CINCINNATI -- Judge Leslie Ghiz denied the prosecution's motion to include a lesser charge against Ray Tensing, saying the evidence "did not warrant a charge...of reckless homicide."
Assistant Prosecutor Seth Tieger dropped a bombshell in court Thursday morning when he requested a lesser charge of reckless homicide be added to the indictment against Tensing, an ex-University of Cincinnati police officer.
"As the court knows, this is the second trial we've been through," Tieger said. "The first jury was unable to reach a verdict. To prevent a miscarriage of justice, where there would be a second hung jury, the state feels it's important to give the lesser offense of reckless homicide."
Stew Mathews, Tensing's attorney, criticized the prosecution for not changing the charges sooner.
"The state had every opportunity to include reckless homicide," Mathews said. "The state had every opportunity to return a new indictment, including a count for reckless homicide."
Ghiz said she was given a heads up by attorneys that a lesser charge could be requested.
Ghiz cited case law and said the court couldn't change the charge "if the evidence shows something contrary." Specifically, Tensing's intention to shoot DuBose and the justification defense would not apply to reckless homicide, which requires "indifference," Ghiz said.
"Essentially, what the state asks me to do is to give the jury an option," Ghiz said. "I don't see it, based on a case such as this."
Ghiz said the possibility of a lesser charge could be "revisited" after the defense presents its case.
In Ohio, reckless homicide carries a prison sentence of one to five years.
Tensing is currently charged with murder and voluntary manslaughter. He shot and killed Sam DuBose, a motorist, during a traffic stop in July 2015.
This is Tensing's second trial on the indictment; his November 2016 trial ended with a hung jury.
In an interview before the retrial's start, Hamilton County Prosecutor Joe Deters said he predicted Ghiz would add a lesser charge for the jury's consideration in the retrial.
"The judge can do that (include lesser charges)," Deters said. "She can do it right before the jury (deliberates). She can add lesser included offenses. And I believe she will."
Deters, who was adamant about charging Tensing with murder, removed himself from the retrial shortly after he decided to retry Tensing on the same two-count indictment.
Deters also filed a motion for a change of venue when he announced he would retry Tensing; the motion was dismissed, as was a later motion from Tensing's defense.
Tieger and Chief Assistant Prosecutor Stacey DeGraffenreid are now prosecuting the retrial.
Tensing's retrial is on its sixth day; the prosecution rested on day five of the trial. Tensing's defense team will have floor Thursday.
For complete trial coverage, visit wcpo.com/TensingTrial.