CINCINNATI - Prosecutor Joe Deters said he will not put a white former University of Cincinnati police officer on trial for a third time in the killing of a black motorist, but that doesn’t mean Ray Tensing is off the hook yet.
The U.S. Attorney's office in the Southern District of Ohio asked to review the case for potential civil rights violations, Deters said at a Tuesday afternoon news conference. Deters said his office met with them and turned over its case files.
"I think there's a much greater likelihood of success for the federal people than for us based on the evidentiary rules that we got," Deters said.
Deters said the feds will be able to enter evidence of "racial prejudice" by Tensing that Judge Leslie Ghiz banned for the second trial.
Tensing's attorney, Stew Mathews, said the former University of Cincinnati police officer "is relieved that apparently the state portion of this thing is over with, but he's very concerned that it's been referred to the Department of Justice.
"I personally don't believe that there's any bit of evidence that would substantiate a civil rights violation charge," Mathews said.
Ghiz banned the Confederate flag T-shirt that Tensing wore under his uniform when he shot Sam DuBose that early Sunday evening in Mount Auburn. Ghiz also barred data from UC police that showed Tensing issued 83.5 percent of his tickets to minority drivers. Deters complained that evidence of Tensing's prior good acts was allowed in the second trial, but prior bad acts were not.
Before dropping the case, Deters said he heard in discussions with both black and white jurors from the first two Tensing trials that he could "never" get a conviction. Tensing shot and killed Sam DuBose during a traffic stop in Mount Auburn on July 19, 2015 - one day short of two years ago Tuesday.
Deters said he thought his prosecutors made a strong case on the murder and voluntary manslaughter charges but they could not break though biases -- racial and pro-police -- among the jurors.
"The division in this country is profound ... " Deters said. "This goes both ways hard. In this case we had jurors who would not vote to convict a police officer.
"I think it's true that there are two visions of what's going on in the country," he said. "It's heartbreaking."
There were 10 white jurors and two black jurors in the first Tensing trial. The second trial had nine white jurors and three black jurors.
"Now after two trials and probably $1 million, the best lawyers I could come up with were unsuccessful ... I have come to a conclusion that we can not win a conviction in this case on these facts," Deters said.
"I have an ethical duty - if we believe we can not be successful at trial, we have that duty not to proceed."
Deters said the reaction of DuBose family' members was "horrible" when he told them of his decision before announcing it at a 1 p.m. news conference.
"It would be the reaction I would have if it was my brother," Deters said.
"I have to tell you, this has been the most difficult decision in my career because I truly believe in this case. I think since 2008 we've cleared 51 police officers. This is the first one we ever charged as a crime for a shooting like this, and it rips my heart out" for the DuBose family.
"But I've got to do what I swore to do," Deters said.
The U.S. Attorney for Southwest Ohio, Benjamin Glassman, released this statement:
"In light of today’s announcement that the Hamilton County Prosecutor’s Office will not pursue a second retrial of Ray Tensing, my office will now undertake to acquire and review the evidence from the state court trials in order to assess whether there are possible federal civil rights offenses warranting investigation and potential prosecution."
The Justice Department has investigated several police shootings in recent years, including the deaths of Michael Brown in Ferguson, Missouri; John Caldwell III in a Walmart in Beavercreek, Ohio; Alton Sterling in Baton Rouge, Louisiana, and Walter Scott in North Charleston, S.C. Those killings led to protests around the nation.
The feds have to meet a higher standard of proof than in a state court and they did not file charges after investigating the first three cases, but they got a guilty plea in the fourth case. After a hung jury, the DOJ took over the Walter Scott shooting case and got officer Michael Slager to take a plea deal that could send him to prison for 25 years. Slager shot Scott, 50, in the back five times as he ran away from a traffic stop for a broken tail light. Slager was charged with murder, but 11 white jurors and one black juror couldn’t reach a verdict.
To prove a Fourth Amendment violation, the government would have to disprove Tensing’s claim that he had reason to believe his life was in danger and show he acted willfully to kill DuBose, or that Tensing knew his actions were unreasonable and took them anyway.
“This is one of the highest standards of intent imposed by law,” Glassman’s office said this month in announcing it would not pursue federal charges in the Caldwell case. “Mistake, misperception, negligence, necessity, or poor judgment are not sufficient to establish a federal criminal civil rights violation."
Mathews had told WCPO Monday that he expected the Justice Department to enter the case.
The DOJ action might take a while, Deters warned. A decision not to press charges in the Caldwell case came nearly three years after the shooting on Aug. 5, 2014.
Deters called criticism that he overcharged Tensing "absolutely idiotic."
Deters said the indictment for murder included all lesser charges such as reckless homicide or negligent homicide - on which a jury might be more willing to convict a police officer. Assistant prosecutor Seth Tieger asked Ghiz during the second trial to charge the jury to consider reckless homicide, but the judge refused, saying the evidence did not match a reckless homicide charge.
"Raymond Tensing said, 'I intentionally shot him in the head.' That's not reckless. That's purposeful. That is murder - unless it's justified," Deters said Tuesday. "And the only issue in this case was whether or not the actions of Raymond Tensing were justified. The juries were split in both trials."
Asked if thought the justice system is broken, Deters replied: "It's imperfect. It's the best system in the world, but it's imperfect.
"There's outrage about verdicts all the time - the O.J. Simpson case, this case. Back in the 1800s we had a jury verdict that caused the Courthouse to be burned down. This is not a new thing. It's the system we have."
Deters had promised to “do what I think is right” before ultimately announcing Tuesday afternoon that he would not retry Tensing for shooting DuBose after Tensing stopped him for a missing front license plate.
Deters had said he would consider “the likelihood of success at trial” and “weigh the jury count” in arriving at his decision. Given that two previous trials ended in hung juries and mistrials – and that the second jury came closer to acquitting Tensing than convicting him, according to the defense – the prosecutor might have faced an even greater challenge a third time.
After the second trial, Mathews said eight of the 12 jurors had voted to acquit Tensing of murder and seven of the 12 had voted to acquit him of voluntary manslaughter. That’s not exactly how the foreperson described it in a note telling Ghiz they were deadlocked.
The jury note said it was "almost evenly split regarding our vote toward the final verdict," Ghiz read in court.
Either way, though, that represented a sea change from the first trial and left a big divide for potential third-trial prosecutors to overcome. After the first trial last November, Deters said that jury had four votes for murder, four for voluntary manslaughter and four for acquittal.
In the end, Deters also knew something we don’t know - the second jury’s two questions to Ghiz during deliberations. Ghiz sealed those questions so only she, the prosecution, the defense and the court reporter know what they might have indicated about the jurors’ persuasion at the time.
Tensing’s body camera video of the traffic stop and the shooting was the focus of both trials. Both sides used expert video analysts to make their case.
Tensing said his arm was caught inside DuBose’s car after he reached in to try to take the keys out of the ignition. He said DuBose “mashed” the accelerator to drive away from the stop and the car started to drag him. Tensing said he was falling and he feared that he could die if he was run over by DuBose’s car. So, Tensing said, he aimed at the only target he could see through the driver’s window – DuBose’s head - and fired one shot.
“I didn’t shoot to kill him. I didn’t shoot to wound him. I shot to stop the threat,” Tensing insisted on the witness stand. He repeating several times that he followed his training to “stop the threat.”
As he did last November, Tensing’s attorney argued that DuBose used his car as a weapon against the officer. This time, Matthews got support from Cincinnati Police Sgt. Shannon Heine, who was a homicide detective and conducted the formal police interview of Tensing after the shooting.
Heine was called to testify for the prosecution, but ended up helping the defense case in the second trial when Mathews cross-examined her.
In a courtroom bombshell, Heine testified that she thought the shooting could be justified.
"Based on my time and training with internal investigations, I thought I was looking at an officer-involved-shooting where its actions may be determined to be justified based on the events surrounding the actual shooting," Heine testified.
Tieger’s partner, assistant prosecutor Stacey DeGraffenreid, walked the prosecution’s video expert though his frame-by-framed, timed-to-the millisecond breakdown of the body cam video. The prosecution claimed it showed that DuBose’s left arm wasn’t caught in the car, Tensing pulled his gun before the car moved and when it did, it only moved a few feet, and Tensing wasn’t falling or being dragged when he shot DuBose.
Ghiz’s jury instructions were explicit per Supreme Court rulings that give police a wide berth in use-of-force cases: jurors had to put themselves in the shoes of a “reasonable” police officer.
Tennessee vs. Garner in 1985 says an officer can’t use deadly force to prevent a suspect from fleeing unless the officer fears that the suspect might kill or seriously injure the officer or another person.
Graham vs. Connor in 1989 says an officer is not guilty of using excessive force if the force used could be seen as objectively reasonable and is not malicious or sadistic under the circumstances. The high court said reasonableness must be judged from the perspective of a reasonable officer on the scene, allowing for “the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.”
Here’s what that meant in the Tensing case:
If jurors thought Tensing was lying when he said he shot DuBose to “stop the threat”; if they believed he purposely shot DuBose in the head; if they thought, after watching the body-camera video, that Tensing didn’t have reason to fear for his life and that he acted contrary to what a reasonable officer would have, then the instructions said they should have voted to convict him of murder.
If they thought Tensing shot DuBose in a rage or passion provoked by DuBose, if they thought Tensing didn’t have reason to fear for his life and that he acted contrary to what a reasonable officer would have, they should have voted to convict him of voluntary manslaughter. In Ohio, the legal definition of voluntary manslaughter is killing “under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force.”
If jurors believed Tensing’s story that his arm was caught in DuBose’s car, he was being dragged and he was in fear of his life, and that he acted the way a reasonable officer would have, the instructions said they should have voted to acquit Tensing.
A voluntary manslaughter conviction carries a sentence of three to 11 years; murder is 15 years to life.
Tensing and his family have not spoken to the media during the trials, and public support for them has not been as obvious. Two weeks ago, a petition asking Deters to drop the case was posted on change.org. It had more than 5,6500 signatures as of Tuesday evening.
SEE WCPO's complete coverage at WCPO.com/TensingTrial