Circumstantial Evidence

Dec 4, 2013 10 AM

W hen Cincinnati Police Officer Orlando Smith struck Natalie Cole with his police cruiser on Nov. 9, his car’s camera malfunctioned and failed to record the collision. Although police quickly closed a small section of Over-the-Rhine to investigate the immediate scene and Cole survived the ordeal, the malfunctioning camera left police and those close to Cole with few assurances as to what exactly happened in the moments leading to the crash. The accident was actually the second time in the past year that Smith’s camera failed to record his actions at a crucial moment in the line of duty. Smith’s camera also malfunctioned on Nov. 21, 2012 when he shot and killed a man during a traffic stop for an undercover drug bust.

According to the police account, Smith fired the first shot after one of three suspects ran out of a car and aimed a gun at Smith. Dontez O’Neal, one of the two suspects still in the vehicle, then fired one shot at Smith and missed. In retaliation, Smith repeatedly discharged his weapon, wounding suspect Robert Matthews and killing O’Neal.

But there’s no recording from Smith’s camera to verify the police’s retelling, even though the shooting played out right in front of Smith’s cruiser.

The events have caused some to question whether the camera genuinely malfunctioned in both incidents. The mothers of the victims allege that police tampering was at fault. The police department maintains that deteriorating equipment was to blame.

“Sometimes those cameras short-circuit. That’s what we think happened,” says Sgt. Julian Johnson, a spokesperson for the Cincinnati Police Department, regarding the Nov. 9 crash in Over-the-Rhine. “The cameras are old. Like anything else, they wear out.”

The police department tries to regularly update the equipment, but new upgrades come at a big cost for a department and city that has felt growing budget constraints the past few years.

Despite the lack of video evidence, the police department stands by Smith’s record.

“Every person that I have spoken with who has discussed the situation with me has said the same thing that (Assistant) Chief (James) Whalen just said: (Smith) is a tremendous police officer and an asset to this police department. And we stand behind it,” Police Chief Jeffrey Blackwell said at a press conference for the Nov. 9 crash.

Smith in May received the Cincinnati Police Medal of Valor for the drug bust after internal police investigations validated his actions.

Others aren’t satisfied with the responses. Attorney Eric Deters is now leading two different lawsuits against Smith on behalf of the mothers of Cole and O’Neal.

Chuck Holbrook, chief investigator for Deters’ law firm, says the two occurrences in one year are too convenient to be the full story.

“I think that’s his M.O. Before something goes down, he shuts the camera off,” Holbrook says. “He does whatever he needs to do to rig his camera so it just shuts off.”

Holbrook acknowledges that there’s no evidence Smith actually tampered with his camera, but he insists he’ll find something as he continues investigating the issue for the two lawsuits.

Councilman Chris Seelbach argues that even if Smith’s story is true, it’s still problematic that there’s no way to verify what police are saying as long as the equipment remains faulty.

“I have no idea why there seems to be a pattern of them malfunctioning, but we have to find out,” Seelbach says. “I think it’s in the best interest of everyone that they’re updated and working properly.”

As Seelbach saw for himself during various police ride-alongs throughout his first term on council, officers routinely check their cameras before heading out on patrol by recording themselves outside of their cruisers.

The dedication to properly working equipment makes sense, according to Seelbach, because the cameras benefit police as much as the general public.

“Many times it would probably be to protect the police officer from claims that they did something wrong. But there will be occasions — hopefully very rare — where they will protect the public from a mistake from a police officer,” he says. “The camera doesn’t lie.”

In the case of Smith, the cameras could validate his innocence. A functioning camera would verify whether he really had his lights and sirens on prior to the Nov. 9 crash or if suspects aimed a gun at him before he opened fire during the Nov. 21, 2012 traffic stop.

Cincinnati Police also lacked video evidence of the 2011 police shooting of David “Bones” Hebert. Police say no dashboard camera recorded the shooting. And after police arrived to investigate the scene of the shooting, only one of six cruisers kept its camera on. No cruiser picked up audio of officers conversing.

According to the police report, Hebert was shot twice and fatally wounded after he allegedly pulled a 13-inch switchblade knife on officers. The officers were responding to a 911 call from Jason Weller that claimed a man fitting Hebert’s profile attacked Weller and stole a pirate sword from his home.

Weller’s intoxicated description of the incident at his home and the police’s interest in justifying the shooting raised many questions about what really happened that night. Some of them might have been answered if police cameras actually recorded the shooting.

Advocacy group Friends of Bones says the accusations are ridiculous because Hebert was never perceived as violent, even when he was intoxicated. Earlier in 2013, Friends of Bones expanded its wrongful death lawsuit against Sgt. Andrew Mitchell to include the city of Cincinnati and three more police officers. The group claims Hebert was wrongfully killed by Mitchell.

Matthew Korte, a close friend of Hebert who is now leading Friends of Bones, says police covered up the homicide scene and misled the public about how the incident unfolded.

“I don’t trust the whole institution,” Korte says. “Especially when there’s loss of life, I think there’s an institutional incentive for them to lose the evidence.”

Friends of Bones is pushing for Cincinnati Police to adopt on-body cameras. If established with the proper policies, the cameras could be hooked onto officers’ glasses or shirts and record everything a cop sees and does.

The American Civil Liberties Union supported the idea in an October 2013 paper.

“Although we generally take a dim view of the proliferation of surveillance cameras in American life, police on-body cameras are different because of their potential to serve as a check against the abuse of power by police officers,” the paper states. “Cameras have the potential to be a win-win, helping protect the public against police misconduct, and at the same time helping protect police against false accusations of abuse.”

It wouldn’t make up for his friend’s death, but Korte says more police accountability could act as a small victory.

“It would feel good to have something constructive come out of the whole thing,” he says. ©