Everything you need to know from Day 4 of Ray Tensing's retrial

CINCINNATI -- Much of Tuesday's testimony in the murder retrial of Ray Tensing was dedicated to 0.9 seconds of body camera footage. Tensing's defense attorney accused the expert witnesses retained by the prosecution of unfairly playing "Monday Morning Quarterback" while analyzing the video.

Here are some key moments from the Tensing retrial Tuesday:

'20/20 hindsight'

Stew Mathews began cross-examination of expert witness and forensic video analyst Grant Frederick by alluding to a Tom Hanks movie.

Mathews asked Frederick if he knew of the movie “Sully,” and if he could define “20/20 hindsight."

“(20/20 hindsight) is when you look back at something that occurred to analyze it and see if someone did something wrong,” Mathews said. “The U.S. Supreme Court said you can’t use 20/20 hindsight to analyze a situation like this, isn’t that correct?"

Mathews asked Frederick if he was playing “Monday Morning Quarterback” for the prosecution.

“No, this is real information,” Frederick said. “It’s not conjecture, like ‘I should have done this.’"

WATCH Fredericks' testimony below

 

Mathews argued the same idea when cross-examining the prosecution’s use-of-force expert, Scot Haug, and police chief and instructor Scott Hughes.

Mathews asked the two witnesses — both police officers themselves — if they definitively knew “what Ray Tensing was feeling” when he shot DuBose; both said no.

A crucial 0.9 seconds

As previously mentioned, analysis over the fraction of a second — when DuBose’s vehicle first moves until the shot is fired — lasted more than an hour in total.

Fredericks and Haug were both asked to break down the sights and sounds from the video, mainly to determine if Tensing was dragged or caught behind the steering wheel.

Fredericks, a professional forensic video analyst, devoted nearly all of Tuesday’s prosecution testimony to analysis to this 0.9 second.

Mathews challenged Fredericks’ analysis of many of the frames, asking if Tensing’s camera may have moved and if an item shown was really a watch or a gun. Mathews also leaned heavily on Fredericks’ testimony that DuBose’s car began moving 0.9 seconds before Tensing fired the shot.

In this case, DuBose’s car moving — as Tensing said, “mashing the accelerator” — and Tensing firing the fatal shot have always produced a chicken-and-egg conundrum.

Fredericks began his testimony Monday and spent much of it refuting Tensing's direct accounts of the shooting and moments leading up to it.

RAW VIDEO: See Tensing's body camera footage

Haug, a use-of-force expert, gave his opinion on the 0.9 seconds when asked, to which Mathews objected, saying “all we are doing here is rehashing Grant Fredericks.”

WATCH Haug's testimony below

 

Haug said he agreed with Fredericks, saying the car appeared to begin moving less than a second before DuBose was shot.

However, Haug said 0.9 seconds wouldn't have allowed Tensing time to react to seeing a car move and shooting DuBose. Thus, Haug said, Tensing decided to shoot DuBose before he knew the car was in motion.

Reprimanding the reach

Haug and Hughes scolded Tensing’s decision to reach into DuBose’s car; Tensing said he reached into the car in an attempt to take the keys out of the ignition.

Image from the body cam video

Haug said officers are taught to never reach into a car. Deadly incidents are used as an example -- like Kevin Crayon, a Cincinnati Police Officer who was dragged by a car when he reached in to take a key out of the ignition.

Hughes taught Tensing in a 2014 course about traffic stops called “stops and approaches.” 

Hughes showed a slide from a presentation that read “NEVER NEVER NEVER NEVER…reach into vehicles!”

WATCH Hughes' testimony below

 

Mathews found a copy of what Hughes identified as “older curriculum” which said officers should never reach into a vehicle with their dominant hand. Mathews said that insinuates that officers could reach into a car with their other hand; Hughes said that is not the case.

“But there are no absolutes in law enforcement,” Mathews said. “And police officers often act instinctively, do you agree?”

Hughes said “yes.”

Haug offered some options Tensing could have used to resolve and detain DuBose without shooting him; Tensing could have asked DuBose for a name, an address or a date of birth instead.

“(Tensing) could have stepped back and deescalated the situation,” Haug said. “He could have handled it very differently."

Was DuBose a fleeing felon?

Hughes spent a small amount of time explaining the “fleeing felon” rule: An officer may use only non-lethal force to subdue a fleeing criminal unless he or she "poses a significant threat of death or serious physical injury,” as ruled in Tennessee v. Garner.

However, Mathews said DuBose wasn’t a fleeing felon, at least not in Tensing’s eyes.

“Tensing didn’t have a chance…to find the dope,” Mathews said. Tensing didn’t know who DuBose was, let alone if he was guilty of a crime, his attorney argued.

Tensing shot DuBose not to stop a felon, Mathews said, but because he feared for his life.

For complete trial coverage, visit wcpo.com/TensingTrial.

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