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The defense takes the floor and prosecution drops a bombshell

Everything to know from Day 6 of Tensing's retrial
Key moments from Day 6 of the Tensing retrial
Posted at 3:43 PM, Jun 15, 2017

CINCINNATI -- Before the defense took the floor Thursday, prosecutors issued a motion that potentially showed their hand: They requested lesser charges added to the indictment against former police officer Ray Tensing.

Tensing, a former University of Cincinnati officer, shot and killed Sam DuBose during a traffic stop in 2015.

Here are the most important moments from Thursday, day six in the Tensing retrial:

Lesser charges denied -- for now

A day after resting its case, the prosecution requested a new, lesser charge be added to the indictment against Tensing.

"As the court knows, this is the second trial we've been through," Tieger said. "The first jury was unable to reach a verdict. To prevent a miscarriage of justice, where there would be a second hung jury, the state feels it's important to give the lesser offense of reckless homicide."

Judge Leslie Ghiz denied the motion to add reckless homicide to the indictment.

"Essentially, what the state asks me to do is to give the jury an option," Ghiz said. "I don't see it, based on a case such as this."

Ghiz said the possibility of a lesser charge could be "revisited" after the defense presents its case.

Defense's expert witness spars with assistant prosecutor

Much of forensic video analyst Scott Roder's early testimony was a rehash of his qualifications and experience. In the pre-trial hearing, Roder said he’s worked as an evidence specialist for 24 years. Currently, he’s Executive Head and Evidence Specialist for The Evidence Room.

The Evidence Room’s website states Roder has 17 years of experience in demonstrative evidence consulting.

Assistant Prosecutor Stacey DeGraffenreid questioned Thursday the amount of time Roder has worked with evidence.

"You said 17 years earlier and now you're saying 20 years," DeGraffenreid said. "The number keeps going up."

"I'm perfectly qualified to talk about this, it's what I do for a living," Roder said. "I don't have a paper route."

Roder's presentation concluded that DuBose's car went 24 miles per hour before hitting the guardrail after the shooting. He said there's "no way a car could go that fast...without accelerating."

Roder also said the accelerating car heard in the isolated, slowed-down audio from the body camera video came from DuBose's car. Roder said it was "highly unlikely" that the sound came from a passing car shown traveling northbound in the body camera video.

Watch Roder's testimony below:

 

Roder criticized the prosecution's expert, Grant Fredericks and said he "didn't analyze audio."

During cross-examination, DeGraffenreid played the audio and video again at normal speed. Roder said he "couldn't comment on the sound at normal speed."

Roder said jurors needed to "use common sense" and "take a holistic approach" when analyzing the body camera video.

He also said he "may be off" by "a millisecond or two."

When DeGraffenreid continued to ask Roder about his qualifications and the scientific aspects of his analysis, the exchange became heated.

"Use your common sense," he said. "I've been doing this for 20 years. His arm's in the car, the car's moving and he's pinned to the car."

At one point, Ghiz had to instruct Roder to stop interjecting before the assistant prosecutor could ask a question.

Officer describes a remorseful Tensing

The only time we've seen Tensing emotional has been in the court room. In his body camera footage, audio and recorded interviews with detectives, he is never visibly upset.

Cincinnati Police Officer Nathan Asbury drove Tensing to the hospital on the day of the fatal shooting. He described a different demeanor, much more like the one on display in court.

Watch Asbury's testimony below:

 

Asbury said Tensing told him DuBose's car dragged him. He said marks on Tensing's uniform "looked like marks from the road." 

Then, Tensing asked a nurse about DuBose's condition, Asbury said. Then Tensing put his head in his hands and "looked like he was crying."

Former colleagues describe 'no fly zone'

University of Cincinnati Police Officers Jeffrey Van Pelt and Derek Noland both described a department initiative meant to decrease crime near -- and, by default, inside -- UC's campus.

The "no fly zone" was an effort to increase traffic stops, even for minor violations, around UC's perimeter. 

Because Tensing was a motivated officer, he regularly pulled over motorists any time he saw a violation, the officers said.

Watch Van Pelt's testimony below:

 

Van Pelt said he also typically stopped motorists missing a front license plate.

Retired University of Cincinnati police officer and firearms instructor Richard Haas said Tensing "was one of my lead officers."

Tensing will testify Friday

The defendant himself will testify Friday, Ghiz said.

Tensing stuck to his story -- that he approached DuBose, put his arm in DuBose's car to try and grab the keys, his arm became caught in the steering wheel and he was dragged by the car -- when he first testified. 

"I just remember thinking, 'Oh my god, he’s going to run me over -- he’s going to kill me' -- and I just instinctively drew my gun," he said in previous testimony.

Tensing repeatedly qualified his account in that testimony by saying it was "my perception" of what happened. That was something he added since he gave a statement to Cincinnati police investigators two days after the July 19, 2015 shooting.

Tensing dabbed his eyes with tissues while on the witness stand in November.

DuBose's mother and fiancée said Tensing's tears during the first trial were all part of an act.

“We were at the Oscars just now. We was watching an actor on the stand right now,” DaShonda Reid, DuBose’s fiancée, said. “Imitating tears — tears that we’ve been crying over a year as a family — very passionate tears.  Tears because we lost someone.

“He put on tears and put on an act for a jury — only a jury.”

James Scanlon, a retired Columbus police officer, is also on the witness list for Friday. Scanlon testified as the defense's video analyst in the first trial.

In the first trial, Scanlon acknowledged that he's a training officer, not a video analyst. Under cross examination, Scanlon couldn't counter the facts demonstrated by the prosecutor's expert witness and his frame-by-frame analysis.

Assistant Prosecutor Rick Gibson previously dismissed Scanlon as a "lay person just like anyone on the jury."

Jurors will not be kept over weekend

Ghiz confirmed that the jury will not be sequestered through the weekend.

"I would have told you," she said before adjourning for the day. "No, that's not happening."

In the first trial, the jury was sequestered during deliberations as they extended through the weekend.

For complete trial coverage, visit wcpo.com/TensingTrial.