Jurors unable to reach unanimous verdict in Ray Tensing murder trial, judge declares mistrial

Posted at 10:12 AM, Nov 12, 2016
and last updated 2016-11-13 18:03:46-05

CINCINNATI -- Judge Megan Shanahan ordered a mistrial in the Ray Tensing murder trial Saturday morning after the jury said it couldn't reach a verdict despite more than 25 hours of deliberations.

The jurors deliberated for two hours starting at 8 a.m. -- their fourth day on the task -- and then informed Shanahan they still could not reach a unanimous agreement on the two charges against the former University of Cincinnati police officer. Tensing was charged with murder and voluntary manslaughter for shooting Sam DuBose, an unarmed black motorist, during a traffic stop in 2015.

Prosecutor Joe Deters said four jurors thought Tensing was guilty of murder, and eight thought he was guilty of voluntary manslaughter.

Outside the courtroom, Deters said he was "obviously disappointed." He said the jury was "leaning toward acquittal" on the murder charge and "leaning toward conviction" on voluntary manslaughter, "but they just couldn't come to an agreement."

Asked if he would retry Tensing, Deters said he "would go through a process where we analyze the probability of success at trial. If I believe we can win, I'll retry the case."

Deters said he hoped to make a decision by a Nov. 28 hearing scheduled by Shanahan.

Civil rights attorney Al Gelhardstein said DuBose's family was "incredibly disappointed. They're really upset and they certainly want another trial."

He said the family wasn't notified that the judge's decision was coming in time for them to get to the courthouse.

A new trial would mean starting over with a new jury. Deters has the option to file new charges or drop charges all together.

Deters said he would not file lesser charges, and he disagreed when reporters suggested he overreached on the charges -- that he should have tried Tensing for reckless homicide or negligent homicide instead.

"We thought we proved murder," Deters said, citing the prosecution expert's frame-by-frame breakdown of Tensing's body camera video.

"I can say unequivocally that charges would never have been filed" if there wasn't a body cam video to show what happened, he said.

Deters said former Judge John West presented the case to the grand jury, and the grand jury returned the charges of murder and voluntary manslaughter.

"We put a ton of time, money and effort into this," Deters said. "I'd be lying if I didn't tell you I was disappointed."

Shanahan lifted her gag order and said attorneys and jurors were free to talk to anyone about the case. Deputies ushered the jurors out of a rear door. Tensing and his family left out of a side door and also avoided the media.

Tensing did not show any noticeable reaction when Shanahan announced her decision.

Bishop Bobby Hilton called for a new trial and asked the public to "stand by" and keep demonstrations peaceful.

DuBose's family has said any violence would dishonor DuBose's name. There have been small, peaceful demonstrations outside the courthouse each day since jury selection began nearly three weeks ago. They usually involved fewer than a dozen people.

Shanahan might have declared a hung jury Friday after the jurors informed her before noon that they were deadlocked. But she ordered them to continue and sequestered them for a third straight night.

By the next morning, the judge was willing to accept they wouldn't be able to agree.

One of DuBose's daughters, Teala Williamston, told WCPO Thursday that the long wait for a verdict had been hard on the family.  She said there wouldn't be justice without a murder conviction.

"There's a lot of emotions going on - happy and sad because we don't know which one we're going to get. We hope in justice," she said, "but knowing how the court system works these days, there's no telling what's going to happen."

A murder conviction would have carried a sentence of 15 years to life. Voluntary manslaughter would have been three to 11 years.

To return a murder conviction, the 12 jurors – two blacks and 10 whites - would have had to agree that Tensing purposefully killed DuBose and Tensing was not justified in his use of deadly force.

While they deliberated, the jury sent several questions to the judge that suggested they were hung up over  "use of force" law and the conflicting testimony from both sides over whether the shooting was justified.  

When Shanahan charged the jury, she explained that, by law, murder is a purposeful killing; voluntary manslaughter is committed in rage or passion when a person thinks he or she is in danger of death or serious bodily harm.  

On Friday, the jurors asked for a "read-back" of the testimony from the use of force experts.

The defense's expert, James Scanlon, said his analysis of Tensing's body-camera video confirmed what Tensing told homicide investigators two days after the shooting: Tensing said his arm was trapped in DuBose's car; he was being dragged as DuBose "mashed" the accelerator and pulled way from the stop; the movement of the car violently twisted Tensing; he lost his balance and started to fall; Tensing fired in self-defense.

"I would be in fear of my life if I was in that situation," said Scanlon, a 33-year veteran of the Columbus police force and now a police trainer. "My opinion is the actions of Ray Tensing were justified, reasonable and consistent with all police tactics and training."

The prosecution's expert, Scott Haug, an Idaho police chief and police trainer, testified that Tensing "acted irresponsibly" and his use of force was "not justified."

According to Haug, DuBose was never dragged and did not pose a threat to Tensing; Tensing violated proper police procedure when he reached into DuBose's car, and Tensing overreacted to a minor traffic violation.

Besides the "use of force" testimony, the prosecution said its video analysis, broken down frame-by-frame to milliseconds by a true video forensic expert, refuted all of Tensing's claims.

The expert, Grant Fredericks, said his presentation showed that Tensing wasn't dragged, his arm wasn't stuck in the steering wheel and he wasn't falling when he shot DuBose. Fredericks showed in detail that the car didn't move until a split second before the shot, and then it only moved slowly 1 or 2 feet.

But there was a moment in closing arguments when defense attorney Stew Mathews might had made a stronger, personal connection with jurors.

"Ask yourselves if I would have done anything differently to protect myself if...I was stuck in a car when it was starting to move. I suggest the evidence in this case, ladies and gentlemen, doesn't even come close to proving that Ray Tensing is guilty of murder or voluntary manslaughter," Mathews said.

The trial drew national attention following several recent police shootings across the country and the killing of police officers in retaliation.

Tensing was on one-man patrol when he stopped DuBose for driving without a front license plate on a city street in Mount Auburn around 6:30 p.m. on July 19, 2015. Millions of people around the world have viewed the body cam video on the web and TV.

Çincinnati still has scars from the 2001 shooting of Timothy Thomas, a 19-year-old unarmed black man, by white Cincinnati Police officer Stephen Roach. Three days' of rioting followed the shooting. Roach was not convicted.

Officials took some extra security precautions this week. They opened the Cincinnati-Hamilton County Regional Emergency Operations Center, signaling the city was preparing for whatever followed the verdict. It is typically used for emergencies and natural disasters.

Anticipating a verdict Thursday,  they set up a blockade around District 1 police headquarters in the West End. And a sign on the Clerk of Courts office door said it was closed "due to current emergency situations."

County offices were closed Friday because of Veterans Day. Shanahan's courtroom was the only one open in the courthouse. Deputies and staff were called in on overtime.

Police stepped up patrols around the courthouse. Garbage cans were tethered. Some businesses removed  outdoor tables and chairs.

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