CINCINNATI -- The prosecution attacked one of its own witnesses and the defense used the Cincinnati Police Department’s lead investigator in the case to try to raise reasonable doubt in the jurors as both sides in the Ray Tensing retrial made closing arguments Monday.
Assistant prosecutor Seth Tieger, who must have regretted putting Sgt. Shannon Heine on the stand in the first place, ended up claiming that she and another homicide detective gave preferential treatment to Tensing when they interviewed him after he fatally shot Sam DuBose during a 2015 traffic stop.
Tensing is a former University of Cincinnati officer.
WATCH DeGraffenreid's closing argument below:
Tieger even accused the detectives of being part of the “good old boy network.”
While the prosecution, with the advantage of Tensing’s compelling body camera video, continued to lean on that to make its case, the defense turned to Heine’s testimony in an effort to win another hung jury for Tensing -- if not an acquittal.
As defense attorney Stew Mathews reminded the jury, Heine testified 10 days ago that she thought Tensing’s shooting might have been justifiable.
"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 said. She had answered a Mathews question over Tieger's objection.
Heine and another homicide detective conducted a videotaped interview with Tensing two days after Tensing shot DuBose during a traffic stop on Rice Street on July 19, 2015. Tensing was charged with murder and voluntary manslaughter, but his trial last November ended in a hung jury.
Heine 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.
Mathews said Monday that Heine had considered the “totality” of the evidence and not just the video and he asked the jury to give her testimony extra weight.
“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.
“Ray Tensing is not guilty of murder. He's not guilty of voluntary manslaughter," Mathews said.
Attacking Heine Monday, Tieger said she had “little experience” and she was handling her first major case. He pulled no punches when he cited some friendly conversation between the detectives and Tensing and asked why they weren’t “savage” in their questioning.
“She said, ‘Nice to meet you ... I’m glad we’re hear to talk ... Sorry for the circumstances,’” Tieger said. “’It’s just a formality. Don’t worry about it.’”
Tieger then mocked their interrogation.
“That’s not how you would treat a regular murder suspect ... [saying] ‘Sorry you just killed somebody,'” Tieger said.
He noted that the three talked about where they went to high school.
"Did they not ask difficult questions because it was 'just a formality?'" Tieger asked.
Tieger asked if “Sam DuBose’s mom and sister should be happy” with that investigation. The two were in the courtroom Monday, as they have been most days.
Tieger condemned the interview as "police judging police."
"There must be a safeguard on police because if they review themselves they can become too powerful,” Tieger said. “It's this review of the police and the military — these checks and balances in our country, through the judicial branch — which lets you, the citizens, decide if something is appropriate.”
Heine had acknowledged on the stand that she lasted only four months in the homicide unit and called it a "very short stint." Another CPD officer testified that Heine had been ”promoted out.” Heine was moved to the Central Business District and then to a special unit that studies crime data trends and flashpoints.
The jury of 12 heard a lot of the same disputes about what Tensing’s body camera video shows, the defense’s claim that Tensing had reason to fear for his life when DuBose started to pull away from the traffic stop and the prosecution’s argument that Tensing wasn’t in any danger and had no justification for shooting DuBose in the head.
The prosecution asked the jury to convict Tensing of murder, but it needed to convince them that Tensing shot DuBose to kill him, not to “stop the threat” as Tensing claims.
Short of that, Tieger told the jury that Tensing is “slam-dunk guilty on Count 2” – voluntary manslaughter. To convict on that charge, the jury would have to find that Tensing shot DuBose in a rage or passion provoked by DuBose and “reasonably sufficient to incite the defendant into using deadly force.”
To acquit Tensing, Mathews said the defense had to show a "preponderance of evidence" that Tensing had reason to fear he was in danger of death or serious bodily harm. He defined that as "51 percent" of the evidence - a "lesser standard than beyond a reasonable doubt."
"Why why would anybody yell, 'Stop! Stop!' at a car that wasn't moving?" Mathews said. "I don't think so. I think you can infer at that point that that car was moving and Ray Tensing was beginning to go down and Ray Tensing felt like his life was being threatened."
Tieger’s partner, assistant prosecutor Stacey DeGraffenreid, began the closing arguments by carefully walking the jury through the charges and highlighting the prosecution testimony about the video.
DeGraffenreid showed the entire traffic stop again and pointed out where she said it showed the car wasn’t in motion during most of the stop, Tensing wasn’t being dragged and didn’t have his arm stuck in the car, Tensing pulled his gun before the car started moving and he shot DuBose in the head after it had moved just a few feet.
“The Honda hasn’t moved,” she said at 1.483 seconds before the shot, according to the frame-by frame analysis of forensic video expert Grant Fredericks.
“Roder said it moved at 2.4,” she said, referring to the defense’s expert, Scott Roder.
“The defendant is not being dragged,” she said at 1.222 seconds. “It takes 1 to 2 seconds to pull his weapon … the car has not moved … you can see the gun.”
When Tensing fired, there was “nothing to show he was in fear of imminent danger,” DeGraffenreid said.
DeGraffenreid repeatedly referred to the case as a "puzzle" and encouraged jurors to work together to solve the puzzle.
PHOTOS: Day 8 of Ray Tensing retrial
Mathews was next and he blamed DuBose and his fiancée, who owned the car DuBose was driving, for starting the deadly events in motion. Mathews said it was DeShonda Reid’s fault for losing her license. Mathews claimed Tensing didn’t stop DuBose because the car didn’t have a front license plate; he said Tensing stopped DuBose because he ran the back-plate number and it belonged to an unregistered owner.
WATCH Mathews' closing argument below:
Mathews also threw in the fact that Reid was the mother of three of DuBose’s 13 children and later questioned whether DuBose was in ill health.
Tieger called that “character assassination.”
Mathews has been saying all along that DuBose would "never have gotten shot" if he complied with Tensing's request to show his driver's license and unbuckle his seatbelt.
Mathews didn’t play the video and didn't refer to it at length. But he did show the image of Tensing with his right arm cocked at the elbow, his hand holding the gun and pointed downward. Mathews claimed the image is consistent with the assistant coroner's report that Tensing shot downward at DuBose. But it also conflicts with Tensing's claim that he was being dragged and was falling at the time.
Mathews made some claims that hadn't been in the testimony. He referred to the driveway behind DuBose's car and estimated it was 13 1/2 feet wide. He said that was significant because it enabled him to estimate that DuBose's car had moved 10 feet in the time before Tensing shot him. His own expert testified the car had moved 5 to 7 feet. Fredericks, the prosecution's' expert, said it was "just a few feet."
Mathews also speculated that Tensing was going to run from the stop and try to lose Tensing on the narrow Mount Auburn streets.
Mathews said DuBose's car posed a reasonable threat to Tensing and that the prosecution didn't have "a smidgeon of evidence" that Tensing shot DuBose in a rage. Mathews agreed Tensing should not have reached into DuBose's car, but he added: "Just because Ray Tensing made a tactical error doesn't mean Ray Tensing has to suffer the consequences of Sam DuBose's actions."
Mathews told jurors the law says to put themselves in the officer's shoes in an officer-involved shootings and not rely on "20-20 hindsight" from experts.
Later, Judge Leslie Ghiz reminded jurors that closing arguments aren't to be considered as evidence.
WATCH Tieger's closing argument below:
Tieger was up last and he put everyone at ease for a moment by using Billy Hamilton’s speed and base-running skills to make a point.
Tieger reference the Reds' May 24 game with the Indians when Hamilton was called out at first after apparently grounding out into a game-ending double play. But the Reds called for a video review at first base, and the ump’s out call was overturned.
When Zack Cozart followed with a single, Hamilton streaked around the bases and scored the winning run.
“If there had been no video, the Reds would have lost,” Tieger said. And, he added, if there had been no video of Tensing shooting DuBose, Tensing would never have gone to trial.
It would have been the word of Tensing and two other UC officers against the word of a young mother. Alicia Napier, who testified that she watched the deadly encounter from her car parked on Rice Street. Tieger indicated the prosecutor's office would not have been able to get an indictment without the video.
Then Tieger went back on the attack.
"This is not 20-20 hindsight, it's reviewing what happened," Tieger told the jurors. "Ray Tensing lied to police and to you. And in a comic twist, his body worn camera exposed his lies."
Playing off Mathews' comment, Tieger asked the jurors to "put yourselves or family member in the place of Sam DuBose."
Tieger said Tensing's claim that he shot to "stop the threat" is "legal gymnastics and semantics."
"When Ray Tensing moved to his gun, he said my intent was to shoot him. That was well before the car even moved an inch," Tieger said.
"He had a choice to make after his tactical error: Do I disengage or do I kill him?
"To find him not guilty, you must find he was being dragged and he had no option," Tieger told the jury.
"The defense wants you to believe non-compliance equals not guilty ... that if Sam DuBose had complied, he wouldn't be dead. That's not the issue.
"A reasonable police officer would not have done what Ray Tensing did."
Tieger noted that Tensing "had acted sad, acted like he was crying." Tieger said the jury should not be fooled.
"Those weren't for Sam DuBose," Tieger said. "They were for himself."
After Ghiz read the jury instructions - she told them to consider the murder charge first - she sent them to begin deliberations. The 12 jurors discussed the case for more than four hours before being sequestered in a hotel overnight.
The first jury deliberated 25 hours over four days before Judge Megan Shanahan declared a hung jury and a mistrial.
For complete trial coverage, visit wcpo.com/TensingTrial.
WATCH Ghiz's jury instructions below: