A.
I spoke with Officer Stavale
4
10:33
10:33
three nights ago at work.
5
Q.
Tell me about that conversation.
6
A.
I told him that, you know, that
7
I thought he was a good policeman and that
8
there were some statements that he made in
9
his deposition that I didn't be specific
10
about any of the statements that he made
11
during his deposition but I told him that
12
there were statements that he made in his
13
deposition that I disagreed with but we
14
didn't talk any further about what it was or
15
any factual information reference the
16
incident.
17
fact that I might have to contradict
18
something that he may have said.
I wanted to prepare him for the
19
Q.
Were you on duty at this time?
20
A.
I was.
21
Q.
Were you wearing a uniform?
22
A.
I was.
23
Q.
You are Officer Stavale's
24
sergeant, correct? LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
19 1
A.
That's correct.
2
Q.
You're his supervisor?
3
A.
Correct.
4
Q.
Was he on shift at the time you
5 6
A.
He was.
7
Q.
You sought out and initiated
8
10:33
this conversation?
9
A.
I did.
10
Q.
Did you tell Mr. Stavale you
11
thought he was wrong about certain things?
12
A.
I told him that I disagreed.
13
Q.
And what was the purpose of this
14 15
10:34
had this conversation?
conversation? A.
Why did you initiate this? Because I did not want him to be
16
present for this deposition and be
17
uncomfortable here.
18
be uncomfortable in a setting not in a
19
deposition.
20
I would rather give you bad news in private.
21
I believe that that would be the -- that
22
that's the best way to conduct business.
23 24
Q.
I would much prefer he
If I'm gonna give you bad news,
Did you tell Mr. Stavale what
aspect of his testimony you disagreed with? LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
20
10:35
1
A.
I don't believe so.
2
Q.
Do you have in your mind a set
3
of facts that were contained within his
4
testimony that you disagree with?
5
A.
Yes.
6
Q.
What is that?
7
A.
During his deposition he had
8
stated that -- during one of the diagram
9
drawings as to the position of the officers
10
and I disagreed with that, with his
11
observation of where he believes people were.
12 13
Q.
15
Which aspect of his sworn
testimony do you disagree with?
14
A.
I'm sorry.
I believe I just
answered that, sir.
16
10:35
No.
Q.
You indicated the positioning of
17
an officer.
18
officer?
19
in sworn testimony do you disagree with?
20
I'm asking for specifics.
Which
Which positioning that he described
A.
I'm not sure which exhibit it
21
was.
22
into the -- being positioned in the street.
23 24
It had he and Officer Johnson walking
Q.
It is, as you sit here today,
Officer Johnson whom you claim Mr. Hebert you LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
21
10:37
1
believed was attempting to do harm to thus
2
necessitating your use of force, correct?
3
A.
4
Officer Johnson.
5
Q.
Mr. Hebert tried to kill
And we'll go through the
6
homicide tape later but you would agree that
7
your initial interview with homicide you
8
originally identified a different officer as
9
the one being threatened by Mr. Hebert thus
10
necessitating force, correct?
11
A.
That's correct.
12
Q.
And your disagreement with
13
Officer Stavale's sworn testimony is that he
14
recalled Officer Johnson being essentially
15
out in the street with him, correct?
16
A.
That's correct.
17
Q.
And therefore not in a position
18
10:37
Yes.
to be of any risk of harm by Mr. Hebert?
19
A.
No.
20
Q.
How is that incorrect?
21
A.
If Officer Johnson was in the
That's incorrect.
22
street, it doesn't necessarily mean that he
23
was not at risk by Mr. Hebert.
24
Q.
Well, we'll go through that more
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
22
10:38
1
detailed when we get to the homicide
2
interview.
3
conversations with Mr. Stavale other than
4
you've described here today?
5
A.
No, sir.
6
Q.
You indicated you have discussed
7
this matter with your wife and friends and
8
family members.
9
time.
10
Let's take those one at a
Can you characterize the conversations
you had about this incident with your wife?
11
A.
12
length about it.
13
You know, she wants to know about my work.
14
don't keep secrets from my wife.
15
marital communications we, you know, talk
16
about all kinds of things.
17 18
10:38
Have you had any other
Q.
Yeah.
I've spoken with her at She asks me how I'm doing.
During our
Did you talk to her about the
facts of the event?
19
A.
Yes, sir, I did.
20
Q.
Have you done so on more than
21
I
one occasion?
22
A.
When she asks.
23
Q.
What have you told her about
24
this litigation? LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
23 1
A.
2
unpleasant it is.
3
anything that is pleasant at all.
4
miserable experience.
5
somebody's life and be sued for it is
6
atrocious and, you know, that's what I've
7
talked to her about this -- about the -- how
8
I feel about this particular litigation.
9 10:39
Q.
It's not, you know, It's a
You know, to save
What about friends and family?
10
You indicated you had discussed this matter
11
with them.
12
10:39
Well, I've told her about how
A.
Well, you know, my friends and
13
family are concerned about me having to be
14
forced to shoot somebody and, you know, I've
15
not talked to anyone about -- at any great
16
length about anything.
17
that I've discussed with them it's, you know,
18
what happened?
19
would you like to me tell about what I tell
20
them?
As far as the facts
Well -- and I -- and I --
21
Q.
Sure.
22
A.
I tell them, well, somebody
23
decided to stab somebody else.
24
stopped by the police.
He was
He tried to kill a
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
24 1
policeman and I was forced to shoot him and
2
that's it.
3
great detail with anyone -- any of my friends
4
or my family members about any of the facts,
5
you know, the -- of the -- of the offense
6
that Mr. Hebert committed and my response to
7
his offense.
8 9 10:40
Q.
Anybody else other than those
individuals you've listed so far that you
10
have discussed this statement with or this
11
circumstance with?
12
A.
No, sir.
13
Q.
Do you know a gentleman named
14
Herb Hood?
15
A.
I know the name.
16
Q.
Who is Mr. Hood to your
17
10:40
You know, I haven't talk in any
knowledge?
18
A.
I believe he's a policeman.
19
Q.
Have you ever spoken with
20
Mr. Hood?
21
A.
Not that I can recall.
22
Q.
Have you ever spoken with
23
Mr. Hood regarding the circumstances of this
24
case? LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
25
10:41
1
A.
Not that I know.
2
Q.
I would point out to you that in
3
the materials provided to us by the city
4
there is an investigation contained by an
5
organization called CCA which I believe is an
6
acronym for the Citizen Complaint Authority.
7
A.
Yes, sir.
8
Q.
Are you familiar with CCA?
9
A.
I am.
10
Q.
Did you discuss the allegations
11
and circumstances of this case with anyone at
12
CCA?
13 14
A. by CCA.
15 16
Q.
A.
No, sir.
I didn't go before any
shooting review board.
19 10:41
How about any sort of shooting
review board?
17 18
I don't recall being interviewed
Q.
Is that standard?
20
me.
21
a circumstance like this.
22
And forgive
I just don't know the protocol following
A.
The firearms discharge review
23
board for the City of Cincinnati reviews the
24
information collected by the homicide unit LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
26 1
during their police intervention
2
investigation and then they came up with a
3
finding based on the information given.
4
officer doesn't -- an officer involved in a
5
shooting doesn't testify before a shooting
6
board.
7
10:42
So it's not a part of the
8
standard protocol that you would write a
9
statement or that an interview would be made
10
or anything like that?
11
A.
For the discharge review board?
12
Q.
Correct.
13
A.
No, sir.
14
Q.
And you did not provide any sort
15
10:42
Q.
An
of statement or interview to them?
16
A.
Not directly to them.
17
Q.
Okay.
No, sir.
As far as interviews
18
conducted by members of the Cincinnati Police
19
Department, is it safe to say that the only
20
interview or statement that you gave was then
21
to the Detectives Hilbert and Gehring in the
22
hours following the event?
23 24
A.
I believe so.
I'm -- it's
been -- it's going on four years now but I LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
27 1
don't -- I -- I believe the only statements
2
that I made were to the homicide unit.
3
10:43
Other than the people we've
4
talked about today, can you recall anyone
5
else that you have discussed the allegations
6
of this circumstance with?
7
A.
No, sir.
8
Q.
How about the night of the
9 10:43
Q.
event, I mean, did anybody approach you:
Any
10
lieutenants, captains, acting chiefs, night
11
chiefs?
12
happened?
13
A.
I mean, anybody come up and say what
The -- the first supervisor that
14
responded that took command of the incident
15
from me was Lieutenant Joe Milek and when he
16
arrived I said, you know, here's the body,
17
you know, there's -- the knife is up here, we
18
have a dog tied over here, the female suspect
19
is in the back of a car.
20
we have police intervention shootings, you
21
know, the responding supervisors that are
22
going to take control of the scene know --
23
you know, we don't ask, well, what happened?
24
What -- what did you do?
But, you know, when
What -- what did
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
28 1
this do?
2
scene of a police intervention shooting we
3
say, okay, where did it happen?
4
okay?
5
officers involved?
6
do our best to secure the scene to await the
7
police intervention team's arrival.
8 9 10:44
10:45
10
When -- when we respond to the
Who are our witnesses?
Q.
Is everybody Who are the
And then we do our -- we
When you say we do our best to
secure the scene, why do you say that? A.
Well, some police interventions
11
are more hectic than others.
12
than others.
13
that I was on on Queen City where it was a,
14
oh, four or five block running gunfight
15
between a suspect and an officer, so to
16
control that scene is very difficult.
17
I'm sure you can understand why I would say
18
we do our best to control that scene because
19
there really is no controlling a six block --
20
six block gun battle.
21 22 23 24
Q.
Some are larger
There was a police intervention
And
This was not a hectic scene,
correct? A.
Once the scene was stabilized,
meaning there no threats, it was not a hectic LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
29 1
Q.
It wasn't in motion?
3
A.
No, sir.
4
Q.
Other than the dog and
5
Ms. Hutchinson, there were no other
6
non-police personnel in the area?
7
A.
That's correct.
8
Q.
There were multiple officers on
scene, correct?
10
A.
Yes, sir.
11
Q.
You say you were able to secure
12 13
the scene without difficulty? A.
There were some logistical
14
issues as far as closing streets down but
15
other than that, no.
16
10:45
No, sir.
2
9 10:45
scene.
Q.
Let's for the purposes of this
17
conversation narrow the focus of the scene
18
to, you know, the immediate incident radius.
19
Not a block away.
20
the scene of the shooting:
21
sidewalk, you know, the immediate area.
22
was under immediate police control as soon as
23
the shooting occurred, correct?
24
A.
Not closing streets.
Just
The tree, the That
Yes, sir.
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
30 1
cooperative?
3
car without incident? A.
I mean, she was placed into a
I don't know if cooperative but
5
she certainly wasn't -- she didn't physically
6
resist being placed in a police car.
7
Q.
Compliant?
8
A.
Compliant would be a good word.
9
Yes, sir.
10
Q.
11
10:46
And Ms. Hutchinson was
2
4
10:46
Q.
So nothing that prevented you
and your officers from securing the scene?
12
A.
No, sir.
13
Q.
Let's take a change of course
14
now and talk a little bit about you.
15
are you as you sit here today?
How old
16
A.
Thirty-five.
17
Q.
What year were you born?
18
A.
In 1979.
19
Q.
And we have throughout this
20
litigation agreed with each officer as a
21
reasonable manner to protect the
22
confidentiality of your personal information
23
not asked your date of birth, Social Security
24
number, or current address on the record with LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
31 1
the understanding that your counsels will
2
always make you present as needed for this
3
litigation.
4
MR. HARDIN:
5
MR. STACKPOLE:
6
MR. LAUFMAN:
7
10:47
10:47
That's correct. That's correct. Does that seem to
be the understanding?
8
MR. STACKPOLE:
9
MR. LAUFMAN:
10
That's correct. Great.
Where did
you grow up?
11
A.
In Cincinnati.
12
Q.
In any particular neighborhood
13
or part of town?
14
A.
On the west side of town.
15
Q.
Any particular neighborhood?
16
A.
Green Township.
17
Q.
You attended high school here?
18
A.
I did.
19
Q.
Where?
20
A.
Oak Hills.
21
Q.
Graduated what year?
22
A.
1997.
23
Q.
And what did you do following
24
your graduation from high school? LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
32 1 2
University. Q.
In Athens, Ohio?
4
A.
Yes, sir.
5
Q.
How long did you attend at
Athens?
7
A.
A year and a half.
8
Q.
What was the reason for your
9
separating from Ohio University?
10
A.
I wanted to come home.
I -- I
11
don't believe I was taking school seriously
12
enough and there were a lot distractions at
13
Ohio University so I chose to come home.
14 15
Q.
What did you do upon returning
to Cincinnati?
16
10:49
I attended school at Ohio
3
6
10:48
A.
A.
I attended school at University
17
of Cincinnati for a brief period of time.
18
believe it was two quarters that I attended
19
there.
20 21 22
I
I went to work. Q.
Where did you go to work after
leaving UC? A.
I worked -- I worked at Skyline
23
Chili from when I was in junior high school
24
until -- and I worked there part-time in LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
33 1
college.
2
worked for a pipe fitting outfit, I worked as
3
a chef, as a restaurant manager, and then I
4
went to work at Home Depot and I worked at
5
Home Depot up until I became a member of the
6
Cincinnati Police Department.
7
10:50
Q.
I
Kind of run back through those
8
very quickly.
9
UC, did your employment at Skyline, which if
Following your separation from
10
I understand correctly had been part-time,
11
become full-time?
12
10:50
I worked at Allstate Insurance.
A.
Yes, sir.
I went to work for
13
the company, the actual corporation Skyline
14
not one of franchise restaurants, and my
15
responsibility was to assist with opening new
16
stores in the Dayton market.
17
in and train from dishwashers to general
18
managers on how to run a Skyline.
So I would go
19
Q.
20
leaving college?
21
A.
About two years I believe.
22
Q.
What was your role at Allstate
23 24
How long did you do that after
Insurance? A.
I was a licensed agent.
I
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
34
10:51
1
worked for Roger Grant Agency.
2
licensed to sell home and auto insurance and,
3
you know, so I would make sales calls, assist
4
our existing clients with changes that they
5
wanted to make to their policy, assist them
6
with claims processing.
7
Q.
How long did you do that?
8
A.
About a year and a half.
9
Q.
Where were you a pipe fitter?
10
A.
I worked as a pipe fitter one
11
summer for Larry Smith Contractors.
12
Q.
Where were you a chef?
13
A.
At Dante's Restaurant.
14
Q.
How long were you there?
15
A.
I was at Dante's for about a
16
year and a half I believe.
17
take.
18 19 10:51
I was
Q.
Year give or
Where were you a restaurant
manager?
20
A.
Same.
21
Q.
So promotion from chef to
22
management?
23
A.
Yes, sir.
24
Q.
How many years were you at Home
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
35 1
Depot?
2
A.
I believe about two.
3
Q.
What year did you attend the
4
academy?
5 6
until March of 2006. Q.
What drew you to police work?
8
A.
Some of my friends that I worked
at Skyline with during high school had become
10
police officers and they really enjoyed it
11
and, you know, I tried just about everything
12
else, you know, like dig -- dug ditches,
13
worked behind a desk, you know, cooked food,
14
did -- you know, worked at -- in home
15
improvement with installations.
16
tried everything else.
17
a shot.
18 19 10:52
In -- from September of 2005
7
9 10:52
A.
Q.
You know, I
I figured I'd give it
Was CPD the only police position
you put in for?
20
A.
Yes, sir.
21
Q.
And is that the only academy
22
you've ever attended?
23
A.
Yes, sir.
24
Q.
How did it come to your
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
36 1 2
10:53
A.
A couple of my friends from
3
Skyline and I went down and took the test
4
together.
5
Q.
6
officers?
7
A.
One did, yes.
8
Q.
Who's that?
9
A.
Kevin Broering, B-R-O-E-R-I-N-G.
10
Q.
He's still with CPD I believe,
11
Any of those guys become
correct?
12
A.
He is.
13
Q.
How did you pick CPD over Green
14
Township or Hamilton County Sheriffs of any
15
of the west side forces, police forces?
16
A.
That's where my friends had jobs
17
and that's where the test was and that's the
18
test that I took.
19 10:54
attention that they were hiring?
20
Q.
Okay.
So you completed the
academy in March of 2006, correct?
21
A.
Yes, sir.
22
Q.
And then you go through the
23 24
field training process? A.
That's correct.
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
37 1 2 3 4
March of '06 until when? A.
It's a 13-week program with
field training officer. Q.
Uh-huh.
6
A.
So from March -- I believe it
was March 6th, 2006 plus 13 weeks.
8
Q.
So approximately April of 2007?
9
A.
That's fair.
10
Q.
And when you clear the field --
11
A.
I'm sorry.
2006.
The FTO
12
program is -- would be -- would have been
13
concluded in 2006.
14
10:54
And what did that run from,
5
7
10:54
Q.
Q.
Thirteen weeks.
Oh, 13 weeks.
I'm sorry.
For
15
some reason I calculated months.
16
recall who your field training officer or
17
officers were?
Do you
18
A.
I do.
19
Q.
Who were they?
20
A.
My primary FTO was police
21
specialist Jeff Wieczorkowski,
22
W-I-E-C-Z-O-R-K-O-W-S-K-I, and my secondary
23
FTO was Police Officer Darwin Gulley,
24
G-U-L-L-E-Y. LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
38 1 2
FTO process, were you assigned to a district? A.
Yes, sir.
4
Q.
Where was that?
5
A.
District three.
6
Q.
And what role did you fill at
district three?
8
A.
I was a police officer.
9
Q.
On patrol?
10
A.
Yes, sir.
11
Q.
Any particular shift?
12
A.
Third shift.
13
Q.
And how long were you a third
14
shift parol officer at district three before
15
any change in circumstances occurred?
16
A.
I was on third shift until the
17
end of 2006 and then I remained in district
18
three as a power shift officer.
19 10:55
Once you were released from the
3
7
10:55
Q.
Q.
And I know there are different
20
hours for those two shifts but what other
21
differences does that bring about?
22
are there any different duties?
23
with different officers?
24
A.
I mean,
Do you work
Third shift and power shift both
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
39
10:56
10:57
1
fall -- I'm sorry.
2
power shift both fall under the blanket of
3
third relief.
4
assigned -- I'm gonna do my best to try to
5
explain it the way that this -- that this
6
works out.
7
officers, let's say 18 of them would be
8
working 11 p.m. to 7 a.m. and they would be
9
designated as third shift and then 12 of them
Third shift and a late
If -- if third relief is
If third relief is assigned 30
10
would be working from 8 p.m. to 4 a.m. and
11
they would be designated as power shift.
12
relief there are typically five sergeants.
13
Three of them would work the late hours and
14
be designated as third shift and then two of
15
them would work the early hours and be
16
designated as power shift.
17
the -- all of the officers fall under the
18
blanket of supervision of all of the
19
supervisors, so it's -- it's really -- and
20
for all intents and purposes it's one relief
21
that's divided into two shifts.
22
lieutenant that's in charge of the third
23
shift and the power shift.
24
sense?
Per
So under the --
There's one
Does that make
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
40 1
Q.
Yes.
2
A.
Okay.
3
Q.
And how long were you on third
4
late power?
5
10:58
Well, I was on third shift from
6
when I graduated the police academy until the
7
end of 2006.
8
Q.
Uh-huh.
9
A.
I was on power shift from the
10
beginning of the first quarter in 2007 until
11
I believe April of 2008.
12
Q.
What happened in April of 2008?
13
A.
I was transferred to district
15
Q.
Still as a patrol officer?
16
A.
That's correct.
17
Q.
If you know, what was the cause
14
18 19 10:58
A.
one.
for your transfer? A.
When new officers are hired the
20
standard practice is to have them be
21
transferred after about three years.
22
mass transfers of newer officers to different
23
districts to have them learn different parts
24
of the city, be engaged in whatever kind of
There's
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
41 1
trending police work is in that district and
2
it also alleviates complacency.
3
used to working in an area you become --
4
there's an opportunity become complacent.
5 6
Q.
How long were you in district
A.
From April of 2008 until
one?
7 8
November of 2010.
9 10:59
Q.
What happened in November of
11
A.
I was promoted to the rank of
12
sergeant.
13
Q.
10
2010?
Let's talk a little bit about
14
the process for becoming a sergeant.
15
explain that to me within the Cincinnati
16
Police Department?
17
10:59
Getting too
A.
Can you
The civil service governs all of
18
the rules for administering tests and -- but
19
they -- you take a test and they certify a
20
eligibility list based on your scores and as
21
a sergeant position opens up they fill it off
22
of the eligibility list.
23 24
Q.
By taking the first available
person? LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
42 1
A.
there's two spots that generate the test
3
they'll promote the first and second position
4
on the eligibility list.
5
position opens up, they'll promote the third
6
person and so forth down the list. Q.
When the next
Help me understand how people
8
get ranked on the list and I understand that
9
civil service controls.
10
12
A.
For the sergeant rank that's the
only aspect of it.
13 14
Is one aspect of
that the test?
11
Q.
Okay.
So it's truly just how
you score on a test?
15
A.
That and seniority points.
16
Q.
Tell me how seniority comes into
A.
Well, the longer that you've
17 18 19 11:00
And there's the -- if
2
7
11:00
Yeah.
20 21
play.
been on the more points you get. Q.
So someone who has been around
longer gets a bump of additional points?
22
A.
That's correct.
23
Q.
How many years had you been on
24
the force at the time you took the test and LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
43 1
sought the promotion?
2 3
A.
Q.
A.
I would -- based on the amount
7
of people in the room I would guess there to
8
be upwards of 120, 130 people that took the
9
test.
10 11
Q.
13
A.
There were two vacancies at the
time of the test.
14 15
And how many positions were
available at that time?
12
Q.
And you ultimately received one
of those vacancies?
16
11:01
Do you recall or do you know how
many other individuals took the test?
6
11:01
Three
and a half, four years.
4 5
Well, about four years.
A.
No, sir.
At the time of the
17
test there were two vacancies.
18
eligibility list is -- it stands for one
19
year.
The
20
Q.
Uh-huh.
21
A.
So throughout the course of that
22
year when positions open another person will
23
be promoted off of the list.
24
Q.
When the list came out what
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
44 1
number were you?
2
A.
Number five.
3
Q.
Is four years relatively short
4
period of time to become a sergeant in the
5
Cincinnati Police Department?
6
A.
It depends.
7
Q.
On?
8
A.
Well, there's some officers that
9 11:01
11:02
have one year of experience but they've
10
gotten that one years of experience 20 times.
11
You know, if you do the same thing every day
12
and don't do anything different, you don't
13
learn anything so you can -- you can be on
14
the job for 20 years and only have, you know,
15
a couple of years of experience because of
16
the work that you've done.
17
six months and have a year and a half of
18
experience depending on how much you -- you
19
do.
20
necessarily equate to experience but, you
21
know, I -- I don't know if that answered your
22
question or not.
23
Q.
24
You can be on for
So the tenure in position doesn't
Certainly.
I mean, I -- I guess
putting it in my world, you know, I mean, LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
45
11:03
11:03
1
there are lawyers who do the same sort of
2
small thing their entire lives and maybe
3
they're never gonna get any better at it and
4
there are people who, you know, go out and
5
really try to better themselves and improve
6
and practice law in the best way they
7
possibly can and I think those are different
8
individuals.
9
somebody who has 35 years of, you know,
I would agree with you that
10
sitting in an office making wills might not
11
have, you know, as much experience as
12
somebody who spent five years, you know, in
13
every courtroom in the land arguing every
14
case they can find.
15
of figure out if, you know -- I mean, is that
16
a matter of personal pride for you?
17
were you a younger sergeant?
18
anybody with fewer years of seniority than
19
you who made sergeant?
20
A.
Yeah.
I'm just trying to sort
I mean,
Do you know of
There -- and there are
21
certainly sergeants that have been or people
22
that have been promoted to sergeant with less
23
time on than what I had when I was promoted.
24
I -- it was no feather in the cap that I was LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
46 1
looking to have or no point of pride that,
2
you know, oh, I -- I've been on for three
3
years and now I've been able to get promoted
4
and, you know, it was -- it was time for me
5
to make a change.
6 7 8 9 11:03
11:04
Q.
Is there any additional training
provided to you to become a sergeant? A.
Cincinnati Police Department
conducts what they call sergeant school or --
10
or new supervisor's training.
11
believe the training lasts for, you know, two
12
or three weeks.
13
it explains how to complete supervisory
14
reports but it -- and it's -- it's nothing
15
that's very intense or there's no leadership
16
training or anything like that.
It -- I
It's all classroom based and
17
Q.
Any training to take the test?
18
A.
Studying.
19
Q.
That's self study?
20
A.
Correct.
21
Q.
What are the topics on the test?
22
A.
The -- the test covers
23
information from the Cincinnati Police
24
Department procedure manual, the manual of LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
47
11:05
1
rules and regulations, investigatory manual,
2
tactical patrol guide and then there's
3
typically between three and five books that
4
are selected to be on the reading list that
5
they take questions from.
6
Q.
7
the test?
8
A.
Well, I scored number five.
9
Q.
Well, there would have been a
10
little bump in there somewhere for seniority?
11
A.
I didn't get seniority points.
12
I hadn't been on long enough to earn any
13
seniority points.
14
11:05
Safe to say you did very well on
Q.
Gotcha.
So your number five
15
spot to your understanding was truly because
16
of the approximately 120 people in the room
17
you got the fifth highest score?
18
A.
That's correct.
19
Q.
And during the tenure that that
20
list was active that year period when a
21
sergeant spot came open you got the fifth
22
one?
23
A.
That's correct.
24
Q.
So you became a sergeant in
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
48 1 2
A.
Yes, sir.
3
Q.
What did you do then?
4
A.
I was assigned to district five,
5
Q.
7
position?
8
A.
I'm still -- I'm currently
Q.
So you've been there that entire
10 11
11:06
third relief.
6
9 11:06
November of 2010?
And how long did you hold that
there.
time including the day of the incident?
12
A.
That's correct.
13
Q.
We learned during a previous
14
deposition that district five is broken into
15
various beats and areas of responsibility.
16
Is that an accurate understanding?
17
A.
District five has four beats.
18
Q.
Can you explain those to us?
19
A.
Beat one is Clifton, Fairview,
20
University Heights.
21
district of Clifton and part of the
22
stockyards as well as Camp Washington.
23
three is north side, Spring Grove Village,
24
Winton Terrace.
Beat two is the gaslight
Beat
And beat four is College
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
49 1 2
11:08
Q.
So individual officer --
3
individual patrol officers are generally
4
assigned to a beat.
5
statement?
6
11:07
Hill and Mount Airy.
A.
Is that a fair
In district five we have -- we
7
assign our officers -- we have a traffic car
8
that -- that handles crashes and conducts
9
traffic enforcement.
At the beginning of my
10
tenure in district five we had what was
11
called the 90 series cars.
12
assigned to Clifton and the University
13
Heights area to prevent or to help robbery
14
prevention, but, however, they were also
15
utilized in other areas as needed and then
16
the remainder of our officers were assigned
17
to a beat.
18
day and had the same car number or we -- we
19
call them car numbers but a radio signal, you
20
know, your -- your -- the -- your numerical
21
indicator for the radio transmission, you
22
know, and they would maintain that name
23
number every day.
24
that, you know, one day would work beat two,
They were
Some maintained their beat every
There were some officers
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
50 1
the next day they'd work beat four.
2
would, you know, just cover as needed.
3
assigned district five third relief.
5
distinction between whether you were on power
6
shift or just thirds or how did that break
7
down for sergeants?
9
A.
Any
Well, with -- with sergeants the
way that it worked was if -- you know, we had
10
two -- two of our sergeants that were
11
assigned to work the early -- the early hours
12
which would be power shift.
13
our sergeants that were assigned to work late
14
which is third shift but there are many times
15
that, you know, a power shift supervisor
16
would have to work third shift and the third
17
shift supervisor would have to work power
18
shift, but I typically worked third shift.
19 11:09
You indicated that you were
4
8
11:08
Q.
They
Q.
We had three of
So your work typically -- and I
20
understand there's staffing needs.
21
calls in sick, there's a vacation, schedules
22
have to be shifted, but there was a standard
23
schedule that you typically followed,
24
correct?
Someone
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
51 1 2
A.
from 2300 to 0700.
3 4
And you were then one of the
three sergeants on third shift? A.
Correct.
6
Q.
And again I understand there's
7
certain variances.
8
two.
Some days there may be
There's a lieutenant covering -A.
Well, and again we all -- the --
10
the power shift and the third shift all fall
11
under the blanket of third relief.
12 13
11:10
Q.
11 p.m. to 7 a.m.
5
9 11:09
My -- my normal duty hours were
Q.
Uh-huh.
How did those three
sergeants break up supervision of the beats?
14
A.
15
same day.
16
would be one power shift boss and one third
17
shift or two third shift bosses working and,
18
you know, we're -- our responsibilities were
19
district wide.
20
I'd -- we didn't assign, you know, this
21
sergeant's gonna take this beat, this
22
sergeant's gonna take that beat.
23
we -- our responsibilities are district wide
24
and we respond as we're needed.
Well, we didn't all work on the So, you know, typically there
So we didn't -- you know,
You know,
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
52 1
11:11
So on the average night you
2
would be the sergeant for district five.
3
There would be one boss on covering district
4
five for third shift?
5
11:10
Q.
A.
Well, we would have two
6
supervisors:
7
third shift --
One for power shift and one for
8
Q.
Okay.
9
A.
-- and the hours overlap.
10
Q.
Understood.
11
A.
At -- at -- at 0400 when the
12
power shift boss would go home then the third
13
shift boss would be the district officer in
14
charge from 0400 until 0600 when first shift
15
boss would come in.
16
Q.
Gotcha.
17
A.
You know, which the supervisors,
18
you know, we all have to work as a team to
19
cover the entire district.
20
Q.
During that then sort of bulk of
21
the night when there's typically two
22
sergeants available, the power sergeant and
23
the third shift sergeant, would those two
24
sergeants ever have an understanding or LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
53 1
acknowledgment of, hey, you kind of cover one
2
half of the beat and I'll cover the other
3
half?
4
11:11
Sometimes.
You know, the --
5
district five we typically break things up as
6
north end and south end.
7
Q.
Uh-huh.
8
A.
North end being beats three and
9 11:11
A.
four.
South end being beats one and two.
10
And there were some nights where you would --
11
you know, where a -- a boss -- one sergeant
12
would say to another sergeant, hey, you know,
13
I'll cover the north end, you want to cover
14
the south end but, you know, even -- even if
15
you have a plan to say, hey, I've got the
16
north end, you've got the south end it
17
certainly doesn't mean that I'm not gonna be
18
responding to the south end and that he's not
19
gonna be --
20
Q.
Sure.
21
A.
-- responding to the north end.
22
Q.
Need always overrides.
23 24
I'm just
sort of thinking about efficiency I guess. A.
It's -- with the supervisory
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
54
11:12
11:12
1
responsibilities, you know, we're not
2
dispatched to, you know, 20 noise complaints
3
a night or, you know, domestic situations or
4
neighbor problems or things like that.
5
know, we're dispatched to robberies,
6
shootings, stabbings, rapes, breaking and
7
enterings, fatal crashes, serious injury
8
crashes --
You
9
Q.
More serious events.
10
A.
Things that would necessitate
11
supervisory monitoring.
12
certainly have the option to show up on
13
whatever run that we choose to show up on
14
but, you know, we're not dispatched like
15
patrol officers are, so it's not a matter of
16
efficiency, you know, being in this area
17
because I'm going to be dispatched into this
18
area because certainly even if I tell the
19
other supervisor I'm gonna be running the
20
north end, the dispatcher may send me to a
21
run in the south end because there's no
22
official designation.
23
dispatcher sends me somewhere and I go.
24
we don't -- we don't really break it up as
You know, we
It's, you know, So
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
55 1
far as patrol responsibilities.
2
Q.
3
typically be supervising on a standard third
4
shift night in district five?
5
11:13
A.
Usually I believe there were
6
between six and seven officers that would be
7
on duty for power shift and another six or
8
seven officers that would be on duty for
9
third shift so, you know, if people call off
10
sick you'd have at about a minimum of ten or
11
11.
12
have as many as 15 or 16.
13
If everybody came to work, you could
Q.
Again, that's during the
14
overlapping period when both power and third
15
are there?
16 17 18
11:14
How many officers would you
A.
Yeah.
The majority of both
shifts overlap. Q.
How large of a pool of
19
individuals were you responsibile for?
20
mean, I assume there's a series of officers
21
assigned to third shift that you would
22
monitor.
23 24
A.
I
The -- the third relief had 35
officers assigned and that includes power LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
56 1
shift and third shift.
2
for timekeeping purposes and accounting
3
purposes and scheduling purposes it all falls
4
under one blanket.
5 6
power and sergeants for third shift, correct? A.
Yes, sir.
8
Q.
I'm just trying to figure out
the chain of command.
I mean, I understand
10
when we're out on the -- the street need
11
requires you to go and you go and you perform
12
your duties but was there a set group of
13
officers who were directly under you in the
14
chain of command?
15
11:15
But there were sergeants for
7
9 11:14
Q.
Again, it's -- we --
A.
I think -- let me -- let me try
16
to explain this more clearly.
17
that all power shift and third shift is one
18
shift.
Let's just say
19
Q.
Third relief.
20
A.
Everybody is third relief.
Now,
21
of the -- you know, let's say I have 30
22
officers assigned.
23
of them start work at 11 p.m. and 12 of them
24
start work at 8 p.m.
Of those 30 officers, 18
Okay?
So it's -- I
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
57 1
have, you know, these 30 officers on my
2
relief and almost half of them work from 8:00
3
to 4:00 and the majority of them work from
4
11:00 to 7:00 but it's all one -- it's all
5
one unit.
6
earlier.
7
11:15
Q.
Gotcha.
It's those 35 officers
8
that on a day-to-day basis you are
9
responsible for supervising?
10
A.
On a day-to-day basis, yes, sir.
11
Q.
And you would see all of them in
12
various ways and times?
13
11:16
It's just some of them work
A.
Some -- some much more
14
frequently than others.
15
rotating off-day schedule.
16
day groups.
17
see somebody in group three much more than I
18
would see somebody in group six.
19
being, my off days would be group six's
20
workdays and their workdays would be my off
21
days.
22
three then I would see them every workday
23
because we're in the same off day.
24
the same rotating off-day group.
We work on a We have seven off
If I'm in group three I would
Reason
You know, if somebody is in group
We have Does that
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
58 1
make sense?
2
At the time of the
incident -- and I think we understand what
4
the incident is.
5
was shot.
6
A.
Yes, sir.
7
Q.
Okay.
The night that Mr. Hebert
So whenever I say the
incident you know what I'm referring to.
9
A.
Okay.
10
Q.
On the night of the incident,
11
what was Officer Kneller's shift assignment?
12 13
A.
He was assigned to power shift
so he would have worked from 8 p.m. to 4 a.m.
14
Q.
And do you know his off-day
16
A.
I have no idea.
17
Q.
How about Officer Johnson?
18
A.
I have no idea.
19
Q.
How about Officer Johnson's
15
11:17
It does.
3
8
11:16
Q.
20
group?
shift assignment?
21
A.
Power shift.
22
Q.
And how about Officer Stavale?
23
A.
He was assigned to third relief
24
or third shift. LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
59 1 2 3
11:18
Were these all officers whom you
worked with regularly? A.
I had been assigned to district
4
five from, you know, the end of November
5
until -- this was -- occurred in the
6
beginning of April so only a few months.
7
11:17
Q.
Q.
But for those periods of months
8
were these officers whom you worked with
9
routinely?
10
A.
Yeah, I worked with them.
I'm
11
not sure if we were in overlapping off-day
12
groups or congruent off-day groups or
13
opposing off-day groups.
14
that Officer Johnson and Kneller were
15
assigned to power shift so I would not see
16
them at roll call because I would not be
17
attending power shift roll call.
18
attending the third shift roll call and they
19
would be attending power shift and not third
20
shift and that's -- you know, that's where I
21
got to know most of the officers is, you
22
know, during roll call.
23
see them out in the field but, you know, I
24
didn't -- the -- the most time I spend with
You know, I know
I was
You know, I would
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
60
11:18
1
the officers is in roll call or in -- or
2
while securing the relief at the end of the
3
shift, so I didn't spend as much time with
4
them as I spent with Officer Stavale.
5
Q.
Let's talk a little bit about
6
training.
You went through the Cincinnati
7
Police Department's Academy and I think
8
you've already testified that that was the
9
only academy that you have attended, correct?
10
A.
That's correct.
11
Q.
What training have you received
12
since you have been a Cincinnati Police
13
Officer?
14
11:19
A.
A lot.
For me to give you an
15
exact, I'd have to look at my personnel
16
jacket.
17
training that's maintained.
18
we attended inservice annual firearms
19
qualifications, various training, you know,
20
such as customer service training, stress
21
identification management, training for
22
super -- you know, supervisory inservice.
23
There -- there's all -- all kinds of training
24
that the department comes out with that we're
There's, you know, a list of But, you know,
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
61
11:20
1
required to take.
2
requirements by the state.
3
requirements by the Fed.
4
voluntary that we -- you -- you can ask to
5
take.
6
training.
7
took at the Southern Police Institute
8
administered by the University of Louisville.
9
It was their administrative officers course
10
that I attended but I just -- a -- a lot of
11
training.
12
Q.
Some are Some of them are
You know, there -- there's a myriad of There's leadership training that I
Referring for a moment to that
13
training at the University of Louisville.
14
When did that occur?
15 16
11:20
Some -- some are
A.
That was the fall of 2012 I
believe.
17
Q.
18
training?
19
A.
And what was the nature of that
It's -- the University of
20
Louisville has the -- it's -- they maintain
21
and operate the Southern Police Institute.
22
The administrative officers course is -- it's
23
a -- it's a residential program.
24
weeks where you actually live there and
It's 12
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
62 1
attend classes every day and it's a -- it's a
2
leadership course.
3
leadership practices, leadership theories,
4
policing theories, police history.
5
it's a -- it's actually a -- a -- what's the
6
best way to describe it?
7
that's the gist of the training.
8 9 11:21
11:22
10
Q.
It teaches, you know,
It's a --
But that's -- but
And you spent that entire period
of time at the University of Louisville in that training.
Successfully completed it?
11
A.
Yes, sir.
12
Q.
Let's focus then on some more
13
narrow areas of training and help me use
14
words that we both understand.
15
ideas that I'm gonna try to get to.
16
will refer to as tactics.
17
how to deal with a physically confrontational
18
situation if I'm using the correct words.
19
You know, how to deal with individuals who
20
are resisting.
21
who have or might have a weapon.
22
that nature.
There are two One I
Just the idea of
How to deal with individuals Things of
Okay?
23
A.
Tactics.
24
Q.
Is tactics a fair word?
Okay. Can we
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
63 1
agree on that or suggest a better one if you
2
prefer?
3 4 5
11:22
No.
I -- tactics -- tactics is
a fair -- a fair word for that. Q.
The other is -- and I would, I
6
guess, include tactics to include the use of
7
non-deadly force.
8
the use of chemical spray, you know, the use
9
of handcuffs, the use of hands.
I mean, the use of tazers,
You know,
10
soft hands, hard hands.
11
necessary to control a circumstance.
12
with me so far?
13
A.
Yes, sir.
14
Q.
Okay.
You know, everything
have the use of deadly force.
16
we engage the use of firearms.
17
training.
18
A.
20
You
And then beyond that we
15
19 11:22
A.
I mean, where Firearms
Things of that nature. And you're including that with
tactics? Q.
No.
I'm creating a new
21
sub-division.
22
being sort of everything below that and then
23
at some point we get into firearms training
24
and the use of deadly force.
I'm saying we have tactics as
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
64 1
11:23
11:24
A.
If -- if we're talking about --
2
maybe a -- a better way to break this apart
3
would be tactics which is how you handle
4
situations and then proficiency which is how
5
you use a firearm, how you use a tazer and --
6
because shooting -- you know, firearm
7
proficiency shooting at a target range isn't
8
the same as tactics.
9
Q.
Uh-huh.
10
A.
So dealing with a scenario would
11
be tactics.
12
shotgun or a rifle or whatever would be
13
proficiency.
Learning how to use a pistol or
14
Q.
Okay.
15
A.
And -- because we don't train
16
to -- we don't train for scenarios at the
17
target range.
18
putting a site picture and trigger press and
19
proficiency with the firearm.
We just practice, you know,
20
Q.
Okay.
21
A.
Does that make sense?
22
Q.
It does.
And let's start
23
talking about it and see if, you know, we can
24
develop an understanding.
What I'm gonna try
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
65
11:24
1
to figure out is sort of how the Cincinnati
2
Police Department trained you to handle
3
tactical circumstances like the one you found
4
yourself in on this night and so I want you
5
to be able to talk about the training you
6
received, you know, either from classroom to,
7
you know, physical hands on to, you know,
8
discussions of just how to control a
9
circumstance all the way up sort of the chain
10
and up through the continuum of force to
11
reaching the shoot/don't shoot decision.
12
MR. HARDIN:
13
objection to the form of the question.
14
may answer.
15
MR. LAUFMAN: it was a question.
17
going to attempt to ask him about.
I told him what I was
MR. HARDIN:
Well, there's a
19
phrase in there you used that I have to
20
object to.
21
MR. LAUFMAN:
22
MR. HARDIN:
23
You
I don't know that
16
18
11:25
Just gonna be an
I was trying to -You said he needed
to understand the question.
24
MR. LAUFMAN:
I was trying to
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
66 1
give you a background statement on the types
2
of information I was seeking so that as I
3
asked you future questions you could
4
hopefully provide answers which fell within
5
that realm.
6 7
A.
I'd be delighted to answer.
8 9 11:25
Q.
Okay.
Well, let's -- you know,
so understand that as we talk about
10
training -- I mean, I understand there's
11
report writing, there's, you know, customer
12
relation, there's a million things that
13
aren't related to this case.
14
agree?
15
11:26
Any question that I understand
A.
Would you
I'd -- you're asking me if I
16
agree that there are a million things that we
17
were taught that don't relate to this case?
18
Q.
Yes.
19
A.
I'd -- there -- there are
20
several things that we've been trained on
21
that, you know -- yeah.
22
diversity or how to write a traffic ticket
23
doesn't apply to this.
24
Q.
There's cultural
Right.
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
67 1
A.
Things -- yeah.
2
Q.
So what -- what I'm trying to do
3
11:26
11:26
is narrow my questions, you know, --
4
A.
Okay.
5
Q.
-- when I -- because I sort of
6
said, you know, tell me about what training
7
you've received since the academy and you
8
said, oh, you know, there's been a ton,
9
there's been a lot, I'd have to look at my
10
file.
I'm trying to narrow that down --
11
A.
Okay.
12
Q.
-- and say let's talk about
13
training related to tactics, the use of
14
deadly force, the use of firearms, things of
15
that nature.
16
A.
Okay.
17
Q.
You with me?
18
A.
Yes.
19
Q.
Let's start with the academy.
20
Tell me about how the Cincinnati Police
21
Department Academy trains a recruit soon to
22
be a future offer -- officer to handle
23
tactical situations in the field.
24
A.
Classroom instruction is, you
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
68 1
know, the -- one of the foundations for that.
2
There's a class that's called stops and
3
approaches.
4
for, you know, building a -- for building
5
your knowledge as far as, you know, what
6
tactics to use.
7
training defensive training, that's a
8
significant portion of the police academy.
9 11:27
11:28
That's one of the fundamentals
There's the PT/DT, physical
You know, sometimes you, you
10
know, run for -- they make you run for six
11
miles and do a hundred push ups and sometimes
12
you'd do ground fighting.
Sometimes you'd
13
practice using the baton.
Sometimes you
14
practice with simunitions which is a -- it's
15
a -- it's fire -- it's a -- it's a -- a gun
16
powder operated gun that shoots plastic soap
17
rounds that are -- you know, that are -- it's
18
like -- kind like a paint ball.
19
sometimes you use -- you know, you just run
20
through problem solving scenarios with, you
21
know, with the academy staff.
22
pretend to be a, you know, drunk person or an
23
angry person or, you know, just put you in
24
possible scenarios and, you know, you
You know,
They'll
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
69 1
practice and, you know, you typically fail
2
but, you know, just -- they just try to put
3
you in as many as close to real life
4
situations as they can and help you get
5
through it.
6 7 8 9 11:28
10 11 12 13
How much of the academy is spent
doing that type of training? A.
I -- I don't know.
A lot but I
don't -- I couldn't give you a percentage or a breakdown of hours. Q.
Is it a week?
Is it half? A.
Is it a month?
Is it most? Well, it's not -- it's not --
14
you know, it wasn't for a, you know, week we
15
do this, for a week we do that.
16
know, we had a schedule and for an hour a day
17
here we do this and for an hour a day here we
18
do that.
19 11:29
Q.
20 21
It was, you
I have -- I have no idea.
Q.
How about that type of training
since you've been out of the academy? A.
At inservice.
Inservice is
22
typically -- or is two days.
23
they're consecutive days.
24
have a -- one of your days in April and your
Sometimes
Sometimes you'll
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
70 1
day two in October.
2
generally speaking one day is designated for
3
scenario-based training, tactic training. So of an eight hour day -- you
5
know, once a year for an eight hour day you
6
spend maybe four hours actively refreshing on
7
tactics and things of that nature.
9
Q.
Tell me about those.
I mean,
tell me about that four-hour portion that's
10
focused on tactics.
11
understand what that looks like, what it
12
encompasses, what you do.
13
11:30
But
4
8
11:30
Excuse me.
A.
I mean, help me
It -- it really -- it changes.
14
You know, we don't do the same thing every
15
year because then you wouldn't be learning
16
anything.
17
every year.
18
where, you know, they'll focus on, you know,
19
strikes so you'll spend an hour down in the
20
gym doing, you know, practicing elbow strikes
21
or knee strikes or ground fighting.
22
know, they'll, you know, help you -- they'll
23
run you through our firearms training
24
simulator which is a big video screen with --
They try to do different things There will be a -- a period
You
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
71
11:31
1
you know, where you -- you know, you can --
2
you know, it's a -- it plays a scenario.
3
They have thousands of scenarios on this
4
machine that are supposed to depict real life
5
situations and you respond and react
6
accordingly and sometimes they do --
7
sometimes they make you do push ups and sit
8
ups.
9
there's real -- there's no real during these
10
hours we do this.
11
hours we do whatever the academy staff feels
12
that we need to do.
13 14 15
11:31
You know, it's -- and there's --
Q.
It's we -- during these
Are stops and approaches ever
part of that inservice training? A.
They -- some of the same type of
16
material is taught, if memory serves, from
17
what was taught in the academy but in the
18
academy the actual name of the course,
19
because we had to put all of our notes and
20
whatnot into binders, was categorized as
21
stops and approaches and that was the name of
22
the course.
23
you know, or -- and one was, you know,
24
dealing with mentally disturbed people and
You know, one was legal updates,
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
72 1
they're -- the recruit binders typically take
2
two to four three-inch binders and they're
3
full.
4
kinds of courses and all kinds of classes but
5
stops and approaches was a big portion of the
6
academy.
7
11:32
Q.
Other than the inservice
8
training that you've described, have you
9
received any other training on the issues of
10
tactics, stops and approaches, the use of
11
deadly force other than what you've already
12
testified to?
13
A.
I'd have to look at my
14
training -- my training log.
15
there's the inservice, there's firearms
16
training, there's patrol rifle training.
17
don't know.
18
to my training log.
19 11:33
So when there's -- and there's all
Q.
I don't know.
And there's --
I
I'd have to refer
Throughout this case the city
20
has produced various documents to us.
21
them described the education at the
22
University of Louisville but described that
23
as deadly force training.
24
force training as a part of that?
One of
Was there deadly
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
73
11:33
1
A.
At the University of Louisville?
2
Q.
Yeah.
3
A.
No, sir.
4
tactical course or there was nothing tactical
5
about that course.
It was --
6
Q.
It was leadership.
7
A.
Yes, sir.
8
Q.
No tactics?
9
A.
Correct.
10
Q.
So your involvement in that
11
training component was not in any way related
12
to this incident?
13
A.
No, sir.
Actually put in for
14
the training at the University of Louisville.
15
It's -- and it's -- it's -- it's actually --
16
it's -- it's a prestigious class and to be a
17
part of that and I was -- I felt very honored
18
that they allowed me to attend.
19 11:34
It was -- it was not a
20 21
Q.
Have you ever done any
instructing? A.
I -- I assist with the recruits
22
at the target range.
23
supervisor for my relief, so as part of that
24
when the -- when the -- when officers
I'm the field training
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
74
11:35
1
graduate the academy they're assigned to a
2
field training officer and I'm the field
3
training supervisor so I review the
4
instruction given to them by the officers and
5
step in and assist where needed, but then
6
also I was given the opportunity to attend
7
the most recent recruit classes firearms
8
training to assist them with, you know,
9
scenario-based training and things along that
10 11
Q.
When was that?
12
A.
That was actually just in
13
11:35
line.
October I believe.
14
Q.
That's the current class --
15
A.
That's correct.
16
Q.
-- that's going on right now?
17
A.
Correct.
18
Q.
When you say security or, I'm
19
sorry, scenario-based training, what do you
20
mean by that?
21
A.
The academy comes up with
22
scenarios and the field training officers who
23
go out to the target range act as role
24
players in those scenarios.
So the recruits,
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
75
11:36
1
you know, in -- either by themselves or as a
2
partnered unit would go respond and handle
3
the scenario as if it was a call to service
4
and the role players would enact the scenario
5
as prescribed by the academy staff and then
6
afterwords there would be a debrief where you
7
would talk about some of the things they did
8
well, some of the things they need to improve
9
on and, you know, that kind of thing.
10
So these are actually
11
circumstances where people are acting out
12
real life scenarios?
13
A.
Correct.
14
Q.
So they are not live fire
15
11:36
Q.
exercises?
16
A.
Oh, no.
17
Q.
Do the recruits fire anything?
18
Is this where they use the simulated
19
ammunition?
20
A.
No, sir.
Well, yeah.
That --
21
sometimes they use -- we use simulated
22
ammunition depending on what the scenario is.
23
Sometimes we just use, you know, the
24
plastic -- the red guns -LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
76 1
Q.
Uh-huh.
2
A.
-- training -- training guns.
3
Q.
Uh-huh.
4
A.
It really depends on what the
5 6
11:37
Q.
Can you give me an example?
I
7
mean, I've just never been through anything
8
like that.
9
through a typical simulation that might be
10 11
11:37
scenario is and what it calls for.
Can you talk me through one,
run or you can recall having run? A.
There's the -- there's one
12
scenario where the recruits will be
13
dispatched to -- you know, as a partnered
14
unit they'll be, you know, dispatched to a
15
call for service regarding a possible drug
16
transaction happening on the east side of the
17
range house.
18
door and have to find it, you know, identify
19
it and handle it.
20
if -- if the officers are, you know, vigilant
21
and, you know, requesting to see the
22
subject's hands and, you know, tactically,
23
you know -- you know, making good tactical
24
decisions then sometimes the event will, you
So they'll walk out the front
You know, there -- and
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
77
11:38
11:38
1
know, result in the role players to just, you
2
know, be proned out on the ground and submit
3
to arrest.
4
role players producing a firearm and, you
5
know, pretending to shoot the -- at the
6
officers to teach them to get to cover and
7
concealment and -- or, you know, in some
8
cases just to get them to pull their gun out
9
of the holster and -- and point at the bad
Sometimes it ends up with the
10
guy.
11
part of the -- part of the training to
12
prepare to be a police officer is preparing
13
someone for the fact that they might have to
14
pull their gun and point it at somebody and
15
pull the trigger.
16
there's an aversion to that.
17
not a natural thing to do so there's a
18
training process that -- that helps
19
facilitate that if need be.
You know, it's -- it's not a, you know,
20
You know, and there's a -You know, it's
There's scenarios where it's --
21
the role player's supposed to be a -- a
22
mentally disturbed person who's threatened
23
suicide and the information provided to the
24
recruits before they go to the run is that LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
78
11:39
11:39
1
there's a person at the back of the range
2
house screaming that he wants to kill himself
3
and so the role player's supposed to, you
4
know -- you know, portray that they're a
5
mentally disturbed person and, you know,
6
sometimes that scenario is where the person
7
charges at the police officers.
8
you know, he charges at them with his hands
9
up.
Sometimes,
Sometimes he charges at them with a
10
knife.
11
gun.
12
if there were only a million and six things
13
that could possibly happen we would teach
14
people every million and six but there's an
15
unlimited amount of scenarios and even though
16
it's the same place, same time, same house,
17
same guy, same problem, same information, we
18
try to teach them that, you know, you respond
19
to the same guy for this and it happen -- you
20
know, the incident unfolds this way.
21
know, you get dispatched there tomorrow for
22
the same stuff it might be totally different.
Sometimes he charges at them with a It's all -- you know, there's -- if --
23 24
You
So there's -- there's just -they try to -- they try to touch on LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
79 1
everything that could possibly happen but
2
there's -- there's no way that they can do
3
that.
4
11:40
And what you're referring to
5
still is your involvement in the scenario
6
based training that just went on with the
7
current recruit class?
8
A.
That's correct.
9
Q.
And was your role in that
10
training process as a role player or as an
11
instructor?
12
A.
As a role player.
13
Q.
Would you take part in any of
14
11:40
Q.
the instruction given to the recruits?
15
A.
Yes, sir.
16
Q.
In what manner?
17
A.
You know, we would debrief them,
18
critique them on how they're doing.
19
the time at the target range we spent a lot
20
of time showing them how to safely search
21
people.
22
instructed them on the police alphabet, you
23
know, Adam, boy, Charles, David, Edward.
24
know, instructed them on how to complete
During
You know, we instruct -- I
You
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
80 1
reports, how to complete traffic tickets.
2
You know, so I provided instruction on many
3
different things but, you know, I'm not a
4
academy instructor.
5
Q.
proficient enough in the topic of tactics to
7
go out and be part of the training of those
8
skill sets to the current academy class?
10
A.
12 13
I'm sorry.
Would you repeat
that?
11
MR. LAUFMAN:
Can you read it
back? (Record read by Reporter.)
14
A.
That's correct.
15
Q.
And others do as well.
16
I mean,
you were asked to be a part of that, correct?
17
A.
Yes, sir.
18
Q.
That's not something you showed
19 11:41
But you feel
6
9 11:41
Understood.
up and volunteered to do.
20
A.
That's correct.
21
Q.
You indicated that you are
I was asked.
22
currently the field training officer
23
supervisor.
24
A.
Do I have that correct? I'm the fielding training
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
81 1 2
Okay.
And that means you
oversee the field training officers as they
4
go through the 13-week process with their new
5
trainees?
6
A.
8 9
That -- that's -- that's
correct. Q.
Have you ever served as a field
training officer?
10
A.
No, sir.
11
Q.
And is that supervisory position
12 13
part of your duties as a sergeant? A.
I'm the field training -- I'm
14
a -- the field training supervisor because
15
I'm a sergeant.
16
can't be the field training supervisor.
17
11:42
Q.
3
7
11:42
supervisor.
Q.
You -- a police officer
And is your involvement in the
18
field training supervision hands on or more
19
administrative?
20
that, you know, course work is being covered
21
appropriately or are you out there taking an
22
active role in the training of the officers?
23 24
A.
I mean, do you look to see
Well, both.
The sergeants'
position -- the sergeants' position in LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
82
11:43
1
general as it pertains to daily operations is
2
both administrative and field supervisory and
3
the same goes for the field training
4
supervisory role, you know, I ensure that the
5
field training officer is conducting all the
6
necessary training with the field training or
7
with the recruit and I make sure that the
8
paperwork's completed.
9
own reports based on my observations.
I have
10
to ride with each probationary officer and
11
observe them in the field and then also, you
12
know, to make sure that the officer is, you
13
know, being or acclimating themselves to the
14
police job.
15
11:44
I have to fill out my
You know, a field training
16
supervisor has responsibility to be in the
17
field and observe the probationary officer
18
because I think that -- I think that in order
19
to make an opinion on whether or not a
20
probationary officer is performing up to the
21
standards of Cincinnati Police Department you
22
actually have to observe it so I -- you know,
23
I personally, you know, do my best to make
24
radio runs that the FTO and the probationary LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
83 1 2
11:44
11:45
officer go to just to observe. Q.
So you'll make it a point to
3
observe the field trainees involved in the
4
same type of tactical situations as you'll
5
assist recruits with at the academy?
6
A.
You're asking me if --
7
Q.
Let me rephrase the question.
8
A.
Thank you.
9
Q.
I think I've -- I've finally
10
asked one that didn't make sense to you.
11
What we were talking about moments ago was,
12
you know, you go into the academy helping
13
out, involving in role playing where the -- I
14
guess, what's the correct role for somebody
15
at the academy?
A recruit?
16
A.
A recruit.
17
Q.
Okay.
Yeah.
Where the recruits are
18
engaged in mock situations.
19
to those two guys that might be dealing
20
drugs, you know, let's see how you handle it.
21
You watch them.
22
What I'm trying to figure out is are you
23
seeking to observe the infield training
24
officers doing those same types of things in
You guys walk up
You then critique them.
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
84 1
the field except now it's a real life
2
situation and as a supervisor you're sitting
3
back to watch how they handle it?
4
11:46
11:46
A.
In the field in -- in real life,
5
you know, the probationary officers are
6
certified police officers.
7
know, and they're -- they're policemen and
8
their FTOs are experienced policemen and, you
9
know, they are responsible for handling
They have -- you
10
whatever call to service they're dispatched
11
to.
12
supervisor I believe that the field training
13
supervisor should observe how the
14
probationary officer handles situations or if
15
the FTO is the contact officer how the
16
probationary officer, you know, provides
17
cover and is he attentive to things so -- and
18
at the academy or at the target range when
19
we're dealing with recruits, you know, we try
20
to create scenarios for them to mimic the
21
things that could happen in real life but on
22
the street, you know -- and you can tell --
23
you can tell a lot about a probationary
24
officer with how they handle taking a report
Excuse me.
So as a field training
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
85 1
from a victim, you know, as well as, you
2
know, how they deal with, you know,
3
potentially volatile situations so you -- I
4
try to witness, you know, try to observe them
5
doing everything that I can.
6
11:47
Q.
Do you
7
give them critique?
8
commentary?
9
You know, you approached in this incorrect
Do you give them
Do you say you did this wrong?
10
manner or you forgot to address this?
11
put yourself in a dangerous situation.
You
12
A.
Oh, yeah.
13
Q.
And you feel proficient enough
Absolutely.
Yeah.
14
in the area of tactics and approaches and
15
things of that nature to offer that kind of
16
training and input?
17 18
A.
Yes, sir.
That's one of my
responsibilities as a supervisor.
19 11:48
I guess my question is:
MR. LAUFMAN:
20
for a while.
21
minutes?
We've been going
You guys want to take five
22
MR. HARDIN:
23
MR. LAUFMAN:
24
MR. STACKPOLE:
Sure. Stretch our legs. Sounds great.
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
86 1 2
MR. LAUFMAN:
5
VIDEOGRAPHER:
(Break taken.) VIDEOGRAPHER:
12:02
12:03
We're on the
record.
8 9
We're off the
record.
6 7
We'll go
off the record take a five-minute break.
3 4
Okay.
MR. LAUFMAN:
Sir, we're back on
the record after a brief break.
We had
10
concluded, at least for the time being,
11
talking about training.
12
hour or so I would like to turn to prior
13
circumstances in real world situations where
14
you acting as a City of Cincinnati police
15
officer were confronted with individuals with
16
weapons, guns, knives, things of that nature
17
and had to use your tactical training in
18
approaching them, controlling them, disarming
19
them, subduing them, whatever the outcome
20
was.
21
introductory statement of where we're going.
22
You with me?
For the next half
That is not a question.
It is just a
23
A.
Yes, sir.
24
Q.
Have there been circumstances
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
87 1
where you have been confronted with
2
situations as a police officer where suspects
3
or individuals had deadly weapons or you
4
believed they had deadly weapons such as
5
guns, knives, bludgeons, bats, things of that
6
nature?
7
A.
Yes, sir.
8
Q.
On how many occasions would you
9 12:04
10
believed to have and ultimately had a
11
firearm?
12
A.
I don't know.
13
Q.
Okay.
14 15 16
12:04
say you've come upon somebody who had or you
We talking 20? A.
Many.
Are we talking about two?
We talking 200?
I would say somewhere in the
neighborhood of 50.
Fifty to 100 maybe.
17
Q.
Individuals with guns?
18
A.
Yes, sir.
19
Q.
Let me take a slightly different
20
approach for a moment.
21
Mr. Hebert the only time you have directly
22
caused the death of a suspect?
Was the shooting of
23
A.
Yes.
24
Q.
Have you ever shot a suspect and
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
88 1 2
A.
Yes, sir.
3
Q.
On how many occasions?
4
A.
One.
5
Q.
When was that?
6
A.
In September of 2006.
7
Q.
Tell me about it, please.
8
A.
The -- the suspect in a -- an
9 12:05
12:06
it did not result in their death?
aggravated robbery.
I located and confronted
10
him.
11
and I shot him to stop the threat.
He pulled a gun from behind his back
12
Q.
Where did you shoot him?
13
A.
I aimed for center mass and I --
14
the bullet struck his right hand and left arm
15
as they were in front of his body pointing a
16
gun at me.
17
Q.
His right hand and left arm.
18
A.
Forearm.
19
Q.
What happened after of you shot
A.
He went down to the ground.
20 21
Yes, sir.
him? I
22
maintained cover on him and another officer
23
arrived and handcuffed him.
24
Q.
And he survived his wounds?
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
89 1
A.
He did.
2
Q.
And that event was approximately
3
six months after you had come out of your
4
field training and become an officer?
5 6
A.
after I graduated the academy, yes.
7
12:07
Q.
Have you ever discharged your
8
firearm in the line of duty other than the
9
two incidents, the one you just described and
10
the one involving Mr. Hebert?
11
A.
On duty, no.
12
Q.
I assume there was only one
13
round fired at the individual in September of
14
2009.
15
A.
Two.
One struck his right hand,
16
the other struck his left forearm as they
17
were in front of his body presenting a
18
firearm.
19 12:07
It was approximately six months
20 21
Q.
But they didn't punch through
and hit his body. A.
They were stopped by --
One was stopped by the gun
22
itself and the other was stopped by his bone
23
in his arm.
24
Q.
Is it your training to fire two
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
90 1 2 3 4 5
12:08
A.
Our training is to fire until
the threat is stopped. Q.
Were those two rounds in quick
succession that you fired at that individual?
6
A.
Yes.
7
Q.
And you saw sufficient effect
8
from those shots to believe that the threat
9
had been diminished?
10
A.
11
out of his hand.
12
Q.
On the first or second shot?
13
A.
I don't know.
14
Q.
So you have fired four rounds in
15
Yes, sir.
The gun actually flew
your time as a police officer.
16
A.
That's --
17
Q.
Two at that individual and the
18
12:08
rounds?
two that struck Mr. Hebert?
19
A.
That's correct.
20
Q.
The individual in September of
21
2006 you shot because he pointed a gun at
22
you, correct?
23
A.
That's correct.
24
Q.
Is he the only individual who
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
91 1
has ever pointed a gun at you?
2
A.
No, sir.
3
Q.
How many individuals of the, I
4
think you estimated, 50 to 100 that had
5
firearms actually pointed them at you?
6
12:09
A.
I know that there
7
are some that had pointed at me.
8
there are some who have shot at me but I
9
have -- I -- I don't know.
10
Q.
I know that
Of the 50 to 100 individuals you
11
identified that you'd encountered who had
12
guns, how many of them drew the firearm?
13
12:10
I'm not sure.
A.
The only person that I saw draw
14
a firearm and point it at me was the person
15
that I had shot in September of 2006.
16
Q.
17
question.
18
individuals who have the gun in their hand as
19
opposed to individuals where you search them
20
and ultimately find a firearm on their
21
person.
22
Let me be more clear in my I guess I'm looking for
Does that make sense? A.
And I -- I understand the
23
difference between people who have firearms
24
in their hand versus people who I find LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
92 1
firearms during a search but I'm not sure
2
exactly what you're asking me.
3
12:10
Q.
4
that number.
5
many of the individuals -- you've identified
6
a rough range of 50 to 100 individuals whom
7
you found to be in possession of a firearm.
8
What I'm trying to sort of get a grip on is
9
of the 50 to 100 how many of them actually
I'm trying to figure out how
10
had them in their hands?
11
you see either withdraw a gun from their
12
person or had a gun in their hands at the
13
time you arrived on the scene?
14
A. Yeah.
16
I don't know.
About ten.
Q.
How many people did
I'd say less than ten maybe.
15
17
12:11
I'm trying to sort of pair down
And I'm -- I'm guessing.
Take the first one that comes to
18
your mind, a situation where somebody had a
19
firearm in their hand either when you came to
20
the scene or they drew it during your
21
presence and I'd like to discuss it.
22
let you pick any one of those you recall.
23
you have one in mind?
24
A.
I'll Do
There was the incident in
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
93 1
September of 2006.
2 3
Q.
A.
Okay.
All right.
There was an
5
incident in, I believe it was, Winton Terrace
6
where a subject was at the top of the steps
7
and produced a firearm.
8
bathroom, threatened to kill anybody and
9
everybody who came upstairs.
He ran into the
We -- actually,
10
we were able to go up to the top of the
11
steps.
12
door, pulled that rope downstairs to keep him
13
from being able to exit the bathroom and then
14
stood by and awaited -- called for swat to
15
come out.
16
Q.
17 18 19 12:12
Well, let's discuss
something different than that.
4
12:11
Okay.
20
I tied a rope around the bathroom
And he was ultimate extra --
extricated from the bathroom? A.
Correct.
He -- he ended up
surrendering. Q.
Let's think of a circumstance
21
where an individual had a gun and it caused
22
you to draw your firearm.
23
A.
Okay.
24
Q.
How many times do you think you
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
94 1
have drawn your firearm in response to an
2
individual you believed had a gun?
3
A.
I -- I wouldn't even be able to begin to
5
guess how many times we're forced to display
6
our firearms in the course of our duty.
8
Q.
Because it's so common?
I mean,
we're into the hundreds?
9
12:13
I have no idea.
4
7
12:12
I have no idea.
A.
It's unfortunate that it is but,
10
yes, it's common.
11
Cincinnati police officers that work third
12
shift to display their firearms on a regular
13
basis and it's very unfortunate but it's the
14
cold hard truth.
15
Q.
It is common for
How many times would you say you
16
have drawn your firearm in response to an
17
individual who had a gun in their hand?
18
guess I'm looking at now -- you said maybe
19
five to ten or less than ten times that you
20
were confronted with someone who had a gun in
21
their hands.
22
A.
So I
Who had a gun in their hand.
23
Yes.
24
somewhere around ten.
Somewhere between -- you know,
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
95 1
Of those ten times how
many times did you draw your firearm in
3
response?
4
A.
All of them.
5
Q.
Even the individual that ran up
6
to the bathroom?
7
A.
Yes, sir.
8
Q.
Okay.
Has there been a
circumstance where you drew your gun,
10
essentially commanded them to drop theirs and
11
they complied?
12
A.
Yes.
13
Q.
Pick one in your mind and when
14 15
12:14
Okay.
2
9 12:13
Q.
you're ready tell me about it. A.
In lower Price Hill there was a
16
person that we knew to be a drug dealer and
17
we would -- and it was a cat and mouse game
18
with him just try to catch him driving
19
because he doesn't have a license.
20
a time where I observed him around the corner
21
of a -- it was between -- with Hatmaker and
22
Storrs Streets in lower Price Hill there's an
23
alley that runs between them and I observed
24
him in there.
He pulled a gun.
There was
I pulled my
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
96 1
gun and told him to drop it or I'd kill him
2
and he dropped and complied.
3
had a -- I've arrested him several times.
4
You know, he knew who I was.
5
was and he complied.
6 7
12:14
I knew who he
Did you have your gun drawn
before he drew his?
8
A.
Yes.
9
Q.
So you had him essentially at
10
gunpoint.
11
A.
Yes, I did.
Did you shout commands to him? Yes.
I told him to get on the
12
ground and, you know, drop the gun and he
13
complied.
14
Q.
15
Did you shout any commands to
him before he drew the gun?
16
A.
No.
17
Q.
You had him at gunpoint,
18
12:15
Q.
We had a -- we
correct?
19
A.
Well --
20
Q.
Say --
21
A.
-- he's standing in the alley --
22
Q.
Right.
23
A.
-- then I come around the
24
corner -LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
97 1
Q.
Right.
2
A.
-- and he pulls his gun and I
3
have mine out and I tell him drop the gun,
4
get on the ground and he complies.
5
Q.
But you didn't shoot him?
6
A.
No, sir.
7
Q.
Why not?
8
A.
Because he didn't point it at
9 12:15
He dropped it.
As soon as I came around
10
the corner and issued commands, he dropped
11
the gun.
12
12:15
me.
Q.
So even though you knew he was
13
pulling a gun out and he knew you were a
14
police officer, right?
15
A.
Yes.
16
Q.
He saw you?
17
A.
Yes.
18
Q.
And he pulled a gun out?
19
A.
Yeah.
20
Q.
And you didn't shoot him?
21
A.
No.
22
Q.
You commanded him to drop it.
23
A.
I did.
24
Q.
And he did?
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
98 1
A.
He did.
2
Q.
Had he raised it you would have
3
shot him?
4
A.
That's correct.
5
Q.
Let's segue to knives.
6
individuals have you come into contact with
7
who did or you ultimately found to have a
8
knife on their person?
9 12:16
12:17
How many
A.
Again, I -- I don't know.
Many.
10
The -- I guess the issue with knives is
11
knives can be carried in a manner in which,
12
you know, they're -- can be considered a
13
tool, you know, like a Leatherman.
14
would you consider a Leatherman a knife?
15
has a four-inch blade or a three-inch blade.
16
Would you consider that a deadly weapon?
17
depends on the manner in which it's used.
You know, It
It
18
You know, there are people that
19
I've arrested -- I -- I've probably arrested
20
people who have knives a lot of -- and I
21
couldn't even tell you how many times.
22
know, when they've used the knife as a
23
weapon?
24
And I guess you'd have to give me a better
I don't know.
You
I -- I don't know.
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
99 1
distinction as far as what you're looking
2
for.
3
was -- was probably correct and I would agree
5
with you that knives -- you can find someone
6
with a knife and it's not dangerous.
7
tool for their work --
9
12:17
Well, I think your first answer
4
8
12:17
Q.
10
A.
Well, hang on.
It's a
I never said
that having a knife wasn't dangerous because you can use a Leatherman to kill someone.
11
Q.
I agree.
12
A.
But it's the manner in which
13
it's carried and the manner in which it's
14
used I guess.
15
Q.
Uh-huh.
16
A.
Does that make sense?
17
Q.
It does.
Would you agree the
18
same thing with guns?
19
arrested somebody who had a gun which
20
certainly can kill but it turns out that they
21
have a license to carry that firearm or
22
they're carrying it in some appropriate way?
23 24
A.
Yeah.
I mean, have you ever
There -- I've arrested
somebody who has a valid concealed carry LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
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Sergeant Andrew Mitchell, 12/17/2014
100 1
permit who had their firearm on their
2
person --
3
Q.
Uh-huh.
4
A.
-- and I had to arrest them
5
and -- yeah.
6
12:18
12:18
Q.
That's fine but -And so I assume the same with
7
knives.
8
knives and they had a knife on their person
9
and, you know, maybe they use it in
You've arrested people who have had
10
conjunction with employment or they're
11
carrying it in a way which isn't necessarily
12
a weapon.
13
A.
The distinction between a knife
14
and a gun is a crowbar difference.
15
believe that you can fairly lump the two
16
together.
17
and that's to fire a projectile in order to
18
destroy something.
19
designed to -- to be used as a tool and then
20
also as a weapon.
I don't
A gun is designed for one purpose
21
You know, a knife is
Now, a baseball bat is designed
22
to be used during a baseball game.
23
its sole purpose is to be used against the
24
baseball, however, a baseball bat can be used
That's
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
101 1
as a deadly weapon.
2
write, however, it can be used as a deadly
3
weapon.
4
knife I believe to not be quite -- quite a
5
fair -- a fair assess -- or a fair assumption
6
to lump those two together.
7
12:19
12:20
A pen is designed to
So, you know, to lump a gun with a
Q.
And I'm not trying to compare
8
one to the other.
9
ascertain the body of experience that you
I'm simply trying to
10
have had as police officer with various
11
implements of potential danger to you as an
12
officer.
13
questions for a minute.
14
situations where you're dealing with someone
15
in a situation where you think they might
16
have a knife.
17
on the weapon as opposed to tool side.
18
And again I'm sure you can pick up the
19
similarities.
20
a call like you did here for a cutting or
21
something like that or let's add to it a
22
circumstance where somebody simply has a
23
knife.
24
have it open.
Let -- let's try to refocus the Let's talk about
You know, the knife is viewed Okay?
You know, you're responding to
They have it in their hand.
They
You know, you're dealing with
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
102 1 2 3
12:20
A.
Not many.
Knife violence is
much less common than gun violence.
4
Q.
Uh-huh.
5
A.
You know, I've arrested
6
significantly more people with knives than
7
with guns --
8
Q.
Uh-huh.
9
A.
-- but as it pertains to the
10
knife actually being used as part of an
11
offense it's much less than guns.
12
12:20
a situation with a person with a knife.
Q.
How about just dealing with
13
something where, you know, somebody has a
14
knife and you have to deal with that in
15
restraining them.
16
knife in their hand.
You know, they have a They have a knife open.
17
A.
Just a couple of times.
18
Q.
Couple like two or three?
19
A.
Yeah.
20 21 22 23 24
Somewhere in that range.
I'd -- I'd -- I'd say five would be safe. Q.
Okay.
Can you think of one and
describe it to us? A.
There was, when I was in
district one, a call to an address over in LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
103
12:21
1
the end west where a -- a lesbian couple was
2
having a familial dispute.
3
the scene one lady had a -- a large kitchen
4
knife to the throat of the other lady and
5
after a brief time I was able to get the lady
6
to drop the knife and step away and submit to
7
arrest.
8
Q.
Did you draw your weapon?
9
A.
I did.
10
Q.
Did you order her to instruct --
11
to drop the knife?
12
A.
I did.
13
Q.
Did you tell her if she did not
14
12:21
When I arrived to
she might be shot?
15
A.
I did.
16
Q.
And she dropped the weapon?
17
A.
After a brief period, yes.
18
Q.
How long a brief period?
19
A.
Two, three minutes.
20
Q.
Was this inside or outside?
21
A.
Inside.
22
Q.
Inside their -- you said north
A.
No, sir.
23 24
side? Over in the west end.
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
104 1
Q.
Okay.
2
A.
I'm not sure if it was a
apartment or a town -- well, it was a --
4
either -- it wasn't a single-family house but
5
I don't know if it was a multi-entrance
6
apartment or if it was a town home type.
7
can't recall.
9
Q.
In what room:
I
Living room,
bedroom, kitchen?
10
A.
By the entry door.
So it must
11
have been an upstairs apartment.
12
Because it was a -- there was stairs and a
13
landing and they were inside the entry door
14
and I was in the foyer area in the front door
15
area.
Yeah.
16
Q.
How far away from them?
17
A.
I want to say maybe eight or
18
12:22
House?
3
8
12:22
And an apartment?
nine feet.
19
Q.
Can you think of another one?
20
A.
I'm trying to recall.
21
Q.
But you believe on approximately
I can't.
22
five times you've been confronted with
23
individuals with knives?
24
A.
About that, yeah.
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
105 1
12:23
Anybody you felt was a direct
2
threat to you or is anybody with a knife a
3
direct threat to you?
4
A.
Yeah.
5
Q.
Tell me about that one.
6
A.
It's the incident of this
7
particular case.
8
Q.
Any other than that?
9
A.
No.
One.
Not where I felt that I was
10
in a situation where I was gonna be hurt or
11
killed.
12 13
I don't believe so no. Q.
But five circumstances
approximately where --
14
A.
Approximately.
15
Q.
-- individuals had knives out
16
and displayed in a manner that you had to
17
control tactically?
18 19 12:23
Q.
20
A. neighborhood.
Yeah.
Q.
Somewhere in that
Yes, sir. And in all of those
21
circumstances you were able to control the
22
situation without using deadly force?
23
A.
24
Mr. Hebert, yes.
With the exception of
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
106
12:24
1
Q.
Let's talk about baseball bats.
2
A.
Okay.
3
Q.
Bricks.
4
club or bludgeon.
5
faced off against somebody who had an item
6
like that, that while properly used to strike
7
a baseball or build a house or do whatever,
8
in that circumstance you viewed as a
9
potential threat to you as an officer?
10 11 12 13
12:24
I mean, any sort of
A.
Many.
How many times have you
Somewhere in the
neighborhood of 20, 30 maybe. Q.
Can you think of one where you
had to disarm somebody?
14
A.
15
together.
16
believe it was some type of maul.
17
midsize mallet type hammer and he was plan --
18
I guess his intent was to attack his
19
girlfriend or wife or whatever, and myself
20
and another couple of officers were able to
21
surround him and one -- another officer tazed
22
him and he was taken into custody without any
23
further incident.
24
Yeah.
They all kind of bleed
There was a fellah who had a -- I
Q.
It was a
Was he ever given an instruction
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
107 1
to drop the knife?
2
A.
Yes, sir.
3
Q.
Or I'm sorry.
4
or maul that he had?
5
A.
Yes.
6
Q.
By you or by another officer?
7
A.
I don't recall.
8
Q.
Did you have your gun drawn on
11
A.
Most likely, yes.
12
Q.
Did he drop the weapon?
13
A.
In this instance, no.
10
14 15 16
him?
I bel --
he was tazed by another officer. Q.
And in that manner he was
subdued?
17
A.
That's correct.
18
Q.
And he obviously wasn't shot by
19 12:25
I'm sure I gave
him commands.
9 12:25
Drop the hammer
you or any other officers?
20
A.
That's correct.
21
Q.
Have you ever had to taze
22
someone?
23
A.
Yes, sir.
24
Q.
On about how many occasions?
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
108 1
A.
I don't know.
2
Q.
Are we again in that so many I
3 4 5 6
12:26
A.
Well, I do not have an exact
number for you. Q.
I promise I will not go find a
7
document that says five different than what
8
you say.
9
estimate maybe to the nearest ten.
I'm just looking for your best
10
A.
Somewhere between 20 and 30.
11
Q.
Were any of those individuals
12
with weapons?
13
A.
Yes.
14
Q.
Were any of those individuals
15
with guns?
16
A.
No.
17
Q.
Were any of those individuals
18
12:26
almost lose count sort of world?
with knives?
19
A.
No.
20
Q.
Were any of those individuals --
21
well, what kind of weapons did they have if
22
not guns and knives?
23 24
A.
Well, the bats, the -- the maul.
I didn't taze that particular person.
You
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
109 1
know, I've tazed people with bricks.
2
tazed people with baseball and it -- fists.
3
12:27
Q.
Things that certainly could have
4
been dangerous or threatening to you as an
5
officer.
6
A.
Yes.
7
Q.
Circumstances where they were
8
not complying, presumably, with orders to put
9
it down or stop or do whatever you told them
10
to do.
11
A.
Correct.
The majority of
12
tazings were to terminate foot pursuits
13
however and, you know, chasing after somebody
14
the best way to get them to stop is to taze
15
them.
16 17
Q.
But some portion involved
individuals with weapons?
18
12:27
I've
A.
Confrontational individuals,
19
yes, or individuals that are armed with some
20
type of implement, yes.
21
Q.
You're in a confrontation with
22
them.
23
not following your orders and the response
24
was to taze them.
They're squared off to you.
They're
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
110 1
A.
2 3
MR. LAUFMAN:
ahead and take a break for lunch? MR. STACKPOLE:
Sounds good.
5
VIDEOGRAPHER:
We're off the
7
record. (Lunch break taken.)
8 9
01:27
Why don't we go
4
6
01:26
Correct.
VIDEOGRAPHER:
We're on the
record.
10
MR. LAUFMAN:
Mr. Mitchell,
11
we're back on the record after a lunch break.
12
Before our break we had been talking about
13
various instances, circumstances where you've
14
confronted individuals in an armed and
15
aggressive manner -- they were in an armed
16
aggressive manner.
17
this point to your discipline history with
18
the City of Cincinnati.
19
disciplined by the department?
20 21
A.
Have you ever been
Yes.
(Audio played accidentally.)
22 23
I would like to turn at
MR. LAUFMAN:
Why don't you drag
it back?
24
MR. NAPOLITANO:
Yeah.
I didn't
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
111 1
know it was over there.
2
showing here.
3 4
01:27
Well, it'll always
show in that bar.
5
MR. NAPOLITANO:
6
MR. LAUFMAN:
Here we go.
Sorry about that.
7
I think before the audio interruption you had
8
said yes.
9
A.
I said yes.
10
Q.
All right.
11
A.
I was given a written reprimand
In what manner?
12
in 2010 for being a front seat passenger of a
13
police car that was struck by a motorist who
14
ran a red light and I was not wearing my
15
seatbelt at the time.
16 17
01:28
MR. LAUFMAN:
Should be -- it's
Q.
Have you ever been disciplined
on any other occasions?
18
A.
Yes, sir.
19
Q.
Can you tell me about the next
20 21
one that comes to your mind? A.
The only other discipline I
22
received was a -- I was -- I was given a
23
suspension for a incident involving a use of
24
a tazer. LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
112 1 2
a Mr. Bower? A.
Yes, sir.
4
Q.
What was the length of the
suspension?
6
A.
Forty hours.
7
Q.
So essentially one full
8
workweek?
9
A.
At -- at that time our workweeks
10
were 48 hours.
11
eight-hour days so it was for 40 hours.
12
We would work for six
Q.
And that was suspension without
14
A.
Correct.
15
Q.
And what year was that imposed?
16
A.
It was either 2007 or 2008.
13
pay?
17
can't recall exactly when I served the
18
suspension.
19 01:29
Was that the situation involving
3
5
01:29
Q.
Q.
I
Have you ever received any other
20
discipline by the Cincinnati Police
21
Department?
22
A.
No, sir.
23
Q.
I am including in my definition
24
of disciplines what are known to me as ESLs, LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
113 1
employee supplemental logs.
2
MR. HARDIN:
3
objection.
4
minute?
Can we go off the record a
5
MR. LAUFMAN:
6
VIDEOGRAPHER:
7 8
10
We're off the
(Off the record discussion.) VIDEOGRAPHER:
We're on the
record.
11
MR. LAUFMAN:
While we were off
12
the record Mr. Hardin raised the issue that
13
to his mind ESLs are not discipline.
14
Removing the definition, have you ever
15
received an ESL?
16
A.
Yes, sir.
17
Q.
On how many occasions?
18
A.
I have somewhere in the
19 01:30
Sure.
record.
9 01:30
There's an
20 21 22 23 24
neighborhood of, oh, maybe a 120, 100 ESLs. Q.
Are ESLs always negative or can
they be positive? A.
No.
The vast majority of my
ESLs are commendations. Q.
How does an -- a positive ESL, a
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
114 1 2
When a supervisor enters an ESL
in the computer system it becomes part of the
4
electronic supplement log which is what ESL
5
stands for.
7 8 9
01:31
A.
3
6
01:31
commendation, become a part of your file?
Q.
Electronic supplement log.
How
many of those ESLs are negative? A.
I don't know.
I don't know.
Maybe one or two.
I have -- my ES -- my ETS
10
which is our employee tracking system, which
11
is the system that contains ESLs, I have over
12
200 entries in there.
13
such as being unable to appear at court for
14
being sick or on vacation.
15
type of verbal counseling that an officer may
16
have received, but there's -- I -- I have no
17
idea if -- how many would be considered
18
positive or negative.
19
monthly activity reviews.
20
supervisor each month I'm required to make an
21
ESL entry to review an officer's work product
22
for the month.
23
officer should get 12 per year.
24
Q.
It contains things
It includes any
Some of them are for You know, as a
So at the very minimum an
And those are generally
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
115
01:32
1
positive.
2
A.
It depends on an
3
officer's performance.
4
quality work product, they've made good
5
arrests and, you know, then they would
6
receive a commendation for that month as --
7
by way of an ESL.
8
standards or performing below standards they
9
would just receive an ESL documenting that
If they have a
If they're performing to
10
their monthly history has been reviewed, but
11
it's not -- it's -- they're not official
12
commendations nor official discipline or
13
anything like that.
14
that a supervisor can go in and look at an
15
employee's history, employer -- their
16
employee supplement log history and get a
17
idea of how that emp -- employee is.
18
01:33
It depends.
Q.
It's a -- just a way
To your knowledge, have you ever
19
been the subject of an internal investigation
20
section investigation?
21
A.
Yes.
22
Q.
In what setting?
23
A.
I'm sorry --
24
Q.
When.
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
116 1
A.
When?
2
Q.
Yes.
3
A.
There have been a couple of
4
times where I've been the subject of
5
internal's investigations.
6
there for a while.
7
01:33
Q.
How many times to your knowledge
8
have you been the subject of an internal
9
investigation section investigation?
10 11
A. four.
12 13
15
I'm gonna say around three or
Maybe five. Q.
I'm not terribly sure.
In chronological order can you
tell me about each one?
14
01:34
I haven't been
A.
No.
I don't know.
I could -- I
could tell you the ones I remember.
16
Q.
Okay.
17
A.
I was working a -- there's one
18
where I was working a Cincinnati Bengals'
19
game and it was against the Pittsburgh
20
Steelers and there was a gentleman who -- I'm
21
sorry.
22
folks asked us to remove from the game.
23
of the officers approached him, told him he
24
needed to go.
There was a person who the security One
He stood up and towered over
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
117
01:34
01:35
1
the female officer that told him to leave and
2
put her finger in her face and said I'm not
3
leaving, this, that and the other.
4
over, told him, sir, you are gonna leave, and
5
I put my hand on his elbow and escorted him
6
out of the stadium.
7
an allegation of excessive force and all
8
allegations of excessive force get take --
9
get investigated by our internal
No force.
10
investigation section.
11
unfounded.
I went
And he made
That complaint was
12
Q.
Okay.
13
A.
I talked to -- oh, what else.
14
There was an allegation of excessive force
15
for a tazing that I had.
16
subjects had broken into a vacant home.
17
of the mothers of one of the subjects called
18
to inform the police of that situation and
19
told us that she wanted to have her son
20
arrested.
21
respond to the location.
22
in the back.
23
door as officers knocked on the front door.
24
I drew and deployed my tazer striking one of
Several teenage One
Myself and a few other officers I take a position
Two subjects ran out the back
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
118 1
them and taking him into custody.
It was the
2
son of the mother who had called.
She
3
complained that I tazed her son as he was
4
trying to evade arrest.
5
before internal and that was exonerated.
6 7 8 9 01:36
01:36
Q.
That case went
Is exonerated different than
unfounded? A.
Yes, sir.
Exonerated means
that -- that the facts of the complaint are
10
true and that they did occur but that they
11
were compliant with department policy and
12
procedure.
13
was -- the complaint was that I used the
14
tazer and I did use the tazer and it was
15
found to be within department policies,
16
procedure and law so it was exonerated
17
because the action that was complained about
18
did occur but was found to be appropriate,
19
reasonable and necessary.
In -- in the tazing incident it
20
An unfounded allegation means
21
that -- that there are no facts or evidence
22
to support the allegation and that the --
23
that the alleged misconduct is -- you know,
24
if somebody says, well, you tazed somebody LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
119 1
and the officer says, well, no, I didn't taze
2
that person and it's a he said/she said type
3
of incident where it cannot be proven one way
4
or the other but there are not enough facts
5
to substantiate the chance of that wrongdoing
6
occurring, it's considered to be unfounded.
7
Does that make sense?
8 9 01:37
10 11 12 13
Yes.
Thank you.
Are you able
to recall any of the other incidents? A.
I don't know.
I'd have to look
at my personnel jacket. Q.
Did you appear before internal
on the Bower matter?
14
A.
Well, yes, sir.
15
Q.
You were ultimately the subject
16
of a lawsuit in that case, correct?
17
A.
That's correct.
18
Q.
And that matter was eventually
19 01:37
Q.
resolved between the parties?
20
A.
Yes, sir.
21
Q.
Never went to trial.
22 23 24
It was
settled short? A.
I'm not sure exactly what that
term means. LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
120 1
Q.
It went -- it did not go to
3
A.
It did not.
4
Q.
The matter was resolved by way
2
5
A.
That's correct.
7
Q.
Tell me a little bit about that
circumstance.
9
A.
The settlement?
10
Q.
Mr. Bower.
11
A.
You want me to describe that --
12
01:38
of some settlement?
6
8
01:37
trial.
the incident?
13
Q.
Yes, please.
14
A.
Okay.
My partner and I who had
15
been working in the district three area for
16
some time were dispatched to a holdup alarm
17
which is an employee pressing a button at a
18
Jersey Mike's restaurant.
19
we had never previously heard that holdup
20
alarm go off.
21
alarms that go off two, three times a day.
22
We've never heard that alarm go off before.
23
We responded to the scene within -- I want to
24
say maybe within a minute of receiving the
The holdup alarm
You know, there are some
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
121
01:39
01:39
1
call for service, so we were there very
2
expeditiously.
3
was sort of half lit but it was still during
4
open hours so it raised our suspicion a
5
little bit.
6
front of the Jersey Mike's who began walking.
7
It appeared that he picked up his pace after
8
making eye contact with me and my partner and
9
I decided we wanted to stop that individual
We observed the restaurant
There was a person standing in
10
and detain him for investigation of the
11
potential holdup alarm or the investigation
12
of the holdup alarm.
13
around with his firearm drawn because holdup
14
alarms typically mean that it's a business
15
robbery.
16
Subjects are usually armed.
17
took a triangulation position on the subject,
18
drew his firearm.
19
issued commands.
20
disregarded.
21
him into custody for obstructing official
22
business.
23
It took effect.
24
and he was taken into custody without further
So my partner wheeled
Business robberies are preplanned. So my partner
I got out of the car, My commands were
At that point I was gonna take
I removed and deployed my tazer. Subject went to the ground
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
122 1
incident.
2
the scene for whatever reason decided that
3
they didn't like the use of force.
4
didn't like the use of the tazer against
5
Mr. Bower.
6
and then filed a lawsuit.
7 8
He was subsequently un-arrested
Q.
Was he injured as a result of
A.
No, sir.
There was an
10
allegation that he was injured but he was
11
not.
12 13 14
01:40
They
that?
9 01:40
The supervisors that responded to
Q.
To your knowledge, was he the
individual who was involved in the robbery? A.
There actually was not a
15
robbery.
16
had hit the button by mistake.
It was a false alarm.
The employee
17
Q.
18
with that event?
19
A.
I was.
20
Q.
Was Mr. Stackpole your attorney?
21
A.
He was.
22
Q.
Was Mr. Hardin your attorney?
23
A.
He was.
24
Q.
Did your partner give testimony?
Were you deposed in connection
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
123 1
A.
He did.
2
Q.
Did your partner give testimony
3
consistent with your explanation of the
4
events?
5
A.
I would believe so.
6
Q.
You don't have any personal
7
knowledge?
8 9 01:41
10
A.
some time ago.
There was nothing that stood
out that was inconsistent.
11
Q.
Is that the only other time
12
you've been sued in your capacity as a
13
Cincinnati Police Officer?
14
A.
Yes, sir.
15
Q.
Are there any other times that
16
you have appeared before internal other than
17
those you have discussed already that you can
18
recall?
19 01:41
I was there but it was quite
A.
I know there's at least one or
20
two more times that I've been down there.
21
I'm not sure if it was for something that I
22
was the target of an investigation or if it
23
was to be interviewed referenced an
24
allegation against a different police LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
124 1 2
Q.
Have you ever been the subject
of an internal investigation that was found
4
to be other than unfounded on exonerated?
6 7 8 9
A.
Only the incident involving
Mr. Bower. Q.
And was that a finding of
excessive force by the internal group? A.
I'd have to read the findings.
10
I'm not sure if it was a sustained finding
11
for excessive force or for arresting when
12
they thought that there shouldn't have been
13
an arrest.
14
sure exactly what the wordage was but it was
15
a sustained allegation.
16
01:42
I don't know.
3
5
01:42
officer.
I -- I don't recall.
Q.
I'm not
And to your knowledge that's the
17
only time you've been the subject of a
18
sustained internal investigation section
19
investigation?
20
A.
Yes, sir.
21
Q.
Let's briefly turn to any items
22
that you might have reviewed in preparation
23
for this deposition.
24
preparation for this deposition?
Did you review items in
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
125 1
A.
Yes, sir.
2
Q.
What did you review?
3
A.
I reviewed my statement to
4
homicide.
5
Detective Hilbert.
6
the interviews given by the other officers to
7
our homicide unit.
8 9 01:43
Q.
I reviewed summaries of
When you say summaries, are you
referring to transcripts that were typed up
10
verbatim or sort of a paragraph where someone
11
had interpreted what was said and boiled it
12
down to --
13
01:44
I reviewed the deposition given by
A.
A paragraph of interpretation.
14
I also reviewed the firearms discharge board,
15
the letter from the Hamilton County
16
Prosecutor stating that the shooting was
17
justified, and the internal investigation
18
findings that stated that the shooting was
19
justified.
20 21
Q.
Did you review anything else in
preparation for this deposition?
22
A.
No, sir.
23
Q.
Did you have any meetings with
24
anyone to prepare for this deposition? LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
126 1
A.
Yes, sir.
2
Q.
With whom did you meet?
3
A.
Mr. Stackpole and Mr. Hardin.
4
Q.
I don't want to know what was
5
discussed at that meeting with your attorneys
6
but please tell me when it took place.
7 8
01:45
Prior to each of the preceding
officers' depositions.
9
Q.
Typically the day prior?
10
A.
Typically the day of.
11
Q.
So in the hours preceding the
12
01:45
A.
deposition?
13
A.
Correct.
14
Q.
So you have met with Mr. Hardin
15
and Stackpole on at least the occasions of
16
prior to each deposition in this matter?
17
A.
Prior to most.
18
Q.
Did you meet with them prior to
19
this deposition?
20
A.
No, sir.
21
Q.
Have you met with them in the
22 23 24
days or weeks preceding this? A.
Officer Hilbert's deposition was
in the weeks preceding this.
Officer
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
127 1
Kneller's deposition was in the weeks
2
preceding this.
3
01:46
Let's go back through briefly
4
documents you said you reviewed.
5
statement to homicide.
6
transcribed form?
Your
In audio or
7
A.
Transcribed.
8
Q.
Have you ever heard the audio
9 01:46
Q.
So yes.
recording of your statement to homicide?
10
A.
No, sir.
11
Q.
You said you reviewed Detective
12
Hilbert's deposition.
13
the transcript book form?
That was again in a --
14
A.
That's correct.
15
Q.
You indicated you reviewed the
16
summaries of statements given by other
17
officers on the scene.
18
referring to Officers Kneller, Johnson and
19
Stavale?
20
A.
Yes.
I assume you were
As well as Lieutenant
21
Milek, Officer Dawson, captain -- Captain
22
Butler and then the control sergeants who
23
were assigned to each officer.
24
summary of Megan Hutchinson's first interview
Also was a
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
128 1
and her second interview and the interview
2
with Jason Weller.
3 4 5 6 7 8 9 01:47
10 11 12 13
Do you know who prepared these
summaries that you were reviewing? A.
I received them from
Mr. Stackpole. Q.
Were these part of the homicide
investigation to your knowledge? A.
It's a summary of their
interview with the homicide unit. Q.
Okay.
But this is a document
prepared by homicide to your understanding? A.
It's a -- I have no
14
understanding of how it was prepared.
15
was -- it's a summary of the statements and
16
it was given to me by Mr. Stackpole.
17 18 19 01:47
Q.
Q.
But it wasn't prepared, for
example, by Mr. Stackpole or his office? A.
I don't know who prepared it.
20 21
MR. STACKPOLE:
24
Off the record
for a second.
22 23
It
VIDEOGRAPHER:
Okay.
We're off
the record. (Off the record discussion.) LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
129 1 2
VIDEOGRAPHER: record.
3
01:49
MR. LAUFMAN:
We were just off
4
the record for a few moments while I
5
consulted with your counsel, Mr. Mitchell.
6
think we have agreed, and I'll let
7
Mr. Stackpole speak, that the summaries that
8
you received and reviewed in preparation for
9
this deposition were, in fact, prepared by
10
Mr. Stackpole's office, is that correct?
11
MR. STACKPOLE:
I
That is correct
12
and I'm asserting that it's work product that
13
I shared with my client in preparation for
14
this litigation and in preparation for his
15
defense and I -- I don't want you to see
16
them, Mr. Laufman.
17
01:49
We're on the
MR. LAUFMAN:
I recognize you
18
don't want me to see them.
19
if I were you.
20
preparation for this deposition.
21
they are fundamentally subject to discovery
22
at this point.
23
cross-examine him on them.
24
they be produced --
I wouldn't either
He reviewed them in I think
We have a right to I would ask that
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
130 1
MR. STACKPOLE:
2
MR. LAUFMAN:
3
you will decline -MR. STACKPOLE:
5
MR. LAUFMAN: -- that polite
Yes.
request.
7
MR. STACKPOLE:
I appreciate the
8
politeness with which it was delivered but I
9
object and I deny your request and I will not
10
produce the attorney/client privileged and
11
work product material.
12
01:50
-- I anticipate
4
6
01:49
And I --
MR. LAUFMAN:
Back to you,
13
Mr. Mitchell.
14
reviewed a letter from the Hamilton County
15
Prosecutor's office.
16
letter -- I think what is that letter.
17
a single page, you know, a few paragraphs.
18
Is that the letter to which you are
19
referring?
You indicated that you
I have reviewed that It's
20
A.
Yes, sir.
21
Q.
Were there any attachments or
22
addendums to the letter you reviewed?
23
A.
No, sir.
24
Q.
As far as the firearm discharge
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
131 1
board, describe the documents that you
2
reviewed as what you believed to be their
3
work product.
4
01:50
A.
5
and interviews at the end of which they
6
stated the -- the firearm discharge board
7
believes that the shooting was compliant with
8
the departmental policies, procedures and
9
state law.
10
Q.
Were -- again, was this a
11
relatively short report summarizing their
12
findings?
13
investigations or was it a conclusory letter?
14
Did it contain interviews and
A.
15
long it was.
16
page.
17
sure.
18 19 01:51
It's a summary of the incident
20 21 22 23 24
I'm not sure.
I'm not sure how
It might have been more than a
It might have been -- but I'm not
Q.
But just a few pages.
It wasn't
a thick file or anything? A.
It was -- it was not a
substantial document. Q.
How about the internal
investigation section finding? A.
I read that online.
It was
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
132 1
posted on a web page that was put up by
2
Friends of Bones organization.
3
to read that online.
4
Q.
report contain any statements, summaries of
6
statements, or was it again a finding
7
document meaning that here is our
8
conclusions, here is our finding? A.
Both.
It -- it included both.
10
It included the summary of interviews,
11
summary of the investigation, as well as the
12
finding that the use of force was proprietary
13
and in compliance with department policies,
14
procedures and state law.
15 16
01:52
Did that investigation
5
9 01:51
Uh-huh.
So I was able
Q.
Did you review any other
documents in preparation for this deposition?
17
A.
Other than what I've stated, no.
18
Q.
Have you reviewed any other
19
documents part of this litigation other than
20
what we've already described?
21
widening it to just, you know, more than the
22
last week or so you know this is coming.
23
What else have you reviewed or read in this
24
case?
So I'm
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
133 1 2 3
01:53
filed.
I read the Complaint that was
That's -- I think that's about it. Q.
There was a homicide
4
investigation file prepared that had as part
5
of it a summary of their investigation.
6
document ran, I would estimate, ten -- maybe
7
ten-15 pages, contained summaries of
8
interviews and essentially everything that
9
homicide did.
The
There were obviously multiple
10
attachments to that but there was a sort of
11
fundamental document containing what we
12
understand to be the summary of investigation
13
by the homicide department.
14
seen or reviewed that document?
15
01:53
A.
A.
I'm not sure.
Have you ever
I believe that
16
would be containing the vast majority of the
17
same information as produced by the internal
18
investigation section.
19
comes out in a different finalized report or
20
if it's merged into the one report or if
21
they're two entirely separate things.
22
not terribly sure.
23 24
Q.
I'm not sure if it
I'm
You indicated that you had met
with Mr. Hilbert prior to his deposition, is LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
134 1
that correct?
2 3
A.
01:55
I was at a
meeting with he and Mr. Stackpole.
4
01:54
That's correct.
Q.
Recognizing that, subject to
5
Mr. Stackpole's position that anything
6
discussed between you and he and Mr. Hilbert
7
and he is attorney/client privilege.
8
Just make sure I'm -- we're drawing that
9
foundational line.
Okay?
I disagree with him but
10
Mr. Stackpole has instructed you to not
11
discuss anything you and he talked about and
12
that anything he and Mr. Hilbert talked
13
about.
14
A.
Okay.
15
Q.
Understand?
16
A.
Yes, sir.
17
Q.
I don't want you to misspeak and
18
somehow thwart his efforts to protect a right
19
that he perceives he has to assert on your
20
behalf.
21
describe for me everything you and Mr.
22
Hilbert discussed between each other.
23 24
I would, however, ask you to
A.
He asked me if I was okay.
He
said that he believes that I did a good job LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
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Sergeant Andrew Mitchell, 12/17/2014
135
01:55
1
and that I did everything that I had to do to
2
protect my officer.
3
Q.
Did he say anything else?
4
A.
Nothing about the facts of the
5
incident.
6
Q.
Did you say anything to him?
7
A.
Thank you.
8
That's about it.
9
Q.
10
I appreciate that.
Was it your understanding that
you were the subject of his investigation?
11
01:56
No, sir.
A.
I was -- subject of his
12
investigation.
13
team responds out to investigate a use of
14
firearm by a police officer, they investigate
15
whether the officer struck or missed the
16
intended target.
17
out any -- any time an officer deploys their
18
firearm in the line of duty whether it hits
19
or not, whether the person is deceased or
20
not.
21
animals.
22
doesn't respond for that.
23
particular instance I was the person that
24
fired the shots.
When the police intervention
So that basically they come
The only exception being shots fired at The police intervention team Now, in this
He was the lead
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
136 1
investigator of the police intervention team,
2
so I was the person who was being
3
investigated.
4
fair statement.
5
Q.
the role of his investigation was to
7
determine whether or not the shooting was
8
justified? A.
Well, ultimately I don't believe
10
that that's his decision to make.
11
is to come and obtain facts, conduct
12
interviews, and present his investigation to
13
internal investigations, the command staff,
14
the firearms discharge review board, and the
15
county prosecutor's office, and they make the
16
determination whether or not it was justified
17
or not.
18
01:57
Is it your understanding that
6
9 01:56
So, yeah, I suppose that's a
Q.
His role
Leaving the conclusion aside for
19
the moment, is it your understanding that the
20
goal of his investigation is therefore to
21
gather facts which will permit the various
22
bodies you just described to determine
23
whether or not a shooting was justified?
24
A.
Yes, sir.
His job is to
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
137 1
investigate the facts surrounding the use
2
of -- the use of force by the police
3
personnel.
4
01:58
I mean, this is one of those
5
cases where there's no doubt what happened.
6
I mean, you fired your weapon, shots took
7
effect, Mr. Hebert deceased at the scene.
8
A.
That's correct.
9
Q.
I mean, what Detective Hilbert
10
and the rest of the homicide department and
11
the police intervention team working with him
12
are there to do is to gather facts about
13
whether or not that shooting was justified.
14
Is that your understanding?
15
A.
They're there to investigate the
16
circumstances surrounding the -- the use --
17
use of force.
18
01:58
Q.
Q.
And you were interviewed by
19
Detective Hilbert as part of his
20
investigative duties in the hours following
21
the event, correct?
22
A.
Yes, sir.
23
Q.
You were taken from the scene
24
down to the criminal investigation section at LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
138 1 2
A.
Yes, sir.
3
Q.
There you had an opportunity to
4
01:59
consult with counsel, correct?
5
A.
Excuse me.
6
Q.
Mr. Lazarus who I believe is
Yes, sir.
7
with Mr. Hardin's office came and was present
8
with you?
9
A.
That's correct.
10
Q.
And you were asked to give an
11
interview with Mr. Hilbert and his coworker
12
Mr. Gehring, correct?
13
A.
That's correct.
14
Q.
And you understood the nature of
15
01:59
814 Broadway?
that interview, correct?
16
A.
Yes, sir.
17
Q.
I mean, you understood that this
18
was in the hours preceding the event the --
19
is it police intervention team?
20
they're called?
Is that what
21
A.
Yes, sir.
22
Q.
The police interventions team's
23
opportunity to capture your explanation of
24
the events while they were fresh in your LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
139 1
mind.
2
A.
Yes, sir.
3
Q.
And you complied with that to
4
the best of your abilities, correct?
5 6
A.
Q.
And you gave true and accurate
8
statements to them as best you were able to
9
recall?
10
A.
11
Yes, sir.
12
Q.
13
15
In the hours immediately
A.
The hours immediately after the
Q.
After the event.
event.
16 17
As best I was able to recall.
preceding the event?
14
02:00
I was cooperative
with their investigation.
7
02:00
Yes, sir.
I apologize.
I said preceding.
18
A.
Yes, sir.
19
Q.
Following the event.
20
MR. HARDIN:
21
MR. STACKPOLE:
22
MR. LAUFMAN:
23 24
that?
Thank you.
Bless you. Bless you. Did you get all
Everybody? Q.
And you sought to be complete in
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
140 1
your statement to them and as accurate and
2
forthright as you could be?
3 4 5
02:00
To the best of my ability at the
time, yes. Q.
Because you knew they were gonna
6
take this information to determine exactly
7
what happened and whether or not it was
8
justified, correct?
9
A.
Yes, sir.
10
Q.
You knew this interview would
11
become a part of their investigation and as
12
you testified to moments ago would be
13
transmitted to internal affairs, correct?
14
A.
Yes, sir.
15
Q.
Would be transmitted to the
16
command staff, correct?
17
A.
Yes, sir.
18
Q.
Would be transmitted to the
19 02:00
A.
firearms reviewed board, correct?
20
A.
Yes, sir.
21
Q.
And you knew all of that at the
22
time you gave the statement to Detective
23
Hilbert and Detective Gehring?
24
A.
That's correct.
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
141 1
02:01
Q.
During that interview -- and
2
this took place, as we said, in CIS at the
3
homicide office in an interview room,
4
correct?
5
A.
Yes, sir.
6
Q.
And there was a white board or
7
one of those white boards that you can write
8
on with magic marker and then erase it, is
9
that correct?
10
A.
Yes, sir.
11
Q.
And you made a diagram for them
12
at their request of what occurred, is that
13
correct?
14
A.
Yes, sir.
15 16 17
MR. LAUFMAN: exhibit?
Mark this as Exhibit 19.
(Exhibit 19 identified.)
18
02:01
Can we mark an
MR. LAUFMAN:
Pete, this is my
19
only copy of this because I printed it at
20
home.
21
off of it at this point but if you guys want
22
to see it, identify it --
I'm not gonna have him work directly
23 24
MR. STACKPOLE:
I don't think --
I think I sent him a copy of it just so he LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
142 1
can -- yep.
2
MR. LAUFMAN:
3
the three documents you e-mailed us --
4
MR. STACKPOLE:
5
MR. LAUFMAN:
6
8
Yeah. -- yesterday
MR. STACKPOLE:
Okay.
To the
witness?
9
02:02
It's one of
afternoon.
7
02:02
Good.
MR. LAUFMAN:
Yes, please.
10
Mr. Mitchell, I placed in front of you what
11
has been marked as Plaintiff's Exhibit 19.
12
will submit to you that we were provided that
13
document yesterday afternoon by way of e-mail
14
and that it purports to be a photograph of
15
the white board taken by the homicide
16
detectives at some point in time related to
17
your interview.
18
confirm for us that that is, in fact, the
19
drawing that was created during that
20
interview?
21
A.
22 23 24
I
Would you review it and
Yes, sir.
It is.
MR. LAUFMAN:
Twenty.
(Exhibit 20 identified.) Q.
I'm now gonna hand you what has
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
143 1
been marked as Plaintiff's Exhibit 20.
Ask
2
you to take a moment to look at that.
I will
3
submit to you that that is simply a blowup of
4
the incident area depicted on Plaintiff's
5
Exhibit 19 and take a moment to look back and
6
forth and assure yourself of that.
7 8
A.
It's the same thing just blown
Q.
Larger.
up.
9 02:03
02:04
Right.
10
give us enough room to work.
11
pen in front of you?
12
minute?
I wanted to Do you have a
Can I see that for a
13
A.
It's a felt blue pen.
14
Q.
Okay.
What we are going to do
15
is listen to the audio recording of your
16
homicide interview.
17
A.
Okay.
18
Q.
Okay.
We are going to start at
19
the point where you start making this drawing
20
and I am going to ask you several questions
21
about it because as I think you'll hear the
22
gentlemen in the room are all speaking,
23
various things are being done, things are
24
being pointed to and discussed and things of LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
144
02:05
02:05
1
that nature and while I'm sure it was very
2
clear to everybody sitting in that room we
3
need to be able to go back through and with
4
the diagram that was being referenced in
5
front of us understand that.
6
A.
Okay.
7
Q.
Okay.
Okay?
Not a question.
Just by
8
way of statement as to what we're going to
9
do.
Okay.
For purposes of the record, this
10
is the audio of the homicide interview that
11
was provided to us by the city as part of
12
their discovery and public records request.
13
We'll mark it at the end of the deposition
14
and submit it for filing as part of the
15
record.
16
drive or something like that.
17
when played -- we're simply gonna play it on
18
Windows Media Player -- will create a time
19
base in the player.
20
how much time has elapsed.
21
to start playing the tape at 21 minutes and
22
40 seconds.
23 24
We'll probably submit it on a zip The audio file
Will allow us to know And we are going
(Audio played.) Q.
Okay.
We played a little bit.
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
145 1
We've stopped at --
2 3
-- 21:47.
Are you able to
identify the voices we heard in those first
5
few sentences?
6
A.
Yes, sir.
7
Q.
And who do you hear?
8
A.
Myself and Detective Gehring or,
10 11 12 13 14 15
I'm sorry, Detective Hilbert. Q.
Okay.
And we hear somebody say,
okay, draw it on the board. A.
Who says that?
Either Detective Gehring or
Hilbert. Q.
Do you remember this point of
the interview?
16
A.
Yes, sir.
17
Q.
Did you stand up and follow
18
02:06
Q.
21:47.
4
9 02:06
MR. NAPOLITANO:
their request to draw it on the board?
19
A.
Yes, sir.
20
Q.
And is the end result what we
21
have in front of you as Plaintiff's
22
Exhibit 19?
23 24
A.
Yes, sir.
(Audio played.) LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
146 1
Q.
2
marker in the background.
3
the drawing?
4
A.
Yes, sir.
I would -- I can only
assume that I'm -- that would be a pretty
6
good assumption. (Audio played.)
8 9
Q.
I'm going to ask you to for the
moment stand, if you would, and approach the
10
screen and we'll just do the very big
11
picture.
12
understand what's in this diagram and then
13
we'll look at the smaller version.
14
I just want to make sure we all
A.
16
MR. HARDIN: where you stopped?
Could you tell us
Time on it.
17
MR. NAPOLITANO:
18
MR. HARDIN:
19
THE WITNESS:
20
Okay?
Okay.
15
02:09
Is that you making
5
7
02:08
We hear the squeaking of a magic
Okay.
microphone reach that far?
21
MR. LAUFMAN:
23:25. Thank you.
Will the This work? All nods.
Yes.
22
We heard you identify, for example, Chase
23
Avenue.
24
show us that.
I think we all know where it is but
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
147 1
(Witness gestures.)
2 3
Q.
direction, correct?
4
A.
That's correct.
5
Q.
And I think we have actually at
6
the top of that picture the directions that
7
tell us where everything is.
8 9 02:09
A.
That's correct.
compass rose.
This is a
North is up here out of view.
10
There's an arrow pointing north, W west, E
11
east, S south.
12 13 14
Q.
You mentioned a grassy area.
Can you show us that? (Witness gestures.)
15
A.
Right along through here.
This
16
is the -- this is the area between the curb
17
and the sidewalk.
18 19 02:10
And Chase runs in an east west
20 21 22 23 24
Q. tree.
And there was discussion of a
Where is that? A.
Tree's right about here.
(Witness gestures.) Q.
There is a circle on the diagram
to indicate the tree? A.
That's correct.
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
148 1 2
essentially? A.
That's correct.
4
Q.
You mentioned houses?
5
A.
There's a house, there's a house
7
and there's a house. Q.
There are little dashes above
8
the house on the most left.
9
indicate?
10
A.
there's a hill there.
12
supposed to be a step. Q.
What does that
I believe I'm indicating that
11
13
02:10
In the middle of the grassy area
3
6
02:10
Q.
This is, I think,
There's then a series of lines,
14
a barrier, between the sidewalk and the
15
houses with a wiggled line drawn through it.
16
Do you see what I'm referring to?
17
A.
This right here?
18
Q.
Yes, sir.
19
A.
Yes.
20
Q.
What -- what is that?
21
A.
That's a retaining wall.
22 23 24
I see it.
It's
approximately three feet high. Q.
And the area then between the
grassy area and the retaining wall with the LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
149 1
vertical lines is the sidewalk, correct?
2
A.
That's correct.
3
Q.
And the lines are intended to
4
roughly indicate the fact that the sidewalk
5
is made of segmented pieces of concrete.
6
A.
That's correct.
7
Q.
You can go ahead and grab a seat
8
for a minute.
9 02:11
10
MR. NAPOLITANO: to go back to 23:20.
11
MR. LAUFMAN:
Okay.
So we'll
12
restart at 23:20.
13
people and things and where they are.
14
you to be able to on Plaintiff's Exhibit 20
15
show us who they are and where you're
16
referring to.
17
You start talking about I want
(Audio played.)
18
02:12
Reorient or try
Q.
We're gonna back up a little bit
19
further.
20
to hear lead in enough to know what you're
21
saying.
Excuse me.
22 23 24
I want you to be able
MR. NAPOLITANO:
Go back to 23
even. (Audio played.) LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
150 1
Okay.
tree.
3
of you on the top of the page up in the white
4
area if you would write the word tree and
5
then draw a line down to the center of the
6
circle intended to indicate that.
In this drawing that you have in front
(Deponent is drawing)
8
Q.
9
playback.
Okay.
10 11
We'll restart the
MR. NAPOLITANO:
23:04.
(Audio played.)
12
MR. LAUFMAN:
We stopped the
13
tape for a moment.
14
he is sitting here.
15
referring to Mr. Hebert, correct?
You make a reference to I assume you're
16
A.
That is correct.
17
Q.
And is Mr. Hebert depicted on
18
02:13
You've identified the
2
7
02:12
Q.
Exhibit 20?
19
A.
Yes, sir.
20
Q.
Can you without drawing at this
21
point just point to him so I know what you're
22
referring to?
23 24
A.
He is going to be this expertly
drawn stick figure right there. LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
151 1
Q.
and that is a stick figure.
3
circular head, a line for a body, a bisecting
4
line indicating arms and then two legs coming
5
out in what I will call the classic stick
6
figure and that is intended to show the
7
approximate location of Mr. Hebert, correct?
9
A.
We have a
A very, very approximate
location of Mr. Hebert.
10
Q.
And I understand that, you know,
11
again seen in its technical approach this
12
would make Mr. Hebert appear to be laying
13
down.
14
telling the officers, he's sitting up.
15
wouldn't begin to know how to draw that in
16
three dimensions either.
17 18 19 02:14
But just to be clear --
2
8
02:13
Okay.
We all understand he's not.
A.
As you're I
It also would indicate that he's
almost half the size of a house. Q.
If you could please, just so we
20
know who he is, can you take the marker in
21
your hand and from maybe about halfway down
22
the body, so below the arms but above the
23
legs, draw a line straight down to the white
24
on the bottom part of that page and then LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
152 1
write Hebert to indicate which stick figure
2
you are referring to?
3 4
We will restart the tape again
having backed up just a few seconds to --
6
MR. NAPOLITANO:
8 9 10 11
Q.
23:13.
-- 23:13.
(Audio played.) Q.
Which stick figure did you just
draw to represent Officer Kneller? A.
The other stick figure.
The one
12
with the head facing or the head on the west
13
and the legs on the east.
14
Q.
Understood.
If you would, take
15
the pen again maybe halfway down the body of
16
that stick figure draw a line downwards the
17
bottom of the page and write the word
18
Kneller.
19 02:15
Q.
5
7
02:15
(Deponent is drawing)
20
(Deponent is drawing) Q.
And to understand in a real
21
world perspective what I think you have
22
described to them, tell me if this is
23
inaccurate.
24
sidewalk facing west, correct?
Mr. Hebert is sitting on the
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
153
02:16
1
A.
That's correct.
2
Q.
And you indicate that his legs
3
are stretched out in front of him in a
4
westwardly direction, correct?
5
A.
That's correct.
6
Q.
You advise the homicide
7
detectives that Officer Kneller is standing
8
essentially facing him at his feet and that
9
would make the officer in an eastward
10 11 12
direction, correct? A.
eastward, yes.
13 14 15 16 17
02:16
The officer would be facing
MR. NAPOLITANO:
Starting again
at 23:21. (Audio played.) Q.
We can hear you squeaking the
marker for an indication of the female.
18
A.
Okay.
19
Q.
Where was she sitting?
20
A.
She's the blob next to the tree.
21
Q.
To the west of the tree?
22
A.
That's -- that's -- part of it
23 24
is inside of the tree. Q.
Okay.
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
154 1 2
Q.
Okay.
If you could, take your
4
pen and draw a line maybe in approximately a
5
direction that would take you to about
6
10 o'clock --
7
A.
Okay.
8
Q.
-- so that you end up over in
9
the top left corner essentially of the
10
paper -- I can indicate and see what I
11
mean -- and write -- I think we can agree
12
that the female is Ms. Hutchinson, correct?
13
A.
That's correct.
14
Q.
Would you identify her as
15 16
Hutchinson? (Deponent is drawing.)
17 18
Q.
We'll restart the recording.
(Audio played.)
19 02:18
It's on the west side of the
tree.
3
02:17
A.
Q.
I will admit I lost the flow of
20
that.
21
again I know this is not the easiest thing to
22
do listening to it in pieces but I want to
23
make sure we do this.
24
lose context, feel free to say so.
Can we go back for a little bit?
And
If at any point you
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
155 1
A.
Thank you.
2
Q.
Take -- take it back 30 seconds,
3
a minute.
4
whatever you want to listen to.
5
I'll listen -- I'll listen to
A.
6
I'll go back to
7
23:16 just to make sure we go back far
8
enough.
10
MR. STACKPOLE:
MR. LAUFMAN:
12
question on the table.
13
We'll go off the record.
14 15 16
There is no
I think that's fair.
VIDEOGRAPHER:
We're off the
record. (Break taken.)
17 18
Do you mind if I
conference with him for one moment?
11
VIDEOGRAPHER:
We're on the
record.
19 02:25
Thank you. MR. NAPOLITANO:
9 02:18
I will.
MR. LAUFMAN:
We're back on the
20
record after a short break.
21
can you tell us where we're gonna beginning
22
to give us a little context on where we were?
23 24
MR. NAPOLITANO:
Mr. Napolitano,
Sure.
Why
don't we begin at 23:10, 23 minutes 10 LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
156 1 2
02:26
(Audio played.)
3
MR. LAUFMAN:
4
MR. NAPOLITANO:
5
MR. LAUFMAN:
We've stopped at. 23:34.
I think there's a
6
couple of motions you can perhaps outline for
7
us first by pointing if you would and then
8
we'll ask you to draw.
9
approach and then indicate and took a
You indicate your
10
position right here or something to those
11
words.
12
you indicate you took the position?
Would you point with the pen where
13
A.
I took a position here.
14
Q.
You're the other dark colored
15
02:26
seconds, on our audio recording.
blob for lack of a better description?
16
A.
That is correct.
17
Q.
Now, there's kind of dashed line
18
that kind of comes around in an arch.
19
that drawn to indicate anything?
20
your motion?
21
A.
Yes, sir.
Is
Is that
I -- my vehicle was
22
parked to the west of this diagram.
23
through the street in an easterly manner and
24
then looped around the tree and took a
I walked
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
157 1 2
So did you just draw those
dashes at this point of the conversation
4
where they kind of lead into then the circle
5
that indicates you? A.
I'm not sure.
The -- the only
7
dash that I am sure is my movement is the
8
dash that's just north and east of the blob
9
that represents me.
10
Q.
Can you draw a blue line sort of
11
just outside of but following the dash that
12
you are referring to sort of to highlight it
13
in a manner?
14 15
02:28
Q.
3
6
02:27
position behind Mr. Hebert.
(Deponent is drawing) Q.
Okay.
And now if you would take
16
your pen and let's draw a straight line out
17
of the blob you indicate is your position
18
down approximately to the, you know,
19
4 o'clock angle down into the white and if
20
you would write Mitchell, please.
21
(Deponent is drawing)
22 23
MR. LAUFMAN:
We'll back up a
few seconds to get context and restart play.
24
MR. NAPOLITANO:
Backup to
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
158 1 2
23:20. (Audio played.)
3 4
tape at -MR. NAPOLITANO:
6
MR. LAUFMAN:
24:27.
You've indicated
7
the presence I know there's an officer here.
8
Do you know where you were referring to?
10 11
A.
The person indicated is Officer
Kneller. Q.
Okay.
So when you say I know
12
there's an officer here, you're referring to
13
the stick figure that we've identified in
14
this drawing as Kneller?
15
A.
I believe so.
I -- I can't be
16
for sure without listening to the whole thing
17
in its entirety but I believe that that's the
18
person that I'm indicating.
19 02:30
We've stopped the
5
9 02:30
MR. LAUFMAN:
Q.
Okay.
Let's back up about ten
20
seconds and start it again.
21
takes that to get your complete testimony, we
22
can do that.
23
it from start to finish.
24
minutes.
And again if it
I mean, we'll sit here and play It takes about 30
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
159 1
02:30
No.
I'm sorry.
I don't mean
2
the entire interview.
3
testify as to this diagram that I drew, the
4
length of time where I'm describing who is
5
where and who is what would be much easier
6
listening to the entire segment --
If you want me to
7
Q.
Oh, okay.
8
A.
-- and then --
9
Q.
Well, let's --
10
A.
-- you can back up and that --
11
Q.
Let's do that then.
12
A.
-- that would help me to be able
13 14
to tell you without guessing. Q.
Absolutely fair.
Let's do that.
15
We'll start again at a point Mr. Napolitano
16
will designate and we'll let it play for a
17
while and then we'll jump back and parse it.
18
02:31
A.
A.
And I believe that throughout
19
the course of this diagram it also became a
20
physical recreation so there will be times
21
that we're referring to where we are standing
22
relative to each other in the room versus
23
this diagram, so I would need to -- it would
24
be helpful to listen to whatever it is in LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
160
02:31
02:32
1
context and then you can take it out of
2
context and then I'd be able to better answer
3
your question without guessing.
4
Q.
Well --
5
A.
Does that make sense?
6
Q.
It does.
And I never want to
7
guess.
8
certainly not attempt to take anything out of
9
context.
I never want you to guess and I will
I told you, and I meant it, I will
10
let you listen to this as much as you want to
11
make sure that you have a full and fair
12
opportunity to provide testimony that you can
13
stand behind and be held to.
14
certainly portions where you are acting
15
things out in the room and we can hear that
16
and understand that.
17
and my control, even though the City of
18
Cincinnati certainly has the ability to
19
videotape interviews, they chose not to
20
videotape yours, so we're without that.
21
There are
For reasons beyond your
For this portion, my
22
understanding of this tape is that we're
23
looking at the drawing and that's why we're
24
working on this.
If at some point you
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
161
02:32
1
believe that you're showing something
2
physical or something different than this
3
drawing, please feel free to say so and if
4
you need to listen to some or any part of
5
this tape in order to make those
6
determinations, I'll certainly let you do
7
that.
8
A.
Okay.
9
Q.
With that said, let's start at a
10
point Mr. Napolitano will announce and we'll
11
play it, you know, for a reasonable number of
12
minutes until we at least get a sense of it
13
and then we'll stop and see where we stand.
14
A.
15 16 17
02:45
Thank you. MR. NAPOLITANO:
Go back to the
beginning of the drawing portion 21:40. (Audio played.)
18
MR. NAPOLITANO:
19
MR. LAUFMAN:
33:49.
Okay.
So we kind
20
of listened to that chunk because it includes
21
the drawing.
22
of that that include, let's call it, the
23
spatial descriptions.
24
you guys up and moving in the room and things
There were certainly portions
I mean, we can hear
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
162
02:45
1
like that.
2
earlier?
That's what you were referring to
3
A.
Yes, sir.
4
Q.
Okay.
5
is go back and kind of pick up where we were
6
now that you've had an opportunity to hear
7
that in full and finish making sure we
8
understand everything that you put down in
9
this drawing.
10
A.
Okay.
11
Q.
Okay.
12
MR. LAUFMAN:
Greg, do you have
13
a reference in your notes whereabouts we
14
were?
Go like --
15 16
MR. NAPOLITANO:
MR. LAUFMAN:
18
right.
19
we're at.
20
That sounds about
Let's pick up at 23:30 and see where
(Audio played.)
21 22
I want to say
23:30.
17
02:46
What I'd like to do then
MR. LAUFMAN:
Okay.
We've
stopped at?
23
MR. NAPOLITANO:
24
MR. LAUFMAN:
24:44.
24:44.
And the
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
163 1
detective has asked you a question about
2
essentially I think trying to sort of
3
describe which officers and where you know
4
they are and I think we hear you indicate
5
something about I think there's another
6
officer here.
7
referring to?
8 9 02:47
A.
The position of another officer
that I knew was there.
10
Q.
Okay.
11
A.
On the diagram?
12
Q.
Yes.
13
A.
I'm assuming it's this is circle
14
16
And where was that?
right here by the curb.
15
Q.
Okay.
And do you know who that
officer was --
17
A.
No.
18
Q.
-- that you're referring to in
A.
No.
19 02:48
Do you remember what you were
20
that? There was a -- the problem
21
with this kind of diagram and the problem
22
with this kind of scene is that everything
23
changes.
24
showed up I recall Kneller facing Mr. Hebert
It changes quickly.
When I first
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
164
02:49
02:49
1
which would lead me to believe that the
2
circle next to the curb would be Officer
3
Johnson.
4
took a position of cover it was Officer
5
Johnson that was standing in front of
6
Mr. Hebert.
7
saw Officer Kneller there and then he moved
8
and Officer Johnson moved or if when I first
9
got there I saw Officer Johnson and thought
When I went around the tree and
Whether that means that I first
10
it was Officer Kneller and when I went around
11
the tree Officer Kneller was closer to the
12
wall, I don't know.
13
and the only intent of this diagram was to
14
clear up the north, south, east, west debacle
15
that was going on with Detective Hilbert
16
where we had north, south, east, west
17
confused and even after drawing this and
18
drawing a compass with an end and an arrow
19
pointing north -- in a northerly fashion
20
there was still confusion about which way was
21
east and which way was west.
22
diagram is not to scale.
23
artist.
24
of the morning after a extremely critical
You know, all this is
You know, this
I'm a terrible
And this was taken in the wee hours
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
165
02:50
02:50
1
incident.
2
of the diagram and it's -- you know, I would
3
say that this diagram was done to the best of
4
my ability at the time but looking at it now,
5
you know, I would say that I was certainly
6
wrong because I don't -- I had Officer
7
Johnson and Kneller either mixed up either
8
that or they moved because, you know, it's
9
certainly come to my attention and
So as far as the absolute accuracy
10
understanding that Officer Johnson was
11
standing in front of Mr. Hebert.
12
I'd only been working there for, oh, about
13
three and a half, four months and, you know,
14
it's very possible that I had mistaken who
15
was who.
16
So I'm not -- you know, I'm not sure if
17
Officer Kneller was there to begin with and
18
then moved or if that was Officer Johnson
19
when I approached.
20
know is that Officer Johnson was the one that
21
Bones tried to kill.
22
At the time
It's also possible that they moved.
Q.
I don't know.
What I do
When you were giving this
23
statement to the homicide detectives, you
24
were attempting to be as accurate as LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
166 1 2
A.
3
after this, yes.
4
best to be as accurate as possible.
5
02:51
Q.
To the best of my knowledge I was -- I was doing my
And that would be part of your
6
duties and responsibilities as a police
7
officer.
8
A.
That's correct.
9
Q.
And the portion of tape that we
10
listened to as we stopped and started
11
describes the positioning of individuals
12
after you come around the tree and take your
13
cover position.
14
A.
Would you agree?
No, sir.
15
like when I showed up.
16
knowledge.
17
02:51
possible, correct?
Q.
Okay.
That's what it looked To the best of my
And again we can go back
18
and listen to it and we'll go back and listen
19
to it and listen it, but what I thought I
20
heard you describe is I came around the tree,
21
I stood here, and you put a dot, and drawing
22
aside, the detectives asked you follow-up
23
questions to sort of clarify that.
24
where were you standing exactly, and you
You know,
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
167
02:52
1
indicate to them.
2
for itself.
3
word here or there you say as far to the side
4
of the sidewalk as you can be next to the
5
grass.
If my paraphrasing is off by a
Something to that effect, correct?
6
A.
Yes, sir.
7
Q.
You tell the detectives that
8
Mr. Hebert is sitting on the ground facing
9
west, correct?
10
A.
That's what I say.
11
Q.
And you tell them that there is
Correct.
12
an officer standing in front of Mr. Hebert
13
facing east, correct?
14
A.
That's correct.
15
Q.
So the only point of concern, if
16
I understand you correctly, is that you're
17
saying you may have mistaken Officer Kneller
18
for Officer Johnson?
19 02:52
And again the tape speaks
20 21
A.
I may have mistaken Officer
Johnson for Officer Kneller. Q.
And so in the homicide
22
interview, if I'm understanding your
23
testimony correctly, the officer standing at
24
Mr. Hebert's feet at the time you take the LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
168 1
position to the east of the tree to cover the
2
situation is, as you sit here today, believed
3
to be Officer Johnson?
4
A.
5
face -- the officer standing in the center of
6
the sidewalk facing Mr. Hebert is Officer
7
Johnson.
8 9 02:53
02:54
As I sit here today the officer
Q.
Though you would agree you
identified that officer, and the tape speaks
10
for itself, as Officer Kneller in the hours
11
following the incident?
12
A.
That's correct.
13
Q.
Let's go ahead and restart the
14
tape.
15
the point.
16
another officer.
17
I think you indicated the circle already.
18
Can you take the pen and go up the diagram
19
into a clear area between the designations
20
you already have and at this point listening
21
to the tape you're not able to identify who
22
that officer was, is that correct?
23
can go back and listen to that portion but my
24
recollection is you say there's another
Oh, I'm sorry.
Before you do.
I lost
You described the presence of Can you take the pen -- and
And we
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
169 1
officer over here but I don't know who it is
2
or something to that effect.
3
02:54
A.
I could fairly identify who
4
that officer is because what I believe when I
5
showed up to the scene Officer Kneller was
6
standing more towards the front of
7
Mr. Hebert.
8
standing more towards the curb.
9
two officers must have moved when I came
There was another officer Now, those
10
around the tree and I can explain that later
11
when we talk about my line of sight --
12
Q.
Uh-huh.
13
A.
-- and when I decided to fire
14
and where the officers were in relation to
15
each other.
16 17
Q.
19 20
Okay.
Well, let's go ahead and
restart the tape and see where it takes us.
18
02:55
No.
MR. NAPOLITANO:
Beginning again
at 24:44. (Audio played.)
21
MR. LAUFMAN:
22
chagrin of Detective Hilbert there's a
23
discussion of directions.
24
you're actually putting the east, west and
Perhaps to the
Is this where
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
170 1 2
A.
That's correct.
3
Q.
Okay.
4
before was the north? A.
Correct.
6
Q.
And Detective Hilbert seemed to
8 9 10
be struggling with east and west? A.
That's correct.
There was a
directionally challenged moment. Q.
But you were not.
You
11
understood and you added to and we can see on
12
Exhibit 19 where south, east and west are
13
added in a sort of smaller lighter hand.
14
A.
That's correct.
15
Q.
Okay.
And that's what we just
16
heard you on the tape add to the compass
17
rose, correct?
18 19 02:56
So all that was there
5
7
02:56
south on the compass rose?
20
A.
That is correct.
(Audio played.) Q.
Okay.
So we have an officer
21
standing on the sidewalk that you have now
22
identified as Officer Kneller or Johnson,
23
correct?
24
A.
Correct.
At the time Mr. Hebert
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
171 1
stands up, the officer on the sidewalk is
2
Officer Johnson.
3
Q.
4
sidewalk facing Mr. Hebert -A.
That's correct.
6
Q.
-- correct?
(Audio played.)
8 9
MR. LAUFMAN:
Okay.
We've
stopped the tape at --
10
MR. NAPOLITANO:
11
MR. LAUFMAN:
26:51.
-- 26:51.
You
12
describe that you see Mr. Hebert stand,
13
correct?
14
A.
That's correct.
15
Q.
And take a step in a westward
16
direction, correct?
17
A.
Correct.
18
Q.
Towards Officer Johnson,
19 02:58
But he's standing on the
5
7
02:58
Okay.
correct?
20
A.
Correct.
21
Q.
And at some point you observe
22
him remove what you believe to be a knife
23
from his pocket, correct?
24
A.
I'm sorry.
Repeat the question.
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
172 1
Q.
2
what you believe to be a knife from his
3
pocket?
4
A.
5
a knife.
6
pocket.
7
9
I saw him remove a knife from his
Q.
Okay.
Let's stop there.
The
officers -- the detectives have asked you to
10
describe your position relative to Mr. Hebert
11
at the time the knife is removed from his
12
pocket, correct?
13
A.
Yes.
14
Q.
You indicate you are behind him,
15
03:00
Well, there was no doubt it was
(Audio played.)
8
03:00
At some point you see him remove
correct?
16
A.
Yes.
17
Q.
And to his right, correct?
18
A.
Yes, sir.
19
Q.
Which would place you in a more
20
northern position than he, correct?
21
A.
Correct.
22
Q.
He's essentially still in the
23
middle of the sidewalk and you are at the
24
edge? LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
173 1
A.
area if not one foot on the grass and one
3
foot on the sidewalk area.
5
Q.
I think we agree you never
travel back around the tree --
6
A.
That's correct.
7
Q.
-- correct?
8
You never move
north of the tree?
9
A.
10
resolved.
11
Q.
Not until after the incident was Yeah. Understood.
So your movement in
12
a north direction is limited by the tree
13
either physically that you would bump into it
14
or by your line of sight, correct?
15
03:01
By -- right by the grassy
2
4
03:00
Yeah.
A.
No.
I could have moved -- I
16
could have moved north and still had line of
17
sight.
18
Q.
19
question.
20
move north of the tree, correct?
21
Maybe it was a poorly worded Forgive me.
A.
We know you don't
I do not move north of the tree
22
until after the shots are fired and I
23
retrieve the dog.
24
Q.
Okay.
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
174 1 2 3
03:02
To the best of my knowledge.
(Audio played.) Q.
We stopped the tape at 28:18.
4
Is this a part where you are now physically
5
putting the detectives in the position of the
6
individuals?
7
A.
Yes, sir.
8
Q.
Okay.
9 03:02
A.
10
So you have taken one of
the detectives and placed him in the position of Mr. Hebert, is that correct?
11
A.
That is correct.
12
Q.
Do you remember which detective
13
that was?
14
A.
No, sir.
15
Q.
And you place yourself then
16
physically in the position that you were
17
standing at this time you're describing,
18
correct?
19
A.
Relative to Mr. Hebert, yes.
20
Q.
And we have heard moments ago,
21
it's taking longer to go through in
22
deposition what is passing in seconds in the
23
room, in a position further east and further
24
north of the Mr. Hebert, correct? LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
175 1
A.
That is correct.
2
Q.
To the point that you are able
3
to see, presumably, his right hand and right
4
pocket as you are describing.
5
into his right pocket.
7
pants -- pants pocket.
9
Q.
His right front
So you are far enough around his
right side to be able to see that?
10
A.
That's correct.
11
Q.
And Officer Johnson is standing
12 13 14
directly in front of him? A.
16
That is correct.
(Audio played.)
15
MR. LAUFMAN:
We've stopped the
tape at --
17
MR. NAPOLITANO:
18
MR. LAUFMAN: -- 28:28.
19 03:03
I can see him place his hand
6
8
03:03
A.
20
28:28. Is this
the first time you have seen the knife? A.
I'm sorry.
The first -- at this
21
point is this the first time that I've seen
22
the knife?
23 24
Q.
Correct.
This is you're
describing him pulling the knife out of his LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
176
03:04
1
pocket.
2
this is the first time you have seen the
3
knife.
4
its appearance?
This is when the knife sort of makes
5
A.
This is correct.
6
Q.
And we hear you describe it, and
7
again the tape will always speak for itself,
8
as pulling a long blade out of his pocket,
9
correct?
10
A.
Yes, sir.
11
Q.
And it -- it emerged in that
12
fashion.
13
sliding out of his pocket, correct?
14
You saw the long silver blade
A.
I saw him put his hand in his
15
pocket, pull out what appeared the beginning
16
of a handle and then as his -- as he
17
continues to pull this handle out the blade
18
is -- appears to be coming out of his pocket.
19 03:04
In the description of this incident,
Q.
And did you describe it as a
20
long silver blade?
21
description.
22 23 24
A.
Something to that
It's a long -- it's a switch --
it's a long switchblade is what it is. Q.
You have seen switchblades
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
177 1
before, correct?
2
A.
Yes, sir.
3
Q.
You have, in fact, seen this
4 5
A.
I have.
6
Q.
You are familiar with the action
7
03:04
required to open a switchblade, --
8
A.
Yes, sir.
9
Q.
-- correct?
That they are
10
typically spring loaded with a button on the
11
side?
12
A.
Yes, sir.
13
Q.
You would agree that you never
14
describe to the officers the switchblade
15
being opened in your presence, correct?
16
A.
I never described to the --
17
Q.
The detectives the switchblade
18
03:05
switchblade, correct?
being opened in your presence.
19
A.
The --
20
Q.
Not open.
21
A.
It appeared to me that it came
22 23 24
Being opened.
out as an opened blade from his pocket. Q.
That was my next question.
That
by your -- by your assessment it came out of LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
178
03:05
03:06
1
his pocket open.
2
A.
No.
By my assessment it
3
appeared to come out of his pocket open.
4
way that a switchblade operates it is
5
possible for that to actually occur where it
6
comes out of a pocket and is opened and it
7
all appears that the blade is coming out of
8
the pocket.
9
the way the switchblade opens it's possible
The
From the position that I was in
10
that it could have been closed in his pocket
11
and then been opened.
12
that he had a hole in the bottom of his
13
pocket and the knife went all the way down
14
his leg.
15
the entire foot and a half long blade or foot
16
and a half long implement including the
17
handle and the blade came out of his knife --
18
or came out of his pocket while opened.
19
That's what it appeared.
20 21 22
It's also possible
But appeared to me at the time that
Q.
We'll restart the tape.
(Audio played.) Q.
We've stopped the tape again
23
very quickly at 28:33.
24
Mr. Hebert taking a step, correct?
You are describing
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
179 1
A.
Yes, sir.
2
Q.
And you indicate that he took a
3 4
A.
That's correct.
5
Q.
And this is again in a westward
6
direction towards Officer Johnson?
7
A.
That's correct.
8
Q.
Who is standing in the middle of
9 03:06
step with his left foot, is that correct?
10 11
the sidewalk. A.
(Audio played.)
12 13
03:07
That's correct.
MR. LAUFMAN:
We've stopped the
tape at?
14
MR. NAPOLITANO:
15
MR. LAUFMAN:
28:50.
28:50.
You have
16
just described your efforts to obtain a clear
17
line of fire using the backdrop of the wall
18
and the terrain --
19
A.
Uh-huh.
20
Q.
-- is that correct?
21
A.
That's correct.
22
Q.
Are you still in the same
23
position you had described on the edge of the
24
sidewalk nearest the tree? LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
180 1
A.
No, sir.
2
Q.
Where have you moved to?
3
A.
I moved in a southwesterly
4
direction to close the distance between
5
myself and Mr. Hebert and more towards the
6
center of the sidewalk so that my line of
7
fire was going to be in a more westerly than
8
southerly direction.
9 03:08
Q.
10
lines of fire and backdrops and things of
11
that nature.
12
tactical training to make sure that you have
13
a clear line of fire before discharging your
14
weapon, is that correct?
15
A.
It is certainly part of your
There should -- you should try
16
to avoiding having anything between you and
17
the target that you're intending to hit.
18
Q.
Well, I think that's a great
20
A.
That's a clear line of fire.
21
Q.
How about behind the target?
22
A.
That's a backdrop.
23
Q.
Okay.
24
A.
You want to make sure that
19 03:08
Let's talk a little bit about
idea.
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
181 1
there's nothing of valuable or, you know,
2
nothing -- nothing valuable such as human
3
life, animals, property that can be avoided
4
to be damaged behind the intended target.
5
03:09
And I think -- and forgive my
6
ignorance when it comes to police tactics.
7
What I've learned has largely been through
8
depositions such as these.
9
reasons or one of the manners in which to
One of the
10
effect that is to take an angled position.
11
What I've heard referred to as a cover
12
position sometimes in an L shaped --
13
something like that.
14
your knowledge and understanding?
15
03:09
Q.
A.
Does the comport with
In a situation where you're
16
going to have two officers in a scenario
17
where there's going to be shots discharged at
18
a target, at the very least you want to try
19
to triangulate that target meaning to be in
20
an L shape or a V shape.
21
be in a straight line.
22
Q.
You never want to
And would you agree that that's
23
part of your training even in circumstances
24
where you don't know shots are gonna be LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
182 1 2
A.
That's -- that's correct.
You
never want to have a -- you never want to
4
have a suspect in between -- directly in
5
between two officers. Q.
Right.
So is that why when we
7
look at the diagram when you took your cover
8
position you're somewhat off to the side?
9
You make sure you're not in a direct line of
10
the sidewalk with the other individuals.
11
A.
That's correct.
12
Q.
And when it comes to discharging
13
your firearm the backdrop you indicated
14
previously is certainly crucial because you
15
want to know where the round is going to
16
potentially go, correct?
17
03:10
It's just a good cover position?
3
6
03:10
fired?
A.
You want to do your absolute
18
best to make sure that you put no one behind
19
the intended target in harm's way.
20
Q.
Right.
You certainly want to --
21
you would not want to get in a cross fire
22
situation where you need to shoot an
23
individual who is directly in line with you
24
and another officer. LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
183 1
A.
Or any other person but yes.
2
Q.
Sure.
3
hear you describing is you're moving to the
4
middle of the sidewalk in order to have a
5
clear both line of fire and backdrop
6
involving Mr. Hebert, correct?
7
A.
That's correct.
8
Q.
We'll back up about ten seconds
9 03:11
10
to get our position on the tape and restart at --
11 12 13
MR. NAPOLITANO:
28:40.
(Audio played.) Q.
Okay.
And here we hear you
14
telling the homicide detectives that you are,
15
in fact, assuring your clear backdrop,
16
correct?
17
03:12
And in this case what we
A.
When I took my initial cover
18
position I had a good backdrop and then I had
19
to move to maintain a clear backdrop.
20
Q.
Well, let's back up further
21
because I think that's what you're
22
describing.
23
say to them but let's go back 20 seconds or
24
so, so that we understand clearly.
I mean, that's what I hear you
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
184 1
MR. NAPOLITANO:
2
MR. LAUFMAN:
3
03:13
MR. LAUFMAN:
Okay.
We've
stopped at?
6
MR. NAPOLITANO:
7
MR. LAUFMAN:
28:43.
28:43.
And we
8
hear you describing that you have taken a
9
step to assure that the officer is not in
10
your line of fire, correct?
11
A.
Yes, sir.
12
Q.
You agree you have just told the
13
homicide detectives that you took a step in
14
order to clear your line of fire?
15
03:13
We'll try 28:29.
(Audio played.)
4 5
28:29.
A.
I told the officer that I took a
16
step which I means I moved from the position
17
I was in --
18
Q.
Right.
19
A.
-- at the time of this diagram
20
to the position that I was at the time I
21
discharged the firearm --
22
Q.
Understood.
23
A.
-- to maintain a clear line
24
of -- or clear backdrop. LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
185 1
Q.
2
having just told them I took a step, you
3
describe to them your backdrop.
4
the tape.
5
7
03:14
We'll start
(Audio played.)
6
03:14
I think in your next sentences,
Q.
And to have a clear backdrop
with the wall and the terrain --
8
A.
Okay.
9
Q.
-- correct?
10
A.
That's correct.
That's what I
11
said.
12
on Chase Avenue between Florida and Georgia
13
Street which encompasses about 15 -- ten --
14
ten houses give or take.
15
terrain is the same through that -- through
16
the majority of that entire block.
And the wall and the terrain extends
So that wall and
17
Q.
It's a pretty straight sidewalk.
18
A.
That's correct.
19
Q.
Okay.
20 21 22 23 24
And the wall runs down
much of the left side of that sidewalk? A.
All of it.
At least to --
between Georgia and Florida Streets. Q.
Yes.
And you had picked that wall and
the terrain as your backdrop for a safe LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
186 1 2
03:15
03:15
discharge of your firearm. A.
The safest direction to
3
discharge a firearm would be in the direction
4
of the wall and the terrain versus straight
5
down the street or straight up the street or
6
northerly towards the other side of the
7
street where there are houses that don't have
8
the protection of the wall and the terrain.
9
Q.
That's seems logical.
10
A.
So anything -- anything in a
11
moderately southerly direction was the -- my
12
intended backdrop.
13
the wall and the terrain.
14
ensure that I had a clear backdrop.
15
forced to take a step to ensure I had a clear
16
backdrop.
17
Q.
My intended backdrop was I took a step to I was
How did taking a step ensure
18
that you had a clear backdrop you -- because
19
you moved slightly more southerly, correct?
20
A.
That's correct.
21
Q.
You moved from the edge of the
22 23 24
sidewalk to the middle of the sidewalk. A.
That's correct.
And also east
or westerly towards Mr. Hebert. LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
187 1
your weapon in a direction which you knew
3
would be southerly enough to have a safe
4
backdrop of the wall and the terrain?
6
03:16
And that enabled you to fire
2
5
03:16
Q.
A.
And also to avoid shooting a
police officer who was --
7
Q.
8
sidewalk?
9
A.
Who was in the middle of the
Who was moving to avoid being
10
murdered by Mr. Hebert.
11
has been irking me about these diagrams is
12
they show no movement, they show no
13
relativity and they show in no way, shape or
14
form the way that this situation evolved
15
because of Mr. Hebert's actions.
16
when we talk about where people's positions
17
are at which particular point in time,
18
it's -- it's been frustrating for me to
19
listen to the other depositions and it's, I'm
20
sure, apparent that I'm little frustrated
21
with this because these diagrams do not have
22
any accuracy as far as how this thing turned
23
into a mess.
24
Mr. Hebert took moved his position relative
The thing that is --
There's --
You know, the actions that
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
188
03:17
1
to me and my line of fire that I had already
2
established.
3
line of fire.
4
which took him -- which put him further into
5
my line of fire.
6
sure that he wasn't in my backdrop and all of
7
this was, you know, precipitated by the
8
actions of Mr. Hebert and which way he moved,
9
how he moved, the way that he held the knife,
Officer Johnson then moved
I had to take steps to make
10
the way that my officers responded to him.
11
So the initial backdrop that I had was to
12
shoot -- was to have a line of fire that was
13
going to be in between two officers into the
14
terrain into the wall.
15
03:17
It put Officer Johnson into my
Now, when Mr. Hebert stood up
16
and moved and my officers reacted, that means
17
that I had to move to adjust my line of fire
18
so that the officers would not be in my
19
backdrop because the way that -- that all the
20
movement happened, it put the officers in my
21
backdrop.
22
I would have shot him right in the back but
23
the way that he moved and the way that my
24
officers responded as he's coming down with
I would have shot him in the back.
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
189
03:18
03:19
1
the knife I thought that my hesitation was
2
long enough to cause him to be able to murder
3
one of my policemen because I -- he was -- I
4
was gonna shoot him with the knife in the air
5
with the knife up in -- with his hand all the
6
way up in the air but when he -- when he came
7
down I -- or when he -- when he -- when he
8
did that, my officers moved and I had to
9
hesitate and I allowed him to bring that
10
knife down in a slashing motion and I thought
11
that that was going to cause the death of one
12
of my policemen because I had to hesitate
13
because of the way he moved and that -- that
14
I was not gonna put one of my officers in
15
danger of me killing them by having them in
16
my backdrop so I had to move.
17
Q.
In between which two officers?
18
A.
My initial line of fire was
19
going to be in between Officer Kneller and
20
Officer Johnson.
21
Q.
22
this point?
23 24
Where was Officer Kneller at
A.
He would have been southerly of
me. LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
190 1
Q.
In front?
2
A.
It would have been more of like
03:20
Next to?
3
a V shape where the -- Mr. Hebert would be in
4
the center.
5
03:19
Behind?
Q.
So to clear Officer Kneller you
6
would have had to have stepped in a northerly
7
direction?
8
A.
No, sir.
9
Q.
Help me understand that.
10
A.
Well, a bullet travels in a
11
straight line from where you aim it until
12
where it ends up and officer John -- or
13
Officer Kneller would have been to my left
14
and Officer Johnson would have been to my
15
right on my line of fire with Mr. Hebert in
16
the middle.
17
up and I had to move, I couldn't move north
18
because that would have taken my line of fire
19
and made it more southerly and that would
20
have exposed Officer Kneller.
21
keep it the way it was because Officer
22
Johnson moved into my backdrop so I had to
23
move southerly and aim more southwesterly to
24
maintain backdrop of the stone wall and the
Now, when the -- when he stood
I couldn't
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
191 1
terrain and avoid Officer Johnson and I had
2
to aim to the farthest left -- the leftern
3
most part of -- of Mr. Hebert as he's coming
4
down in a slashing motion to try to make
5
sure -- to ensure as best as I can that my
6
officer isn't in my line of fire or in my
7
backdrop.
8
Q.
9 03:21
fire, and I'm imagining myself in your shoes
10
on Chase Avenue, Officer Kneller would have
11
been clear to the left of your line of fire?
12
A.
That's correct.
13
Q.
Officer Johnson would have been
14
03:21
So if I understand your line of
clear to the right of your line of fire?
15
A.
That's correct.
16
Q.
And your shot would have been
17
angled sufficiently south and west to have
18
the wall and/or the terrain as a backdrop.
19
A.
South by southwest, yes.
20
Q.
We are currently at 28:50.
21 22
We'll restart the recording. (Audio played.)
23 24
MR. LAUFMAN:
We stopped the
tape at? LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
192 1
MR. NAPOLITANO:
2
MR. LAUFMAN:
You
described to the homicide detectives that you
4
see Mr. Hebert go down immediately after
5
being struck by your two shots, is that
6
correct?
7
A.
That's correct.
8
Q.
You never saw him throw the
knife, correct?
10 11
13
A.
No, I did not see him throw the
Q.
At this point in time you did
knife.
12
not know where the knife was?
14
A.
That's correct.
15
Q.
I think we hear later that you
16
say, you know, it may be underneath him.
17
mean, I don't know where it is.
18
03:23
29:19.
3
9 03:23
29:19.
A.
That's correct.
I
If there's not
19
a question on the table I'd like to take a
20
break.
21 22
Q. table.
There is not a question on the
You are welcome to take a break.
23
A.
Thank you.
24
Q.
We may go off the record.
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
193 1 2 3
VIDEOGRAPHER: record. (Break taken.)
4 5
VIDEOGRAPHER:
MR. LAUFMAN:
Mr. Mitchell,
7
we're back on the record after a short break
8
which you requested.
9
work our way through the audio tape of your
10
homicide recording and do so in conjunction
11
with the drawing that you had made which are,
12
just to get us back dialed in, Exhibits 19
13
and zoomed in a little bit Exhibit 20.
14
me just clarify before we begin, these are
15
drawings you made, correct?
We were continuing to
A.
Yes, sir.
17
Q.
At the request of homicide,
Let
16
18
03:39
We're on the
record with DVD number three.
6
03:39
We're off the
correct?
19
A.
Yes, sir.
20
Q.
But they didn't put anything on
21
them.
22
the tree, you put people where they were.
23
mean, this was your effort to depict the
24
event for the homicide detectives, correct?
I mean, you drew the streets, you drew I
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
194 1
a point of reference to where people were and
3
what position he was.
5
Q.
And you did so to the best of
your ability?
6
A.
Yes, sir.
7
Q.
And it was accurate at the time
8 9
you did it? A.
At the time I made this drawing
10
it was as accurate of a representation that I
11
could make to assist the homicide detectives
12
in having a general understanding of where
13
people were initially to the best of my
14
knowledge.
15
03:40
This was my effort to give them
2
4
03:40
A.
Q.
And that's the positioning and
16
the arrows and the descriptions that we have
17
gone through thus far, correct?
18
A.
That's correct.
19
Q.
Okay.
Is there a position or a
20
mark on this drawing that shows where you
21
were at the time you fired the shots that
22
struck Mr. Hebert?
23
A.
No, sir.
24
Q.
Do you know where you were at
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
195
03:41
03:41
1
the time you fired the shots that struck
2
Mr. Hebert?
3
A.
Yes, sir.
4
Q.
Can you take the blue pen -- and
5
let me give you some instructions before you
6
do it, and you've sat through a couple of
7
these depositions thus far.
8
draw a line across the sidewalk that is
9
intended to represent your shoulders as
Why don't you
10
though viewed from above.
11
want an X that shows kind of where you were.
12
I want a straight line that shows your
13
shoulders so we can get a sense of are you
14
facing north, are you facing straight west,
15
are you facing south by southwest.
16
understand?
Okay?
So I just
Do you
17
A.
Yes, sir.
18
Q.
If you would draw that line on
19
the position you were standing at the time
20
Mr. Hebert was shot.
21 22
(Deponent is drawing) Q.
Why don't you pass that to your
23
attorneys so they can have an opportunity to
24
view and then I'll ask them to pass it to us. LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
196 1 2
MR. HARDIN: blue pen.
3 4
MR. LAUFMAN: mark on my Exhibit. MR. HARDIN:
6
MR. LAUFMAN:
9
I was a little
MR. STACKPOLE:
I've never seen
that done before.
10 11
I'm not.
worried there.
8
MR. HARDIN:
Don't anticipate my
MR. LAUFMAN:
May I see that for
intentions.
12 13
a moment, Mr. Mitchell?
14
record, you have drawn the blue line in the
15
general area of the head of the stick figure
16
previously identified as Mr. Hebert, correct?
17 18
03:43
Mr. Hardin, don't
5
7
03:42
Let me have the
A.
For purposes of the
For identification purposes to
where the line is --
19
Q.
Correct.
20
A.
-- on this drawing, yes, sir.
21
Q.
And nobody thinks you were
22
standing on his head.
23
A.
I would hope not.
24
Q.
Mr. Hebert had stood by this
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
197 1
point.
2
on the sidewalk that you were in and the
3
direction your body was facing at the time
4
you fired the shot.
5 6 7
03:43
03:44
You are simply showing the position
A.
The direction my shoulders were
facing, yes. Q.
Okay.
Can you now draw in for
8
us the line of fire, the direction your gun
9
would have been pointed to have the backdrop
10
you have previously described?
11
A.
At the time I fired the shots?
12
Q.
Yes, sir.
I mean, literally
13
when you said before a bullet travels in a
14
straight line from the moment it leaves the
15
gun until it stops something.
16
mean, assume that your firearm instead of a
17
projectile would have emitted a -- you know,
18
a visible laser beam.
19
that that would have been on so that we can
20
see the angle.
21
A.
You know, I
I mean, draw the beam
I really can't.
I can give you
22
a general direction but I can't give you an
23
exact line of fire because this is in
24
absolutely no way, shape or form to any type LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
198 1
of relative scale that would allow me to do
2
that.
3
range?
5
this general, you know, sort of a -- like if
6
you were to draw a cone, you know, somewhere
7
would have been here.
9
03:45
Can you indicate a potential
4
8
03:44
Q.
I mean, sort of it would have been in
A.
And I can draw a straight line
and I can draw a cone, --
10
Q.
Uh-huh.
11
A.
-- however, neither of them
12
would give a extremely accurate
13
representation of -- on -- on this diagram.
14
The diagram is wide and short and for me to
15
accurately represent a line of fire, it would
16
need to be on a to -- on a to scale drawing.
17
I can give you an approximation, close
18
estimation, but for me to give you an exact
19
line of fire, I would be unable to do.
20
Q.
I'll take the approximation and
21
I will say on the record it is an
22
approximation.
23
A.
Very well.
24
Q.
You have told me that.
I
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
199 1
understand that.
2
A.
it okay if I draw the line of fire from the
4
right side of the -- my shoulders?
6
Q.
8
I think that would be
appropriate.
7
A.
Thank you.
Q.
Hand it to your attorneys again.
10 11
Thank you.
(Deponent is drawing)
9
MR. HARDIN:
I'm not gonna mark
on his drawing again.
12
MR. LAUFMAN:
13
the tape.
14
seconds.
15
us a starting point.
Let's go back to
Back us up about five, ten Let us remember where we are.
16
MR. NAPOLITANO:
17
MR. LAUFMAN:
18 19 03:47
Is
3
5
03:45
I shoot a gun right handed.
20
Give
29:04.
We're starting at
29:04. (Audio played.) Q.
We've paused it for a moment.
21
The -- at 29:40 the detectives are asking you
22
about the officer, the 5900 car.
23
hear that portion?
24
A.
Did you
Yes, sir.
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
200 1
03:48
Q.
2
are you identifying the officer who I think
3
was previously identified as Kneller but you
4
are now saying you believe to be Officer
5
Johnson?
6
A.
Yes, sir.
7
Q.
Okay.
I believe so.
And I think you made that
8
connection because those two officers, if I
9
understood your earlier discussion with
10
homicide, was that they both drove 5900 cars?
11
A.
That's correct.
12
Q.
And what is a 5900 car?
13
A.
At the time district five third
14
relief was fielding a 5900 series cars.
15
were designated to assist in the reduction of
16
robbery and other violent crimes in the
17
Clifton area primarily.
18
The University of Cincinnati
20
A.
That's correct.
21
Q.
And so when you heard the
They
Q.
19 03:49
And at this point in the tape
area?
22
dispatches coming over people presumably
23
identify themselves by unit number?
24
A.
That's correct.
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
201 1
have a designation of five nine something,
3
something?
5 6 7
03:50
And those unit numbers would
2
4
03:49
Q.
A.
It actually would have been 5396
or 5496. Q.
Okay.
So it's that 90
designation --
8
A.
Correct.
9
Q.
-- that would have told you?
10
A.
Correct.
11
Q.
And so it's when you heard those
12
two calling over that you knew it was one of
13
those two cars because --
14
A.
Well, and I knew --
15
Q.
-- both of them responded?
16
A.
That's correct.
And I also knew
17
that the officers -- that Officer Kneller and
18
Officer Johnson were assigned in that
19
capacity.
20
Q.
So when this officer is
21
saying -- when the detective is saying to you
22
where is the 5900 officer, I think he's
23
attempting to resolve any confusion between
24
Kneller and Johnson and just sort of saying, LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
202
03:50
1
you know, this -- this body that you had
2
talked about where are they now.
3
correct?
4
A.
That's correct.
5
Q.
And where was Officer, we now
6
believe, Johnson standing at the time you
7
fired the shots?
8
A.
You want me to draw it on here?
9
Q.
If you could, please.
A.
How -- how would you like me to
10 11 12
03:51
Am I
Point
first.
draw it?
You want me to point first?
13
Q.
Yeah.
14
A.
He would have been somewhere in
15
this area here or here or the -- the -- the
16
way that he backed up and towards the wall --
17
again, this is nothing near being to scale
18
and I don't believe that I can accurately
19
represent line of fires and people's
20
positioning on this.
21
Q.
Diagram.
22
A.
This was -- again, this was
23
intended to be a reference point for homicide
24
detectives to have a general idea. LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
203 1 2
response to Mr. Hebert? A.
Yes, sir.
4
Q.
In which direction?
5
A.
He moved in a southwesterly
7 8
direction. Q.
So he moved closer to the wall
and further down the street away from you?
9
A.
That's correct.
10
Q.
And that is partially what put
11
03:51
Did Officer Johnson move in
3
6
03:51
Q.
him into your line of fire.
12
A.
That's correct.
13
Q.
And what required you to shoot
14
as much on Mr. Hebert's left as possible to
15
avoid having him in your backdrop --
16
A.
That's correct.
17
Q.
-- correct?
18
A.
I had to -- my initial line of
19
fire would have been much more south by
20
southwest and it ended up having to be
21
resolved -- my line of fire had to be
22
modified to a more west by southwest
23
direction.
24
Q.
And you're aiming left to keep
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
204 1
your line of fire and your backdrop away from
2
Officer Johnson.
3
A.
That's correct.
4
Q.
Officer Johnson whom you
5
previously testified is to the right of your
6
line of fire?
7
03:52
A.
He moved into
8
my line of fire so I had to adjust my line of
9
fire more to his right or -- I'm sorry -- to
10
my right of him.
11
fire right of him.
12
Q.
I had to move my line of
I asked you earlier at the time
13
you fired the shots where the officers were.
14
Do you remember that testimony?
15 16
A.
At the time I fired the shots
where the officers were.
17
03:53
Initially, yes.
Q.
And we discussed that Officer
18
Kneller was to your left of your line of
19
fire.
20
A.
Yes, sir.
21
Q.
And that Officer Johnson was to
22 23 24
the right of your line of fire? A.
That was when I was in a
position on the -- near the grass and my LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
205 1
initial cover position.
2
had moved.
3 4 5 6 7
03:53
Well, the prior testimony will
speak for itself. A.
If you'd like we could read it
back if it would help clarify. Q.
It's a nice thing is they take
8
it down and transcribe it and put it into
9
book form but I will allow you to testify as
10
you choose.
11
map to the best of your ability at the time
12
you pulled the trigger and shot Mr. Hebert.
13 14
03:54
Q.
That was before I
A.
Place Officer Johnson on that
I really can't.
The reason --
would you like to know the reason I can't?
15
Q.
Sure.
16
A.
Because this drawing is terribly
17
not to scale and the way that the positioning
18
is moved, the way that people move versus
19
where people are and the fact that in this
20
particular diagram Mr. Hebert would be about,
21
oh, 15 feet tall if this is his head and
22
these are his feet and the -- I'm just not
23
able to do it.
24
Q.
Is it your testimony today that
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
206 1
Officer Johnson at the time you pulled the
2
trigger would have been to the left of your
3
line of fire?
4
A.
That's correct.
5
Q.
That essentially your line of
6
fire, your backdrop, would have been past him
7
and further down in a westward direction on
8
the street?
9 03:55
A.
10
travel from my perspective he would be to the
11
left of the bullet path from my perspective.
12 13 14 15
Q.
Who's the circle north of the
A.
This is what believe to be
tree?
Officer Johnson --
16
Q.
Okay.
17
A.
-- as I initially approached.
18
Q.
Okay.
19 03:55
As the bullet was -- would
20 21 22 23 24
And then I think you said
but they switched positions? A.
No, sir.
I believe I said that
they moved. Q.
So to your testimony that's
Johnson when you first arrive? A.
Possibly.
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
207 1
Q.
question mark if that's a fair distinction.
3
And I understand that that is at the time you
4
arrive. (Deponent is drawing)
6
Q.
So it's your testimony that
7
Officer Johnson then becomes the individual
8
standing at Mr. Hebert's feet, correct?
9
A.
That's currently marked as
10
Officer Kneller?
11
Q.
Yes.
12
A.
Yes.
13
Q.
And that Officer Kneller then
14
moves --
15
A.
That's correct.
16
Q.
-- correct?
18
A.
He moves to this area here.
19
Q.
Go ahead and put a K for
17
03:56
Let's put Johnson
2
5
03:56
Okay.
20 21
And where does he
go?
Kneller. (Deponent is drawing.)
22
Q.
Now, why are you able to impart
23
Mr. Kneller but you can't put Mr. Johnson in
24
there? LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
208 1
03:57
(Deponent is drawing)
2
A.
J for Johnson.
3
Q.
Can I see it?
4
A.
Sure.
5
Q.
But you have testified on
6
several occasions now that you had to adjust
7
your fire left as far as possible on Mr.
8
Hebert, correct?
9
A.
That's correct.
10
Q.
And you agree that at least
11
according your testimony now Officer Johnson
12
is to the left of your line of fire.
13 14
A.
of my line of fire.
15 16 17
MR. LAUFMAN:
03:59
Go ahead and start
the tape. (Audio played.)
18 19
Officer Johnson is to the left
MR. LAUFMAN:
We've stopped the
tape at?
20
MR. NAPOLITANO:
21
MR. LAUFMAN:
31:12.
31:12.
Correct?
22
I'm gonna ask you that.
23
the homicide detectives here that Mr. Hebert
24
took a step, correct?
31:12.
You've told
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
209 1
A.
Yes, sir.
2
Q.
And you have previously
3
testified that he took that step with his
4
left foot, correct?
5
A.
Yes, sir.
6
Q.
In the direction of Officer, you
7
04:00
04:00
believe now, Johnson correct?
8
A.
Correct.
9
Q.
In a westward direction down the
10
sidewalk?
11
A.
Correct.
12
Q.
Away from you?
13
A.
Yes, sir.
14
Q.
And it's at this point that you
15
say he took the knife up over his head,
16
correct?
17
A.
That's correct.
18
Q.
And I think you've previously
19
said it -- to your knowledge it came out of
20
his pants open?
21
A.
No.
I said it appeared that it
22
came out of his pants open.
23
a switchblade is usually closed while inside
24
a pocket.
To my knowledge,
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Sergeant Andrew Mitchell, 12/17/2014
210 1
Q.
have no recollection, can provide no
3
testimony about seeing the blade snap open? A.
No, sir.
I didn't see -- I
5
didn't see a -- a blade snap open.
6
appeared that it came out of his pocket open.
7 8
10
Q.
You didn't hear the blade snap
A.
No, sir, I didn't hear a blade
snap open.
11 12
It
open?
9
Q.
But you are confident that you
saw the blade in a open posture?
13
A.
Absolutely.
14
Q.
Because if it had been closed
15
04:01
You certainly
2
4
04:01
I would agree.
you wouldn't have shot Mr. Hebert?
16
A.
Not necessarily.
17
Q.
Had he removed a closed
18
switchblade from his pocket you still would
19
have shot him?
20
A.
If he removed an unloaded gun
21
from his pocket he could have still been
22
shot.
23 24
Q.
But guns and knives are
different, aren't they?
Didn't you say that
LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
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Sergeant Andrew Mitchell, 12/17/2014
211 1
earlier?
2 3
A.
knife and manner in which it's carried.
4
Q.
give Mr. Hebert a command in regards to the
6
knife? A.
He said get your hands out of
8
your pockets, keep your hands out of your
9
pockets.
10 11
Q.
Did you hear Officer Johnson ask
Mr. Hebert where the knife was?
12
A.
I don't recall.
Maybe.
As I
13
sit here today, I don't recall.
14
listen -- or listen to or review my interview
15
with homicide.
16
04:02
Did you hear Officer Johnson
5
7
04:01
It depends on the manner of the
Q.
I'd have to
But you will stand on your
17
interview with homicide.
18
listened to the whole thing from start to
19
finish and there's no reference of it, you
20
would stand by that here today.
21
agree?
I mean, if you
Would you
22
A.
As to my knowledge of it, yes.
23
Q.
And it's as he's taking this
24
step towards Officer Johnson that you claim LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
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Sergeant Andrew Mitchell, 12/17/2014
212 1
he made a slashing motion towards the
2
officer, correct?
3
A.
That's correct.
4
Q.
And that is what prompted you to
5
fire the shots?
6
04:03
No, sir.
What prompted me to
7
fire the shots is when he raised the knife up
8
above his head and took a step towards my
9
officer.
I was unable to fire at that point
10
because Officer Johnson moved into my line of
11
fire.
12
Q.
So it was the open knife raised
13
above the head that was the moment for you
14
that you decided to use deadly force?
15
A.
At the moment he raised the
16
knife over his head and took a step towards
17
my officer with an open deadly weapon is when
18
I decided to discharge my firearm.
19 04:03
A.
Q.
And just to be clear, your
20
decision, your justification as we sit here
21
today, for your use of deadly force was that
22
step, that aggressive motion made against
23
Officer Johnson as you have testified thus
24
far today? LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
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Sergeant Andrew Mitchell, 12/17/2014
213 1
A.
2
MR. LAUFMAN:
It's about 4:03.
3
Mr. Stackpole had indicated a need to shut
4
down about 4:00.
5
that.
6
a decent stopping point.
8
MR. STACKPOLE:
MR. LAUFMAN:
Reconvene Friday
back here 10:00 a.m.
11 12
And we will
reconvene on Friday at 10:00?
9 10
I have no objection to
If everybody's okay, we seem to be at
7
04:04
Yes, sir.
MR. STACKPOLE: great.
That sounds
Thank you.
13
MR. LAUFMAN:
With that we'll
14
hold this deposition open and go off the
15
record.
16 17 18 19 20 21 22 23 24 LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
214 1
VIDEOGRAPHER:
This concludes
2
the deposition for today's purposes only at
3
4:03:09.
4 5 6
(Off the video record.) MR. LAUFMAN:
The tape was last
stopped at 31:12 for purposes of the record.
7 8 9
___________________________ SERGEANT ANDREW MITCHELL
10 11
* * * 12
(DEPOSITION CONCLUDED IN 13
PROGRESS AT 4:03 P.M.)
14
* * *
15 16 17 18 19 20 21 22 23 24 LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
Sergeant Andrew Mitchell, 12/17/2014
215 1 2
C E R T I F I C A T E STATE
3 4 5 6 7 8 9 10 11 12 13 14 15 16 17
OF
OHIO : SS COUNTY OF CLERMONT I, Deanne Cartwright, the undersigned, a duly qualified notary public within and for the State of Ohio, do hereby certify that SERGEANT ANDREW MITCHELL was by me first duly sworn to depose the truth and nothing but the truth; foregoing is the deposition given at said time and place by said witness; deposition was taken pursuant to stipulations hereinbefore set forth; deposition was taken by me in stenotype and transcribed by me by means of computer; that the transcribed deposition was submitted to the witness for examination and signature and that signature may be affixed out of the presence of the Notary Public-Court Reporter. I am neither a relative of any of the parties or any of their counsel; I am not, nor is the court reporting firm with which I am affiliated, under a contract as defined in Civil Rule 28(D) and have no financial interest in the result of this action. IN WITNESS WHEREOF, I have hereunto set my hand and official seal of office at Cincinnati, Ohio this 1st day of January, 2015.
18 19 20
___________________ My commission expires: Deanne Cartwright August 4, 2018 Notary Public - State of Ohio
21 22 23 24 LITIGATION SUPPORT SERVICES Cincinnati, Ohio (513) 241-5605 / Dayton, Ohio (937) 224-1990
Electronically signed by Deanne L. Cartwright (501-202-620-8979)
0a27117c-9273-43a9-885d-19f0e490dfe3
