Everything you need to know from Day 3 of Ray Tensing's retrial

CINCINNATI – Moviegoers say the sequel is never as good as the original, but they wouldn’t say that about Grant Fredericks' video testimony in the Ray Tensing retrial Monday.

The forensic video expert's frame-by-frame presentation of the shooting of Sam DuBose, seen through Tensing’s body-camera video, was compelling in the original trial last November. Not compelling enough, though, to prevent a hung jury and a mistrial.

So Fredericks and the new prosecution team clearly fine-tuned it. The images didn’t change, obviously, but they added deeper explanation for the jury and, most significantly, a He-Said-We-See comparison to Tensing’s videotaped statement the jury saw last week.

Here are the key moments from Monday's court proceedings, day three of the retrial: 

Expert breaks down body cam video frame-by-frame 

Here’s what the presentation showed – with frames timed to milliseconds and a countdown clock that displayed the time to the fatal shot – according to Fredericks:

  • DuBose’s car didn’t drag Tensing before the shooting during that traffic stop on Rice Street July 19, 2015. Tensing’s body is clearly shown away from the car as reflected in the car door. Images show his feet flat on the pavement.
  • Tensing’s left hand and arm were never inside the steering wheel and couldn’t have been caught by it, as the former University of Cincinnati officer claimed. His left hand is holding DuBose's seat belt buckle when he fires one shot with his right hand into DuBose’s head.
  • DuBose’s car didn’t move until less than one second before the shooting – and then for only a few hundred-thousandths of a second.
  • Tensing wasn’t falling and in danger of being run over, as Tensing insisted. The camera lens never drops below the “plane of the window” – which Fredericks defines as “where the window comes out of the door." Fredericks estimated Tensing’s eyes were 13 inches above the camera lens, with the camera secured firmly next to his shirt pocket.

The main difference from the first presentation is the leading man, Fredericks, has assistant prosecutor Stacey DeGraffenreid directing him. Rather than just have Fredericks show his slides and read his lines, they focused on debunking each one of Tensing’s claims for what happened to make him fear for his life and shoot DuBose.

As testimony wrapped up for the day, they built up to a climax. DeGraffenreid quoted 10 passages from Tensing’s statement and asked Fredericks to show in the video what Tensing described. Fredericks said he couldn’t show them because they never happened and instead showed images to disprove Tensing.

Some examples:

Tensing: “My hand and my left arm - It somehow got caught or tangled up in the steering wheel as he was accelerating.”

Fredericks:  “The hand did not go behind or into the steering wheel. It went in front and then over. So there are no images that support the statement that his arm was caught anywhere and his arm is clearly free at this time.”

Tensing: ”At this point I lost my balance and I fell against the car on the left side of my body.”

Fredericks: “If Mr. Tensing had fallen in any way, the camera perspective would have dropped ... There’s no downward motion.”

Tensing: “I'm in fear for my life. At some point my hand is stuck as I'm drawing my weapon out.”

Fredericks: “His right hand was in view coming off the top of the vehicle — 1.17 seconds the gun is in view and during none of that time as the weapon is being drawn in that process is his hand stuck anywhere.”

READ the transcript of Tensing's interview.

Before Fredericks’ testimony, defense attorney Stew Mathews acknowledged for the record that Fredericks, who teaches at the FBI academy, has “an impressive resume.” Matthews will get to put his own forensic video expert on the stand later. And Matthews may be able to cast doubt on some of the science behind Fredericks’ presentantion.

Fredericks said he had to “modify” the body-camera video to “correct” the calibration of the fish-eye lens. Otherwise, he said, he wouldn't be able to present a flat camera frame, and motion may appear to be quicker than it occurred. Video and audio are recorded separately and have to be synched. There is something called “macro-block analysis,” where he has to account for what the camera copies from previous images when images don’t change significantly, Fredericks said. There is some “motion blur” that cannot be corrected.

Through it all, though, Fredericks spoke convincingly.

If you believe the science, and that seeing is believing, then Fredericks’ 70-minute testimony was spellbinding – and he’s not finished. He will continue Tuesday before Mathews has a chance to cross-examine him.

Get some popcorn.

Watch Fredericks’ testimony below:

 

Officer's testimony may help both sides

The first witness of the day, University of Cincinnati officer David Lindenschmidt, testified to what he saw and what he didn’t see. That may prove helpful to both sides, since Lindenschmidt was one of the three witnesses identified at the shooting scene.

Lindenschmidt, an officer in training at the time, said he was patrolling near UC with his field training officer, Philip Kidd, when they heard Tensing report to dispatch that he was trying to make a traffic stop, but the driver was “slow to stop.” That raised their concerns, so they drove over to back up Tensing.

Lindenschmidt said he drove the Chevy Tahoe to the corner of Thill and Rice and parked behind Tensing, straddling the two streets. He said his view was impeded by Tensing's SUV ahead of him.

Lindenschmidt said he “jumped out of the vehicle” and doesn’t recall seeing Tensing attached to DuBose’s car – “just falling,” he said.

That served the prosecution’s purpose, since they dispute Tensing’s claim that his arm was stuck in DuBose’s car as DuBose tried to pull away from the traffic stop.

When the jury watched Lindenschmidt’s body camera video, he was heard telling arriving officers that Tensing was “tangled” in the car and that DuBose was “reaching around for something” before the shooting.

But Lindenschmidt retracted those statements on the witness stand. He said he was just “reiterating what officer Tensing told me” about being tangled, and maybe imagined the “reaching around” in the moment.

To the defense’s benefit, Lindenschimdt also said he heard “squealing tires, then a shot.” That's what Kidd said last week and backs the defense’s claim that DuBose “mashed” the accelerator and only then did Tensing shoot DuBose out of fear that he would be run over.

On cross-examination, Lindenschmidt said he was sure of the sequence. “No question in my mind,” he said. He also said he saw DuBose’s car move left 45 degree. The defense claims the car moved left into Tensing, who was standing next to the driver’s door.

Though none of that showed on Lindenschmidt’s body camera video, Mathews reminded the jury the camera only stores 30 seconds prior to the officer turning it on. As for Lindenschmidt not seeing Tensing being dragged or tangled in the car, Mathews suggested it might have been a case of now you see it, now you don’t.

“Just because you didn’t see it happen doesn’t mean it didn’t happen, correct?” Mathews said.

“Correct,” Lindenschmidt said.

Lindenschmidt was supposed to testify Friday but was out of town on vacation.

Watch Lindenschmidt's testimony below: 

 

Crime scene investigator left something out

The testimony of the second witness, Jimmy Pham, a Cincinnati police crime investigator, was most notable for what he left out.

It was Pham who introduced the photo of Tensing’s black Confederate flag T-shirt in the first trial. The new judge in the retrial, Leslie Ghiz, said it was prejudicial and ruled it out.

Pham testified about some unusual findings. He said the .40-caliber shell casing from Tensing’s Sig Sauer was found on the floorboard in the backseat during the first examination of DuBose’s car, but the bullet wasn’t found until six weeks later – on the third go-through. He said they found it in the stereo under the front dash.

They also found a dozen pill bottles and marijuana hidden in three different places in the car, Pham said. 

Mathews asked if Pham did a mechanical testing on DuBose’s car and Pham said no. Mathews told Pham that DuBose’s fiancé had testified that the car had a lot of mechanical issues and DuBose had to step on the accelerator and the brake at the same time.

“At the same time?” Pham said, bewildered. “No.”

WATCH Pham’s testimony below:

 

For complete trial coverage, visit wcpo.com/TensingTrial

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