CINCINNATI -- Hamilton County Prosecutor Joe Deters is expected to announce on Tuesday morning whether he will retry Ray Tensing in the fatal shooting of Sam DuBose.
Earlier this month, a jury could not reach a unanimous verdict on the murder and voluntary manslaughter charges against the former University of Cincinnati police officer, leading Judge Megan Shanahan to declare a hung jury and a mistrial.
Deters' office has scheduled a news conference for 10 a.m. Tuesday. He has said he intended to make a decision before the next hearing in the case Nov. 28.
Since the mistrial Nov. 12, Deters has publicly blamed himself for not giving a stronger cross-examination and closing argument at trial. He said he would confer with assistant prosecutors Mark Piepmeier and Rick Gibson and only retry the case if he concluded that he could win.
Deters said he also spoke to the jurors to find out what they were thinking. Deters disclosed that the 12 jurors – two blacks and 10 whites – took a straw poll early in deliberations and agreed 12-0 that Tensing, who is white, purposefully killed DuBose, an unarmed black motorist, during a traffic stop in Mount Auburn on July 19, 2015. The shooting was caught on Tensing's body camera and viewed by millions around the world on the web and TV.
But Deters said the jurors disagreed on whether Tensing acted out of fear that his life was in danger and whether his actions were justified under law.
The jurors eventually split four for a murder conviction, four for voluntary manslaughter and four for not guilty, Deters said.
Deters has three options: bring the same charges, seek only one or other or lesser charges -- or drop the case. Under the second option, he would bring the new charge(s) to a different grand jury. If the grand jury indicted Tensing, there would be another trial. If Deters drops the case, Tensing would not serve jail time.
Deters has said he thought the prosecution proved its murder case the first time and he would not consider lesser charges.
"Absolutely not -- because he's not guilty," Mathews said on Bill Cunningham's 700 WLW Radio show last week. "Ray thinks he's not guilty, I think he's not guilty, so we're willing to take that chance."
"So (Tensing) would never take a plea deal?" Cunningham asked a few moments later.
"Well, you know how it is. You never say never in criminal defense," Mathews said. "But right now, no, not interested in discussing any type of plea deal."
Deters said the cost of a retrial, on top of the first trial, could top $1 million.
Deters, Mathews and DuBose's sister, Terina Allen, sat down with Carol Williams and Libby Cunningham for WCPO's "This Week in Cincinnati" last Sunday morning.
"I was critical of myself and what was said in closing," Deters said. "I just need to do better."
Deters said he thought the jurors might have been confused.
"The instructions are a little confusing for lay people," he sad. "But this jury -- it was a very emotional trial for many of them. When they would return to the court room, many were crying."
In a separate interview, Tensing's attorney said he expects a retrial.
"Ray is depressed. He was hoping by now this would be over one way or another," Mathews said. "I think he would prefer being cleared, but if there is no retrial he goes on with his life. I don't think that's what will happen here."
At the same time, DuBose's sister said her family's life is on pause waiting for Deters' decision.
"We're not (coping)," Allen said. "We're just kind of holding our breath, waiting to hear if there's a retrial.
"People ask us if we hate Ray Tensing," she said. "We don't hate Tensing. We want justice."
A murder conviction would carry a sentence of 15 years to life. Voluntary manslaughter is three to 11 years.
Deters said he was "disappointed" the trial ended with a hung jury -- his first in more than 30 years.
"There is a preponderance of evidence," Deters said of his case for murder. Deters said the frame-by-frame breakdown by the prosecution's star witness, a certified forensic video expert, refuted Tensing's claims that he was being dragged by DuBose's car and his arm was caught in the steering when he shot DuBose.
When Deters was asked why he thinks Tensing shot DuBose, he said, "I think he was mad."
"I think he was pissed off that this guy wasn't following orders," Deters said. "And God forbid you don't listen, because he'll take care of it."
But convictions of police officers are rare, Deters said.
"It's very difficult to get a conviction of a police officer," he acknowledged.
Deters estimated he has cleared "upward of 100 police officers" of wrongdoing in use of force cases. He said he never would have filed charges against Tensing if not for the body camera video.
"He intentionally shot him in the head," Deters said. "And that is not, in my mind, justifiable."
"There's some people out there that think no matter what a police officer does, they shouldn't be charged, which I think is nonsense," Deters said. "There's bad police officers. There's bad prosecutors. There's bad judges. That’s just the way it is."
Mathews said Tensing was being dragged by DuBose's car and shot out of fear that he would be run over.
Mathews said he doesn't think Tensing did anything wrong when he killed DuBose.
"He reacted to an unexpected threat," Mathews said. "He didn't do anything that any other person wouldn't do."
The jury deliberated more than 25 hours over four days and was sequestered for three nights at a downtown hotel.
To return a murder conviction, the 12 jurors would have had to agree that Tensing purposefully killed DuBose and Tensing was not justified in his use of deadly force. By law, it was up to the defense to prove Tensing's claims that he was bring dragged and in fear and danger of death or serious bodily harm in order to get an acquittal.
As a jury, the 12 were deadlocked somewhere in between.
While they deliberated, the jury sent several questions to the judge that suggested they were hung up over "use of force" law and the conflicting testimony from both sides over whether the shooting was justified.
When Shanahan charged the jury, she explained that, by law, murder is a purposeful killing; voluntary manslaughter is committed in rage or passion when a person thinks he or she is in danger of death or serious bodily harm.
On the third day of deliberations, the jurors asked for a "read-back" of the testimony from the "use of force" experts for both sides.
The defense's expert, James Scanlon, said his analysis of Tensing's body-camera video confirmed what Tensing told homicide investigators two days after the shooting: Tensing said his arm was trapped in DuBose's car; he was being dragged as DuBose "mashed" the accelerator and pulled way from the stop; the movement of the car violently twisted Tensing; he lost his balance and started to fall; Tensing fired in self-defense.
"I would be in fear of my life if I was in that situation," said Scanlon, a 33-year veteran of the Columbus police force and now a police trainer. "My opinion is the actions of Ray Tensing were justified, reasonable and consistent with all police tactics and training."
The prosecution's expert, Scott Haug, an Idaho police chief and police trainer, testified that Tensing "acted irresponsibly" and his use of force was "not justified."
According to Haug, DuBose was never dragged and did not pose a threat to Tensing; Tensing violated proper police procedure when he reached into DuBose's car, and Tensing overreacted to a minor traffic violation.
Mathews accused the prosecution of trying to portray Tensing as a racist. The prosecution showed a black T-shirt Tensing was wearing when he shot DuBose. The T-shirt had a small Confederate flag emblem in the center surrounded by the words, "Great Smoky Mountains." Tensing said it didn't have any meaning to him - a relative bought it for him at Gatlinburg and he was only wearing it to fulfill a requirement that UC officers wear black T-shirts during the summer.
Deters asked Tensing if he knew he had the most arrests and traffic stops of any UC officer – and that black motorists accounted for 82.5 percent of his stops. Tensing denied he is racist and said he often couldn't see who was driving the vehicles he stopped because he mostly worked at night. At the time, UC officers patrolled city streets near campus under an agreement with Cincinnati police. Mathews said the UC police chief told officers to make more stops, write more tickets and create a "no-fly" zone for criminals. Mathews said Tensing was only following orders.
But there was a moment in closing arguments when Mathews might had made a stronger, personal connection with jurors.
"Ask yourselves if I would have done anything differently to protect myself if...I was stuck in a car when it was starting to move. I suggest the evidence in this case, ladies and gentlemen, doesn't even come close to proving that Ray Tensing is guilty of murder or voluntary manslaughter," Mathews said.
Çincinnati still has scars from the 2001 shooting of Timothy Thomas, a 19-year-old unarmed black man, by white Cincinnati Police officer Stephen Roach. Three days' of rioting followed the shooting. Roach was not convicted.