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Opening statements show prosecution is taking different tack in Tensing's retrial

Prosecution changes strategy in Tensing retrial
Posted at 3:49 PM, Jun 08, 2017
and last updated 2017-06-09 10:33:00-04

CINCINNATI – Focus.

That’s going to be the key word in the prosecution’s case against Ray Tensing the second time around.

Or four words: Focus. On. The. Video.

The Rest Of The Story. That’s what the defense figures to build its case around.

At least that sums up what prosecutor Stacey DeGraffenreid and defense attorney Stew Mathews told the jury in opening statements Thursday. There couldn’t have been a wider contrast in their approach as the two sides laid out their cases in the retrial of the former University of Cincinnati police officer.

It seems clear that the new prosecution team has reworked its case since the first trial, which ended in a hung jury despite a compelling frame-by-frame expert analysis of Tensing’s body camera video from the shooting of motorist Sam DuBose. There were no theatrics from DeGraffenreid, no expressions of outrage or condemnation to enflame the jury, like we saw from Prosecutor Joe Deters last November.

Instead, DeGraffenreid was short and sweet. She took nine minutes and 20 seconds to make her point that Tensing’s body camera video is all the jury has to see to convict Tensing of murder and voluntary manslaughter charges for killing DuBose during a traffic stop on July 19, 2015.

RELATED: Everything you need to know from Day 1 in Tensing's retrial

Mathews, on the other hand, took 31 minutes and seemed to show his case is basically the same one that carried the day for Tensing last year. He not only offered a different version of what the body camera video shows, he went into Tensing’s background, blamed the UC police chief for pushing young officers like Tensing to make more traffic stops and write more tickets, and described previous traffic stops Tensing made that afternoon that Mathews claimed showed Tensing was courteous and professional to other black motorists.

In the end, Mathews blamed an uncooperative DuBose for starting the chain of events that led to his death. 

In DeGraffenried’s first appearance in front of the jurors (her partner, Seth Tieger, handled the three days of voir dire), DeGraffenreid started by explaining the two indictments, then talked briefly about how UC police had stepped up off-campus patrols to protect students during a crime wave.

“We’ll hear a lot about that, but that’s not really what this case is about,” DeGraffenreid said in a friendly, conversational tone.

“This case is about what happened on July 19 between Mr. Tensing and Mr. DuBose. When Mr. Tensing pulled over Mr. DuBose, he forgot and he didn’t use his training and he didn’t do the things he should have done and he’ll tell us he intentionally shot Mr. DuBose.”

DeGraffenreid said the body-camera video shows Tensing reached into DuBose’s driver-side window against police policy, and that Tensing’s arm didn’t get stuck as Tensing claims. Tensing says DuBose trapped the officer’s hand against the steering wheel, and that caused Tensing to fall as DuBose started to drive away. At that point, Tensing said, he feared he would be run over by DuBose’s car and fired one shot at DuBose to “end the threat.”

PHOTOS: Day 1 of Ray Tensing retrial

“We’re going to play the entire body camera video, all Mr. Tensing videos, all Officer Lindenschmidt’s video, all Officer  Kidd’s video…,” DeGraffenreid told the jury, referring to other UC officers who arrived to back up Tensing at the traffic stop.

“However, the only part you need to focus on, the only only part you’ll be deciding on in this case, are the seconds, minutes between Mr. Tensing and Mr. DuBose. You’re going to see a lot of extra stuff and I want you to focus in, and remember the elements of the indictment, I want you to focus … the most important part are those seconds.”

The body-camera video shows the whole encounter on Rice Street, from the time  Tensing approached DuBose’s stopped car, to the time he wrestled with DuBose to try to  handcuff him, to the time he fired the fatal shot into DuBose’s head. It even showed Tensing running up the street chasing DuBose’s car as it rolled to the corner, where it jumped the curb and stopped against a pole. DuBose was dead, slumped over in the front seat.

More body-cam video was shown once prosecution testimony started Thursday. It showed Tensing going to hospital after the shooting.

“You’re going to hear from experts. They’re going to go through screen by screen and walk you through the video. It is a very quick encounter,” DeGraffenreid told the jurors.

The defense will present its own body camera analysis.

"Listen to them. You’ll be able to make your own decisions,” DeGraffenreid said.

After the first trial, Deters said he didn’t make it clear to the jury what the charges specified and might have left the 12 jurors  confused. He said when deliberations ended after 25 hours, the jury was split 4-4-4 with an equal number favoring a murder conviction, a manslaughter conviction and acquittal.

That may have been the reason DeGraffenreid started her presentation by reading the grand jury indictments against Tensing.

Count 1, she said, states Tensing “purposefully caused the death of Sam DuBose.” That’s the murder indictment.

Count 2, she said, states Tensing “knowingly caused the death of Sam DuBose while under sudden passion or rage.” That’s the voluntary manslaughter indictment.

As she finished her opening statements, she explained why.

“The state of Ohio says the evidence will clearly show that this was a purposeful killing by Mr. Tensing. Count 2 is a little more complicated … Was Officer Tensing at the time, was he provoked to the point where he had to pull the gun and shoot him?” DeGraffenreid said.

She said the evidence will show “this was clearly a murder.”

Watch the prosecution's opening statements:

 

At the start of the day, Judge Leslie Ghiz told jurors that opening and closing statements are not evidence and were not be to considered in their decisions. But after Mathews’ half-hour spiel, it was clear he wasn’t going to miss a chance to make his whole case.

Mathews’ case is that Tensing was “justified” in shooting DuBose because Tensing thought he was in danger of being killed. 

“He did the only thing he could do to save his own life or keep himself from being seriously injured," Mathews said.

It’s Mathews’ job to convince the jury of his version of what happened, or at least leave jurors with a reasonable doubt about the prosecution’s version.

Mathews, whose homespun humor and self-deprecating style connects well with jurors, started by telling the jury about a popular radio show, Paul Harvey’s “The Rest of the Story,” that started in the 70s. Harvey would tell a historical tale and  hold back important details until the end. Then Harvey would say, "And now you know the rest of the story."

“I’m going to tell you the rest of the story” about the Tensing shooting, Mathews said.

Mathews first disputed the notion that Tensing stopped DuBose because DuBose’s car did not have a front license plate.

“That’s balderdash,” Mathews said.

Mathews said Tensing noticed the missing plate, then punched the number from the rear plate into his onboard computer. It told him the registered owner of the car (it turned out to be DuBose’s fiancée) was under suspension, and that’s why Tensing pulled him over, Mathews said.

Other Mathews claims:

DuBose was uncooperative from the start. He said Tensing flashed his lights and hit his yelpers, but Tensing kept going through two turns.

He said Tensing called on his radio that DuBose was “slow to stop.”  Mathews said that’s  a sign of concern to police that the driver might be “hiding contraband, throwing it out or getting ready to run.”

He said DuBose had $2,600 in cash in the car and enough marijuana to be charged with a felony. He said DuBose  “knew he was going to the Justice Center” if Tensing found it

Mathews said Tensing asked DuBose “seven or eight times” if he had a driver's license and DuBose wouldn’t give him a straight answer.

Mathews said Tensing saw a gin bottle on the floorboard between DuBose’s legs. DuBose gave Tensing the bottle and he put it on the car roof.

When Tensing told DuBose he was missing a front license plate, DuBose took the keys out of the ignition, opened the glove box and started to pull out a license plate. By then, Tensing was focused on finding out who DuBose was.

Mathews said Tensing told DuBose to take off his seat belt and step out of the car. Tensing wanted to handcuff DuBose, Mathews said, and the officer started to open the driver’s door.

That’s when DuBose closed the door with his left hand – “the first sign of aggressive resistance,” Mathews said -   and turned the key with his right hand to start the car.

DuBose “mashed” the accelerator and pinned Tensing's  hand. As a result, Tensing started to fall,  Mathews said.

At that point, Tensing reached through the window and the steering wheel to try to pull the key out of the ignition, Mathew said. He thought he might be pulled under the tires, and he pulled out his gun and shot. 

Mathews told the jury the whole encounter took less than three seconds and the body-camera video was jerky and fuzzy in spots and wouldn’t provide the same view as an NFL replay with “10 cameras looking from different angles.”

The defense attorney said Tensing had “legitimate fear of being dragged, but he allowed that “dragged” might not have been the right word for Tensing to use to describe what happened.

Mathews said DuBose turned the car left to avoid a parked car in front of him. He said Tensing “fell off” about 10 to 15  feet away as the car moved up the street.

Mathews said he would show the jury videos from three Tensing  traffic stops hours before the shooting that show Tensing  was courteous and helpful and not at all antagonistic to African-American drivers and passengers in those cases.

“They want to portray him as a racist. He wasn’t a racist," Mathews said.  “He wasn’t a hard-head, no-nonsense cop. He was an extremely human kind of a guy who was polite and respectful with people.”

Mathews showed those videos in the first trial. One ends with Tensing telling the driver, "Have a nice day."

"You, too, Officer," the driver responds,

The drivers cooperated with Tensing in those cases, Mathews said.

“Had Sam DuBose cooperated with him," Mathews told the jury, '"Sam DuBose would not have ended up shot."

Watch the defense team's opening statements:

 

Testimony followed the opening statements and will continue Friday.