CINCINNATI -- Jury selection for the retrial of ex-University of Cincinnati police officer Ray Tensing begins Thursday.
In July 2015, Tensing shot and killed Sam DuBose -- an unarmed, black motorist -- on Rice Street in Mount Auburn. Tensing pulled DuBose over for a missing front license plate; the shooting happened off campus.
Hamilton County Prosecutor Joe Deters sought indictments for murder and voluntary manslaughter. Tensing's body camera footage of the shooting was enough evidence for a grand jury to indict Tensing -- but not enough for a conviction.
Deters asked for something unprecedented in Hamilton County when he decided to retry Tensing -- he made a motion to move the trial.
The judge said she would wait to decide on changing the venue until the court attempts to seat an impartial jury.
"No question in my mind, issues were being discussed in the jury room that shouldn't have been discussed," Deters said.
Deters said the jury's fear of being identified was a factor that worked against his case.
"We had a revolt in the jury room," he said. "The jurors were afraid people would learn their names."
Tensing's attorney, Stew Mathews, filed for a change of venue at the start of the first trial, but his motion was not granted. Now, he said he doesn't want a change of venue; Deters pointed out that "it's not (Mathews') decision."
Deters said a trial has never been moved out of Hamilton County; he suggested Columbus and Cleveland.
Deters no longer on case
In January, Deters announced he was stepping down from the Tensing retrial.
Deters said the Tensing retrial coincided with the re-sentencing of convicted serial killer Anthony Kirkland. Both were set for May. Under those circumstances, Deters said it would be difficult for him to prepare for both cases, so he turned over the Tensing case to assistant prosecutors Stacey DeGraffenreid and Seth Tieger.
Three weeks ago, the Kirkland resentencing was postponed to Aug. 21.
Judge Leslie Ghiz, fourth judge randomly selected, will hear the case
Judge Shanahan “disqualified” herself from the retrial; she was nine months pregnant by the conclusion of the first trial.
Next, Judge Thomas Heekin was selected at random to hear the case. However, Heekin served as guardian ad litem for one of DuBose's children's during a civil case against the University of Cincinnati. For that reason, he recused himself.
Next, Judge Beth Myers was selected at random. Myers made a move to appeals court in January, so she knew in advance she wouldn’t be in a position to hear the Tensing retrial.
The Tensing retrial will be the highest profile case in Ghiz's four years on the bench.
Ghiz served three terms on city council starting in 2005, but lost her seat in a 2011 purge by young Democrats. She was elected to the bench in 2012 and took over in 2013.
Ghiz issued a gag order shortly after she got the case
Ghiz signed an order barring the defense and prosecution teams from talking about the case with media. Because of this, we haven’t heard much about the pre-trial proceedings.
"In light of the unprecedented and extensive media coverage in the...case, this protective order is intended to prevent media coverage of statements that might unfairly influence the potential jury pool and the outcome of the case," her order states.
WCPO and other local news organizations are suing Ghiz for courtroom access
During the first trial, local news organizations and the Associated Press sued the court for access to jurors' completed questionnaires. Shanahan released redacted questionnaires, but not without some uproar; one juror was dismissed after concerns of being identified by the questionnaire.
Now, WCPO is suing because terms require camera operators to sign an “application” allowing the judge’s ultimate discretion to stop recording, filming or photography of a witness if that witness objects, if a juror is present, or if the judge otherwise sees fit.
In the last trial, jurors weren’t shown in photographs or on the trial's live video feed.
Additionally, the court used the news cameras' video stream for overflow seating; seating was limited in the courtroom, which upset family members and friends of the victim and the accused.
In this most recent lawsuit, WCPO argues that the station should be able to film and show what is deemed public and open by law, which can be done without revealing the identities of jurors.
Like last time, jurors will fill out questionnaires
On Thursday, 250 or so "vetted" potential jurors will fill out questionnaires in Ghiz's court. The following day, jurors will return in groups of 50 for jury voir dire, or preliminary questioning to eliminate prospective jurors based on possible bias.
In the last trial's voir dire, jurors were asked about Black Lives Matter, police, racial bias, and the criminal justice system. The questionnaires indicated that the 12 selected jurors and four alternates included six moderates, four liberals, two conservatives, one very conservative and three others. (The 12-member jury consisted of two black women, four white women and six white men. All four alternates were white women).
During the two hours he was on the stand, Tensing never apologized and never expressed regret for killing DuBose. He repeated that he “feared for (his) life” and “stopped the threat...like (he) was trained to do.”
Tensing insisted he was being dragged by DuBose's car, with his left hand stuck inside, as the car accelerated. Only then did he pull his gun and shoot DuBose in the head, Tensing said.
He stuck to that story even after Deters replayed part of the prosecutor's expert video analysis – a frame-by-frame breakdown of the video from Tensing's own body camera.
But he qualified his account by saying it was "my perception" of what happened.
DuBose’s family said Tensing’s testimony was “Oscar-worthy."
“We were at the Oscars just now. We was watching an actor on the stand right now,” DaShonda Reid, DuBose’s fiance, said. “Imitating tears — tears that we’ve been crying over a year as a family — very passionate tears. Tears because we lost someone. He put on tears and put on an act for a jury — only a jury.”
Tensing’s defense team hasn’t said if he’ll testify again, but he isn’t required to.
Backup officers didn't corroborate Tensing's story
At the shooting scene, responding officer Phil Kidd and officer-in-training David Lindenschmidt back up Tensing's account of the shooting -- Kidd agreeing that Tensing was dragged and Lindenschmidt telling a sergeant that Tensing was stuck in DuBose's vehicle.
Below is a portion of the transcript from Kidd's body camera footage:
Tensing: "I'm OK. He was just dragging me."
Kidd: "Yeah, I saw that."
Later, a UC police supervisor arrives and Kidd tells him: "Lindenschmidt and I saw it."
"Did you see him being dragged?" the supervisor asks.
"Yes," Kidd answers.
Then, Cincinnati Police Sgt. Daniel Carder arrives.
He asks Tensing and Kidd, "who all was up here when ..."
"They were," Tensing says, nodding to Kidd nearby and to Lindenschmidt, who was walking up the street toward them.
"I saw it," Kidd says. "I think my trainee saw it as well."
Later, Lindenschmidt speaks to Carder. "This is where he actually fired from - right here," Lindenschmidt tells Carder. "I was [parked] right behind him. He fired from right here and the guy took off."
Carder: "Did he try to make a traffic stop?"
Carder: "Is it on video?"
Lindenschmidt: "He (Tensing) probably does. I just arrived to back him up when the guy took off. The officer was stuck in the vehicle. Fired one round."
"I heard tires squealing. I saw the vehicle move. Officer Tensing was moving with the vehicle," Kidd testified in the first trial. "I heard a gunshot, and the vehicle was pulling away from the curb. I saw Officer Tensing fall away from the car.
"I didn't see his legs. I just don't recall seeing his legs," Kidd said.
In redirect, Kidd told assistant prosecutor Rick Gibson, "I didn't actually see him dragged. I saw him moving and the car moving."
Kidd also said he did not see Tensing "attached" to the car.
In court, Lindenschmidt said Tensing violated procedure when he reached into DuBose's car and tried to pull the keys out of the ignition. Kidd said he saw Tensing "lunge" into the car. But Kidd also said he has done that, too.
Robin Engel, Vice President for Safety and Reform, said three independent investigating agencies determined Kidd and Lindenschmidt did not change their statements, engage in criminal behavior or violate UCPD policy.
Coroner said DuBose was shot from above, disputing Tensing's claims
Dr. Karen Looman, the chief deputy coroner, disputed the defense's claim that Tensing fired as he was falling and being dragged by DuBose's car.
Looman said the bullet went through DuBose's head downward – not upward. She said it entered just above DuBose's left ear and exited behind his right ear.
"Downward and left to right," she said.
Loomis estimated that she had performed about 2,500 autopsies.
We watched Tensing's initial interview with detectives
The first trial was the first time video of Tensing's interview with detectives was released to the public.
In the video, he admitted to shooting DuBose in the head, which Deters painted as a confession to purposefully murdering him.
We watched body camera footage of the shooting with "expert" witnesses from both sides
The body camera footage was Deters’ smoking gun, and he spent much of the first trial breaking down the footage and calling on experts to analyze Tensing’s movements, explained by physics and body camera mechanics.
Forensic video analyst Grant Fredericks then delivered a 45-minute analysis of the three seconds before, during and after Tensing shot DuBose.
Fredericks testified that the body camera video - broken down frame by frame to the millisecond - indicated DuBose had not been moving to "speed away" from a traffic stop when Tensing shot him. Deters referred back to Fredericks' testimony while cross-examining Tensing, saying the expert's testimony debunked Tensing's own account.
The defense had its own expert on the stand: James Scanlon, a 33-year Columbus police veteran who said he volunteered to serve free as the defense's expert witness.
Scanlon said he reviewed the video and concluded Tensing's shooting of DuBose was justified and within police policies and procedures, but Scanlon acknowledged that he's a training officer, not a video analyst. Under cross examination, Scanlon couldn't counter the facts demonstrated by the prosecutor's expert witness and his frame-by-frame analysis.
Assistant Prosecutor Rick Gibson dismissed Scanlon as a "lay person just like anyone on the jury."
Will possible racial bias be brought up in the retrial?
Deters and Mathews said they wanted race out of the initial trial. That is, until Tensing's cross-examination, when Deters introduced new data meant to portray Tensing as prejudiced.
Deters asked Tensing if he knew "he led the department in arrests and tickets" and had the "highest racial disparity" in tickets, according to an independent examination of the University of Cincinnati Police Department after the shooting.
Tensing issued 83.5 percent of his tickets to minority drivers, Deters said. Tensing said he usually worked at night and often couldn't see who was in the car when he stopped it.
A contentious T-shirt bearing the Confederate flag also came up during cross-examination. The shirt -- worn under Tensing's uniform the day of the shooting -- was shown during evidence examination. Deters asked Tensing why he wore that shirt and if he understood the implications of the flag; Tensing said it didn't mean anything to him and it was a gift.
In total, he had a jar with marijuana in a cellphone box behind the driver's seat; an orange Nike bag under the passenger's seat with two bags of marijuana; a bag of marijuana in his center console; and two bags of marijuana in his pockets.
A gin bottle filled with perfume, known as "smell good" was also under DuBose's seat in the car.
The defense made a motion to include medical records, but it was not granted
Marijuana was in DuBose's system when he was killed, but the coroner’s office testified there is not enough knowledge to doubtfully analyze these results to determine if someone was under the influence of drugs and their level of intoxication.
"There is no scientific ability to determine when Samuel DuBose last ingested marijuana, and it would be inappropriate to allow that evidence," Shanahan said. "It's a leap to say that his medical condition affected his behavior at the scene when he was stopped by the defendant."
The "medical condition" mentioned by Shanahan was never explained in open court.
Regarding DuBose's criminal record, Shanahan said "the rules are clear when prior records come in. Even with an extensive record, it's clear that the probative value is substantially outweighed by the danger of unfair prejudice and, frankly, has no place in this trial."
According to court records, DuBose had been pulled over nearly 60 times for various traffic violations and other offenses including driving on a suspended license.
City, law enforcement prepared for massive protests — even riots — but only peaceful protests ensued
Fearful of outcry in other American cities facing similar trials, city officials and law enforcement took some precautions in anticipation of riots.
The mistrial announcement sparked reaction from DuBose’s family as well as members of the community; thousands took to the streets Downtown Saturday afternoon to protest the decision.
Protests weren't stifled, and they remained peaceful. City Manager Harry Black said the public needs to be able to express their emotions.
Tensing is the fourth police officer in Cincinnati’s history to be indicted for a fatal shooting
Tensing isn't the first police officer to be charged after a fatal shooting in Cincinnati -- but he certainly has the most aggressive and serious charges.
Stephen Roach shot and killed 19-year-old Timothy Thomas during a foot chase through a dark alley in Over-the-Rhine on April 7, 2001. The shooting led to three nights of rioting in the city.
Roach was charged with two misdemeanors -- negligent homicide and obstruction of official business. Roach opted for a bench trial instead of a jury trial, and Judge Ralph E. Winkler found Roach not guilty on Sept. 26, 2001.
Roger Owensby Jr., 29, died after a struggle with officers Blaine Jorg and Patrick Caton at a Roselawn gas station on Nov. 7, 2000.
Although there was no warrant for his arrest, Owensby Jr. was stopped for questioning outside a convenience store and initially cooperated with officers.
Police said Owensby tried to run and was tackled by officers. He was struck several times, forced to the ground and placed in handcuffs. He died in the back of a patrol car. The coroner determined Owensby died of asphyxiation.
Two months after the killing, on Jan. 3, 2001, a grand jury indicted Jorg and Caton.
Jorg was acquitted of misdemeanor assault, but a mistrial was called on an involuntary manslaughter charge. Jorg was never retried.
Canton was acquitted of an assault charge. He was fired from his job, but won an arbitration case; he got his job back and about $200,000 in back pay.