Prosecutor Joe Deters to decide whether he'll retry Ray Tensing murder trial

Judge ordered mistrial

EDITOR'S NOTE: Originally, Prosecutor Joe Deters provided incorrect information on how many jurors wanted each potential verdict. The story has been corrected to state that four jurors wanted murder, four voluntary manslaughter and four not guilty. 

CINCINNATI -- After a judge ordered a mistrial in the Ray Tensing murder trial Saturday, it will be up to Prosecutor Joe Deters to decide whether or not he wants to retry the case.

Deters said he was disappointed by the mistrial, but noted it's still a better result than a "not guilty" verdict for him and others who believe Tensing was wrong when he fatally shot Sam DuBose during a traffic stop last year. 

"I am grateful for what the jury did in terms of the time and energy," Deters said. "I am very disappointed because I think we have put on an incredible case which demonstrated murder."

 

Tensing faced two charges in DuBose's death: murder and a lesser charge of voluntary manslaughter.

"He intentionally shot him in the head," Deters said. "And that is not, in my mind, justifiable."

Deters has two other options: he could seek only the lesser charge -- or new charges -- or he could drop the case.

Should Deters choose the first option, he would bring the new charge(s) to a different grand jury. If the grand jury indicts Tensing, he would be on trial again. If Deters drops the case, Tensing would not serve jail time.

Deters has repeatedly said he believes the evidence shows that Tensing is guilty. Whether or not he will retry the case depends on whether he thinks another jury would convict Tensing on one of the charges. He said he would keep the same charges, which were the charges returned by the grand jury.

"If I think we can win, we'll retry the case," Deters said.

Convictions of police officers are relatively rare. Deters estimated he has cleared "upwards of 100 police officers" of wrongdoing in use of force cases. He said he filed charges against Tensing because of the police body camera footage that shows the shooting.

"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."

It's not a decision for Deters to make lightly. He estimated that, if the charges do go back to court, the cost of the case would exceed $1 million. And going back to trial would be exhausting for DuBose's family and prosecutors.

"It's very difficult to get a conviction of a police officer," Deters said.

Still, four of the jurors said they believed Tensing was guilty of murder, four thought he was not guilty and four said they believed he was guilty of manslaughter, according to Deters.

Nov. 16 Update: Deters office now says four jurors - not eight - thought Tensing was guilty of voluntary manslaughter.

Deters said he aims to reach a decision by Nov. 28. But what will he decide?

Legal analyst Rodney Harris said he expects there will be another trial.

"(Deters) still believes they proved murder, and I would agree with him," Harris said. "So I don't see any reason not to retry."

Harris said he believed the jury struggled over whether or not Tensing was justified with his use of force because he was a police officer.

"With the evidence that was presented, I think typically a jury would find that to be murder," he said. "I think it's hard to back away from 'This is a person that UC had hired to do their duty' and so forth and so on, and I think people put some value in that."

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