Analysis: What is Joe Deters looking to do differently in Ray Tensing's second trial?

Posted at 4:54 PM, Nov 22, 2016
and last updated 2016-11-23 00:38:35-05

CINCINNATI – As far as Joe Deters was concerned, everything that could go wrong in the first Ray Tensing trial went wrong.

The prosecutor made a compelling case for a murder conviction against the former University of Cincinnati police officer -- thanks to the body camera video showing Tensing shooting Sam DuBose sitting in his car during a traffic stop. The frame-by-frame presentation by a forensic video expert -- dissected to the millisecond -- seemed to make a lie out of Tensing's defense that he was being dragged by DuBose and had reason to fear that he was in danger of being run over by DuBose's car.

But humans messed things up. Jury fears and biases, prosecutor's mistakes and misjudgments, even a judge's error and indecision let Deters' hope for a murder conviction -- no, his expectation -- slip away into a hung jury and a mistrial.

"I've never had a hung jury in my life -- ever," Deters said Tuesday in a tone that said he still couldn't believe it. "I can't even remember a not-guilty verdict."

That explains why Deters is taking the drastic, unprecedented step of seeking a change of venue to retry Tensing on murder and voluntary manslaughter charges.

RELATED: Deters wants new venue in second Tensing trial.

The announcement stunned local legal experts.

"I am blown away … shocked," said defense attorney Carl Lewis, who has provided analysis of the Tensing trial for WCPO.

"A blockbuster," Lewis called it.

But it isn't the only thing Deters is looking at doing differently for the second Tensing trial. 

It's clear that Deters wants to change what failed him in the first trial -- everything, that is, except the charges and the prosecutor.

From the outside looking in, it didn't look like Tensing's attorney, Stew Mathews, won the first trial as much as Deters lost it. Deters must have felt like Marvin Lewis watching the Bengals' playoff game over the Steelers slip away from them last January.

What just happened, he must have wondered, helpless to stop it.

WATCH the entire Deters' news conference here:

Change of venue?

It's usually the defense that asks for a change of venue, and Tensing's attorney asked to move last month's trial before it started. Judge Megan Shanahan said no.

But now that Mathews has the upper hand, he said Tuesday he will oppose Deters' request. If so, it will be up to Shanahan to decide -- probably at the next hearing on Monday. Since Shanahan is expecting a baby soon, she might also recuse herself at that time.

By asking for a change of venue, Deters seems to be conceding what many people already suspected before the first trial: You can't find 12 jurors in Hamilton County who don't have pro-police or anti-black biases and will judge this case only on the evidence presented in court.

Deters said issues of race, DuBose's criminal background and lifestyle (he had 13 kids by at least seven women) "absolutely crept into the jury room" even though Shanahan banned testimony about DuBose's criminal and health records.

Deters said the jury of 10 whites and two blacks was 10-2 in favor of voluntary manslaughter on the third night of deliberations, Friday, Nov. 11. After two hours of deliberations Saturday morning, the 24th and 25th hours over four days, Shanahan decided the jury was hopelessly deadlocked and called it off.

After saying he interviewed half of the jurors, Deters said some were sympathetic to Tensing, who teared up on the witness stand, and were considering punishment, which they shouldn't have done.

"There's no question that issues were being discussed in there that should not have been discussed," Deters said.

He said going to a new venue -- Deters suggested Columbus or Cleveland -- would improve the chance of finding jurors who haven't been exposed to the deluge of media coverage the case has received here.

Whether it could exclude any jurors with biases is another matter.

There was another surprise Deters had no control over -- what he called the jury's "revolt." He confirmed that the jury was in fear and refused to come back to the courtroom after Shanahan ordered their 25-page questionnaires released to the media during the third day of testimony Nov. 4.

"They were afraid about their identities (being released) … They were scared to death of it," Deters said.

The judge fanned the panic with her indecision. Before jury selection started, she looked at the jury pool in her courtroom and promised to protect their identities. By the end of the week, she was caving in to media lawyers.

In one day, Shanahan told the jurors that her attorney advised her to release redacted versions of the forms. That resulted in the revolt, when jurors stayed out of the courtroom for two hours. Then she added to the court file that the questionnaires would not be released, and an hour later she said they would be.

She is still holding onto them.

"We move to another jurisdiction and I don't think the jurors would care," Deters said. "I want to try this case with jurors who aren't afraid to come out of the jury room."

The prosecution's case

In an interview with WCPO that aired Sunday, Deters said he blamed himself for not giving a stronger cross-examination of Tensing and a better presentation in closing arguments.

In hindsight, Deters added Tuesday that he failed to press one very important issue -- that Tensing's side has to prove an affirmative defense. Once Tensing said he intentionally shot DuBose in the head to "stop the threat," the burden of proof was on the defense to prove that Tensing was in danger of death or serious bodily harm or he would not be legally justified in using lethal force.

"That's an argument I think we need to stress more," Deters said. "Once they argue justification, it's not our burden anymore. It's theirs. And they've got to prove, by a preponderance of the evidence, which is a weighing test, it's scales of justice, and if they don't outweigh even a little bit, they fail. And I don't know if we did a good enough job at that."

Deters personally prosecuting

Deters joked that DuBose's mother knew enough about the case that she could try it. So why does Deters still plan to do it, when assistant prosecutor Rick Gibson and Mark Piepmeier, who helped him present the case at the first trial, seemed completely capable?

When the defense's "use of force expert," a 33-year police officer, took the stand, he expressed contempt for Deters and some of the comments the prosecutor made after the shooting -- saying it was a "chicken-crap stop" and "asinine" and calling it "murder."

Maybe some of the bias jurors showed was anti-Deters bias.

That might not be a factor if the retrial is moved to Columbus or Cleveland. At the news conference, nobody pressed Deters as to why he wouldn't take himself off the case. Or put himself on the sideline to coach.

RELATED: DuBose family not in favor of change of venue

But Deters clearly takes this case personally and he vowed again to do better.

"As I've said 100 times, in the country that I love, you don't get shot in the head for getting pulled over on a traffic stop. That's what happened here, and it troubles me deeply that this happened," he said.

Deters said pressure from DuBose's family, city council, ministers, demonstrators and Black Lives Matter Cincinnati had no influence in his decision to retry Tensing. He said he did what he had promised to do -- meet with his assistant prosecutors, talk to jurors and analyze the "likelihood of success at trial."

"After talking to the jurors I came to the conclusion we could win," he said.

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