CINCINNATI – All of us might be able to agree about one thing in the Ray Tensing retrial, now that there's another hung jury.
Nobody outside of Sam DuBose’s family expected a guilty verdict.
The DuBose family had been silent up to the last few days. As they waited and waited, DuBose’s mother Audrey, sister Terina Allen and daughter Samantha Johnson told WCPO they held out hope for a murder conviction. Allen said she expected it. Johnson demanded it. She said manslaughter wouldn’t do. Audrey DuBose left it in God’s hands.
But that turned out to be wishful thinking.
Not even a more compelling prosecution could change the result from the first Tensing trial, not even 32 hours of deliberations. That’s the longest deliberation in memory in Hamilton County.
So now what?
Another retrial, including the lesser charge of reckless homicide? A change of venue? What about a Department of Justice investigation into possible civil rights violations? A plea deal? Or will county prosecutor Joe Deters drop the charges?
Deters has until July 24 to decide. That's when Judge Leslie Ghiz scheduled the next hearing. Deters gave word that he would not comment on Friday's mistrial until early next week. The DuBose family is demanding another trial.
The jury said it was "almost evenly split regarding our vote toward the final verdict," Ghiz read from a note by the foreperson. That's a big divide for third-trial prosecutors to overcome.
And what about the bigger picture?
WATCH Judge Leslie Ghiz declare a mistrial and Tensing’s reaction:
What does this mean for our justice system? Did it work as it is supposed to? Or is it stacked in favor of the police and against any person an officer stops?
What does it show when, statistically, black Americans are 2.5 times more likely to be killed by police than white Americans -- and that 40 percent of the unarmed people shot and killed by police in the year DuBose died were black men, even though black men made up just 6 percent of the nation’s population? That’s all according to a 2016 Washington Post report.
And how are officers’ actions affected by two Supreme Court decisions that give them wide berth in use-of-force cases?
Everybody wants to know what happened in the jury room. Was there racial bias? That happened in the first trial last November, Deters said. But unless or until the jurors reveal how they voted and why, we can only guess the reason they didn’t convict or acquit Tensing. The former University of Cincinnati officer faced murder and voluntary manslaughter charges for shooting DuBose in the head when he started to drive away from a traffic stop in 2015.
WATCH Tensing’s raw body camera video below:
If the nine white jurors and three black jurors judged the case solely on the basis of the evidence, whom did they believe or not believe?
The prosecution’s case, centered on an expert’s frame-by frame analysis of Tensing’s body camera video, was even more compelling than the first time.
DuBose’s sister said she was more satisfied with the new prosecution team of Stacey DeGraffenreid and Seth Tieger than the first trial’s team of Deters and assistants Mark Piepmeier and Rick Gibson.
“I think this time they went in harder on Tensing,” Allen told WCPO after Monday’s closing arguments. “I think that was great. I think (the closing arguments) brilliantly tied in the whole trial.”
From the opening statement, DeGraffenreid reminded the jurors to focus on the video and she carefully guided them through the raw body camera version and expert witness Grant Fredericks’ frame-by-frame, down-to-the-millisecond, timed-to-the-gunshot presentation. Fredericks fine-tuned his slideshow, and with DeGraffenreid’s help, made it easier for the jury to follow.
WATCH Fredericks’ testimony below:
At the close and during Tensing’s testimony, Tieger attacked Tensing -- not only for the shooting, but for his actions afterward, when Tensing told fellow officers that DuBose was dragging him and complained about his minor injuries without offering any aid to DuBose.
"You knew your gun was loaded – one bullet in the chamber. You know if you pulled the trigger it would fire a bullet. Your index finger went to the trigger, right? You pulled the trigger and meant to do it. You purposefully aimed for his head,” Tieger said.
"That's the only thing I could see," Tensing said.
"Your gun was between 1 and 2 feet from his head. And after all these purposeful acts, you told the jury you didn't mean to kill him?" Tieger asked.
“I meant to stop the threat. I didn’t shoot to kill him. I didn’t shoot to wound him. I shot to stop the threat,” Tensing said.
Tieger had one more question for Tensing before testimony in the trial ended:
“What did you think would happen after you shot him in the head? He would just walk away?”
“I never thought about that,” Tensing said.
The defense, though, benefited from changes in testimony and evidence -- specifically, what was added and what was omitted from the first trial.
As he did last November, defense attorney Stew Mathews argued that DuBose used his car as a weapon against Tensing. 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.
"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 over Tieger’s objection.
Heine had testified in the first trial about her interview with Tensing, but she wasn’t forthcoming about her own opinion until Mathews asked her the second time around.
“I would suggest to you that Shannon Heine, who is as close to the investigation in this matter and knows as much about this case as anybody, hit the nail on the head,” Mathews said in wrapping up his closing argument.
The defense brought in a new forensic video expert, Scott Roder, to counter Fredericks’ presentation. Roder synched the audio from the body camera to the video -- he said Fredericks’ failure to do that was a “fatal flaw” – and he challenged Fredericks’ conclusions on just about everything -- when Tensing fired his gun, when DuBose’s car moved, how far it moved.
WATCH Roder's testimony below:
Roder dismissed Fredericks’ timing in milliseconds and said he relied on his 20 years of experience, his eye and common sense to determine what was happening in the video. But when Roder pointed to the video board to demonstrate to the jury what he claimed he saw, it wasn’t as easy to follow. Roder, who owns a California-based company called The Evidence Room, also had a brashness and know-it-all attitude that might have rubbed some Midwestern jurors the wrong way.
Ghiz might have helped the defense when she excluded Tensing’s Confederate flag T-shirt, ruling it too prejudicial. Tieger still tried to depict Tensing as a racist, based on UC police data that Tensing wrote 83.5 percent of his tickets to minority drivers, but Mathews objected to that and Ghiz ended that line of questioning.
Ghiz also made a decision that might have ensured a mistrial when she rejected the prosecution’s attempt to add a lesser included charge of reckless homicide. That would have given jurors a way out of their predicament. Tieger argued that an additional charge was necessary to prevent “a miscarriage of justice” if jurors couldn’t convict Tensing on the original charges. Mathews objected, and Ghiz said she rejected the motion because testimony was underway.
Reckless homicide carries a sentence of one to five years. Voluntary manslaughter is three to 11. A murder conviction is 15 years to life.
Once the case went to the jury, the jurors were supposed to follow Ghiz’s instructions and the law in considering each charge:
If they 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.
During her jury instructions, Ghiz counseled the jurors on the two Supreme Court decisions widely cited in use-of-force cases.
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.”
Local attorney Rodney Harris said he and others in the Cincinnati Black Lawyers Association wanted the community to understand the legal standards and so they took care to explain that in three community forums before the trial.
“It’s a very tough standard as the cases around the country show,” Harris told WCPO while waiting through Thursday’s deliberations.
According to Deters, when judge Megan Shanahan called off deliberations after 25 hours in the first trial, the 10 white jurors and two black jurors were split 4-4-4 with an equal number favoring conviction on the murder change, conviction on voluntary manslaughter and acquittal.
Deters can drop the charges or try Tensing again. Since the prosecution team tried to add reckless homicide, it figures they would give jurors that option to convict in a third trial. But it was Deters who called it “a murder” when he announced the indictment against Tensing and it was Deters who insisted on pursuing the murder charge the second time, even after some people said he was overreaching. DuBose’s family, though, said it wanted nothing less than a murder conviction, and Deters will probably consider their wishes in deciding what to do next.
As for a change of venue, both sides requested that for the second trial, but Ghiz said she believed the court could seat a fair and impartial jury in Hamilton County, and she was determined to keep it here.
Maybe Mathews and Tensing would consider a deal if the Department of Justice decides to enter the case. After a hung jury, the DOJ took over the Walter Scott shooting case in South Carolina and got officer Michael Slager to take a plea deal that could send him to prison for 25 years. But the DOJ also reviewed the shootings in Ferguson, Missouri and in Baton Rouge, Louisiana, and didn’t return any charges.
Our local U.S. Attorney’s office said it wouldn’t comment on the Tensing case until the conclusion of the current trial, so maybe we’ll hear more about that soon.
The timing of the Tensing case -- coming in the midst of multiple hotly-debated police shootings around the country and accusations of racial profiling -- raised that much more attention to the issue and added to racial tension here.
Ironically -- or maybe not -- while the Tensing jury deliberated Tuesday, a Milwaukee jury acquitted an officer who shot and killed an unarmed black man last year in a case that led to several days of racial unrest.
Some prosecutors say it’s very hard to convict police in deadly use-of-force incidents because Supreme Court rulings give officers a lot of leeway. It’s hard enough just to win an indictment.
You ought to remember Tamir Rice, John Caldwell III and Michael Brown. The three black males were shot dead by police in 2014, a year before DuBose. Rice, a 12-year-old playing in a Cleveland playground, and Caldwell, 22, shopping at a Walmart outside of Dayton, were carrying toy guns. Brown, 18, was unarmed but had fought with an officer and tried to take his weapon, according to the officer. No charges were filed against the officers who killed them. The DOJ has not closed its investigation in the Caldwell case.
Since Tensing shot DuBose, you probably heard of the deaths of Scott, Terence Crutcher and Philando Castile, other black men shot by police. In those cases, the officers were charged but not convicted.
Slager shot Scott, 50, in the back five times as he ran away from a traffic stop in North Charleston, South Carolina. Slager had pulled Scott over because he had a broken tail light. Slager was charged with murder, but 11 white jurors and one black juror couldn’t reach a verdict.
Crutcher had his hands above his head when officer Betty Shelby shot him in Tulsa, Oklahoma. She said she was in fear of Crutcher, 32, after she answered a call about a truck stopped in the middle of the highway. Shelby was charged with felony manslaughter and acquitted by 10 white jurors and two black jurors.
Castile’s case is well known because his girlfriend streamed the aftermath live on Facebook. He was shot by officer Jeronimo Yanez during a traffic stop. Castile’s brake lights were out. Castile, 32, had a concealed carry permit and told Yanez he had a gun in the pocket. Yanez told Castile not to remove it. Yanez later said Castile started to remove the gun and that’s why he shot Castile seven times through the driver’s window. Yanez was charged with second-degree manslaughter. Minnesota Gov. Mark Dayton said he did not think the shooting would have happened if Castile had been white. But 10 white jurors and two black jurors found him not guilty after 30 hours of deliberations.
Some people defend the use of deadly force by police against black Americans with the argument that black Americans commit a disproportionate number of murders and other violent crimes.
“A concentration of criminal violence in minority communities means that officers will be disproportionately confronting armed and often resisting suspects in those communities, raising officers’ own risk of using lethal force,” Heather Mac Donald, a conservative researcher, wrote in the Wall Street Journal.
Tensing’s defense made a point that DuBose’s traffic stop happened in Mount Auburn and that police consider it a dangerous neighborhood. Heine testified that it ranks in the top 20 percent for crime.
“Police reform advocates and researchers as well at The Post’s own analysis has consistently concluded that there is no correlation between violent crime and who is killed by police officers,” the Post report said in 2016.
The Post said it tracked the “threat level” of each person shot by police, and independent analysts factored that in and concluded that black Americans fatally shot by police are no more likely to be posing an imminent lethal threat to officers.
“The only thing that was significant in predicting whether someone shot and killed by police was unarmed was whether or not they were black,” said Justin Nix, a criminal-justice researcher at the University of Louisville and one of the report’s authors.