CINCINNATI - Judge Megan Shanahan isn't going to let the jurors in the Ray Tensing trial off easy - even after they told her they couldn't reach a unanimous verdict on either charge in the fatal shooting of Sam DuBose.
The judge had two opportunities to declare a hung jury Friday and passed on both. The first came before noon when the jury informed her they were deadlocked after 16 hours of deliberations. She ordered them to keep trying.
The second happened six hours later. The jury still hadn't reached a verdict, but Shanahan didn't throw in the towel. She sequestered them for the third night in a row and told them to resume at 8 a.m. Saturday.
"It is desirable that this case be decided,” Shanahan told the jury in her courtroom at noon. “You were selected in the same manner and from the same source as any future jury would be. It is your duty to decide the case if you can conscientiously do so.
“You should listen to one another’s opinions with the disposition to be persuaded. Do not hesitate to reexamine your views and change your position if you are convinced it is erroneous. If there is disagreement, all jurors should reexamine their positions, given that a unanimous verdict has not been reached."
Shanahan may declare a hung jury soon if it can't reach a unanimous verdict on one of the charges - murder or voluntary manslaughter - or if it doesn't vote to acquit Tensing. Then the case would be retried with a new jury.
Prosecutor Joe Deters could drop the charges. Not likely.
Or Shanahan could dismiss the charges.
Local defense attorney Carl Lewis told WCPO he would motion for dismissal if he were DuBose's counsel.
The jury appears to be "hopelessly deadlocked," Lewis said.
WATCH local defense attorney Carl Lewis analyze the latest developments:
Here's what Lewis said he would tell the judge:
"Your Honor, we move for immediate dismissal. We object to the court giving another charge to the jury. They can not, even after being given additional time .. they've been sequestered, they've stayed in a hotel overnight .. Listen, Judge, it's over ...You're forcing them to go back. You're violating my client's rights."
"On a case of this magnitude, I would be shocked if they came back with a verdict," Lewis said. "I think they're hung."
What's the jury's hangup?
Judging from the jurors' request for a "read-back" on the "use of force" testimony, they don't agree on whether the shooting was justified or not.
DuBose's fiancee criticized that - and the defense expert.
“You have one that’s an actual expert, and you have one who’s an idiot from Columbus who just wanted to throw himself into the case," Reid said. "So again, you have to look at the facts… the evidence to me, from what I’ve heard, is so overwhelming that this shouldn’t be a process that’s taken more than three days at this point.”
It was another painful day for DuBose's family. And to make matters worse, attorney Al Gerhardstein told WCPO that the family never got a call to tell them Shanahan's noon announcement was coming, so they were not in the courtroom to get the news first-hand.
One of DuBose's daughters, Teala Williamston, was too upset to talk to WCPO. Tensing's family has remained silent throughout the trial. Counsel is under a gag order from Shanahan.
Rodney Harris, an attorney with the public defender's office, said he thought jurors had agreed on one thing.
"It makes me think they've already decided whether it was purposeful murder, they're just trying to figure out if it was justified," Harris told WCPO's Chris Riva.
As WCPO's Tom McKee pointed out, most juries give leeway to the officer in such cases. That's why in the few cases officers even face charges, they are rarely convicted.
When Shanahan charged the jury, she explained that 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. Murder carries a sentence of 15 years to life; voluntary manslaughter is three to 11 years.
Tensing, 26, a former University of Cincinnati officer, shot and killed DuBose, 43, during a traffic stop in 2015. The shooting of an unarmed black motorist by a white officer was caught on shocking body camera video. Millions around the world have viewed it on the web and TV.
Harris said he thought the prosecution's "use of force" expert was more credible, but he also said you never know with juries.
"You don't know who they'll find to be credible," Harris said. "Just overall, I thought that the state's expert was really strong. I thought the one thing they really picked on the defense expert is he's never testified for the other side," meaning only for the police and never against it.
Harris said he believes the state proved murder in its case, but he also understands why the jury wants to consider self-defense.
"When you talk about a person who's actually pointed a gun at someone's head, fired, and then when they're interviewed they say that's exactly what I intended to do - 'I was looking to stop the threat,' [that] is essentially purposeful murder in my eyes," Harris said. "The only question for me … you do have allegations of a car moving. it's up to the jury whether they believe it or not. A car can be used as a weapon. There are no 'ands, ifs or buts' about that."
Tensing claimed that he feared for his life when he was being dragged by DuBose's car. But even if that were so, that alone wouldn't make the shooting justifiable.
It's the defense's responsibility to prove self-defense, Harris noted.
"So with that, I can see why they're fighting and arguing over whether they've proved that affirmative defense … I would guess that's where the argument is at this point," Harris said.
Each sides' witnesses testified that they drew different conclusions from Tensing's body camera video and each side's attorneys claimed the video supported its case. There is no dispute that Tensing shot DuBose. The dispute is over whether he had justifiable cause.
WATCH the body camera video here:
To determine that, the jury has to decide if Tensing's action met the standards for the use of deadly force, according to defense attorney Stew Mathews. By law, that comes down to a test of reasonableness in Tensing's actions, Mathews said in closing arguments. He said the jury must ask: What would a reasonable officer have done in this situation and at that moment?
Mathews said the four tests of reasonableness are:
The severity of the crime the officer was addressing;
Whether DuBose posed an immediate threat to Tensing or others;
Whether DuBose was actively resisting or attempting to evade arrest by flight;
Whether Tensing played a role in creating the dangerous situation.
The defense's use of force 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 minor traffic violation.
In addition, Haug pointed out that Tensing had other options to end the confrontation peacefully. Instead of endlessly pressing DuBose for his driver's license, he could have done what DuBose suggested - go back to his police car and run his Social Security number. Tensing testified he didn't do that because DuBose would have driven off.
"There are several things he could have done. One was to take a step back and ask the officers who had just arrived to pursue him," Haug said.
Besides the "use of force" testimony, the prosecution said its video analysis, broken down frame-by-frame to milliseconds by a true video forensic expert, refutes all of Tensing's claims.
The expert, Grant Fredericks, said his presentation showed that Tensing wasn't dragged, his arm wasn't stuck in the steering wheel and he wasn't falling when he shot DuBose. Fredericks showed in detail that the car didn't move until a split second before the shot, and then it only moved slowly 1 or 2 feet.
WATCH Fredericks' presentation here:
The jury is not supposed to consider closing arguments as evidence, but since those are the last things they heard, their ears might be ringing from Mathews' plea to put themselves in Tensing's shoes.
"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.
Six days of testimony were completed Tuesday. Closing arguments were made Wednesday morning, and the jury started deliberating that afternoon.