CINCINNATI -- The jury hearing the Ray Tensing retrial starting Thursday will be slightly more racially balanced than the jury in the first trial, and that’s a good thing, a local black attorney says.
Whether that will change the outcome from the first trial, assure skeptics that the retrial is more fair or affect it at all remains to be seen.
Opening statements are scheduled for Thursday morning, then witness testimony for the prosecution will begin. And it will all be done under the specter of race.
Rodney Harris of the Black Lawyers Association of Cincinnati said jury diversity is important, especially when it's time for deliberations.
“Once you get race, culture, into the jury room, it changes people,” Harris said. “People [become] exposed to different cultures, different races, different issues that they may not have thought about just because without that person there the conversation didn't go that direction.”
Harris said the 25 percent representation of black jurors in the retrial mirrors the percentage of black people in Hamilton County.
“Anytime you're talking about three out of 12 for any jury in the county, that's about where it should be,” Harris said.
Three black jurors were seated Wednesday for the retrial – one more than in the first trial last November that ended in a hung jury. The previous 12-member jury couldn’t reach a unanimous verdict that Tensing, a white man and former University of CIncinnati police officer, was guilty or innocent of the charges of murder and voluntary manslaughter for shooting Sam DuBose, a black motorist, during a traffic stop in Mount Auburn on July 19, 2015.
After the first trial, Hamilton County Prosecutor Joe Deters, who argued the case against Tensing, said there was no question that racial issues entered the jury room.
The retrial jury includes two black women, one black man, seven white women and two white men. The four alternates are two white men, one white woman and one black woman.
Another local attorney, Merlyn Shiverdecker, said the racial makeup of the jury isn’t that important to the prosecution and defense. He may have a point. When counsel used their peremptory challenges to dismiss jurors without cause Wednesday, the defense excused one black woman and one white woman, and the prosecution excused two white men.
“I think it's more important for the community to have diversity in makeup than it is particular to either party,” Shiverdecker said.
But a local defense attorney, Marty Pinales, disagreed. Pinales thinks it favors the prosecution in this case to have more black jurors.
“If the people are following what would be perceived feelings, then I think it would be very good for the prosecution. From the defense point of view, I think they would rather not have an African-American,” Pinales said.
Race was clearly on the attorney’s minds when they wrote the 174 questions for the 23-page juror questionnaires. There were more than a half-dozen pointed questions asking for opinions about race and Black Lives Matter.
Two of the questions went right to the heart of the case.
No. 115: “There has been a lot of discussion about the number of unarmed African-Americans shot by police officers. Do you feel there are problems in area, and what do you think are the causes of the problems?
No. 116: “Do you believe that law enforcement targets African-Americans and other minorities for arrests and ticketing?”
Other questions were directed at the hearts of the prospective jurors:
No. 124: “Is there any racial or ethnic group that you do not feel comfortable around?”
No. 126: “Have you ever had a negative or frightening experience with a person of another race?
No. 127: “Some races and/ethnic groups tend to be more violent that others. Agree? Disagree? No opinion?”
There was no telling how all the jurors answered these questions because Judge Leslie Ghiz refused media requests to release juror questionnaires. But some attorney questions to individual jurors during three days of voir dire exposed raw feelings about the races.
In those cases, jurors were dismissed without cause.
Another black attorney, Carl Lewis, said Ghiz’s decision to withhold the questionnaires may have racial implications later.
"It gives the public a feeling of ... is there something being hidden? But more importantly, all of this means nothing, means nothing to certain members of the community if there's a conviction,” Lewis said. “It means everything if there is another mistrial or an acquittal."
While the facts of the case haven’t changed, there is a new judge and two new prosecutors. Seth Tieger and Stacey DeGraffenreid have replaced the team of Deters, Mark Piepmeier and Rick Gibson.
And Ghiz has barred the T-shirt with a Confederate flag that Tensing wore under his uniform when he shot DuBose as too prejudicial.
Deters said he wanted his original team to work on the resentencing hearing for serial killer Anthony Kirkland, which was originally scheduled to coincide with the Tensing retrial. The Kirkland hearing was recently postponed to August.
But Deters has still had an impact on the retrial. Despite Ghiz's gag order on the attorneys, he said in an interview with WCPO's Tanya O'Rourke that Ghiz may add lesser charges against Tensing. That prompted defense attorney Stew Mathews to ask Ghiz to throw out the case. The judge refused with a rebuke against the prosecutor's office.
Ghiz replaces Judge Megan Shanahan, who recused herself after the first trial because she was nine months’ pregnant. Mathews returns as defense attorney.
The opening statements are not evidence but give attorneys the opportunity to lay out their case. Experts say attorneys don’t want to overpromise and not deliver or jurors won't believe their version of the facts.
“It's kind of a road map, if you will, for the jurors to understand what will be coming up during the trial,” Shiverdecker said.
Tieger and DeGraffenreid will claim the evidence - especially the video from Tensing's body camera - shows Tensing intentionally shot DuBose and Tensing wasn't being dragged by DuBose's car as DuBose tried to pull away from the traffic stop.
Mathews will claim that the video indicates Tensing was being dragged and in fear for his life when he fired the fatal shot.
Opening statements also give attorneys the opportunity to connect with jurors and get jurors to trust them and believe what they're saying, Harris said.
“What I like to do is engage and make eye contact - make sure you circulate around the room and so forth - and point out what you think is important,” Harris said.
The first witnesses will include three members of the UC police department - Lt. Tim Barge, Officer Phillip Kidd and Officer David Lindenschmidt, according to Ghiz. All three testified in the first trial. Kidd and Lindenschmidt said they went to the scene of the traffic stop, on Rice Street, to back up Tensing and arrived just before Tensing shot DuBose. They testified that they did not see DuBose’s car drag Tensing.
DuBose family members have consistently been in court, but many may miss opening statements because they're dealing with what one calls another family tragedy.
Only four media members will be allowed in the courtroom under restrictions set by Ghiz. Others can watch the proceedings on livestream in the media room in the courthouse.
WCPO and other media outlets have sued Ghiz in the Ohio First District Court of Appeals to force her to release the juror questionnaires and remove some restrictions on media access to the courtroom.
See all of WCPO's coverage of the trial at WCPO.com/TensingTrial.