What's next in Ray Tensing retrial? Another hung jury? Insights from WCPO legal experts

Judge delays jury selection
What's next in Tensing retrial? Experts respond
Posted at 7:19 AM, May 30, 2017
and last updated 2017-06-03 08:14:52-04

CINCINNATI -- What impact will a new judge and new prosecutors have on the Ray Tensing retrial? Is another hung jury likely? Will the jury be racially representative of the community this time?

Those are just some of the questions as Tensing's retrial moves on to jury selection this week. That was supposed to start Tuesday, but Judge Leslie Ghiz delayed it for at least two days while she works on new rules to restrict media access and keep jurors' identities secret.

Ghiz took the bench just long enough at 10 a.m. to announce that she had sent prospective jurors home "until I can figure out how to do it." A hearing is scheduled for 9:30 a.m. Thursday.

For people who watched the last trial, the first differences they will notice are Ghiz, a former city council member, on the bench and two new assistant prosecutors, Stacey DeGraffenreid and Seth Tieger, replacing Joe Deters and two of his co-chief assistants. But will they make a difference in the outcome of the retrial?

WCPO asked several local attorneys and a former judge to preview the retrial. Our experts included attorneys Marty Pinales, Carl Lewis, Merlyn Shiverdecker and Rodney Harris, along with former judge Norbert Nadel, now county recorder.

Their answers are featured below.

Judge Leslie Ghiz

Tensing, a white former University of Cincinnati police officer, faces murder and voluntary manslaughter charges for shooting Sam DuBose, an unarmed black motorist, during a traffic stop on July 19, 2015. Tensing’s first trial last November – a sensational affair that split the community and was followed nationwide – ended in a hung jury.

How will Ghiz handle the case?

This is by far the biggest case Ghiz has had in four years on the bench, and she has already put her stamp on it.

Last week, Ghiz barred the prosecution from entering Tensing’s Confederate flag T-shirt into evidence, calling it extremely prejudicial. The T-shirt was allowed in the first trial under Judge Megan Shanahan.

Ghiz also put strict restrictions on media access to her courtroom and the floor outside her door. That prompted legal challenges by WCPO and other media outlets. 

Lewis: “Judge Ghiz is a very, very intelligent judge, very in tune. What I like most about Judge Ghiz — just as Judge Shanahan — they not only have the intellect and the legal experience, they bring common sense to the bench and they understand what needs to be in a case, what doesn't need to be in a case, and both judges will let you try your case.”

Nadel: “She's experienced. She's been in the courtroom. She's been a judge for a few years. I think she'll do fine.”

Shiverdecker: “The judge is not an active participant in the trial. They’re the referee. They're calling balls and strikes. The law does not change regardless of who the judge is. There are discretionary calls on the admission of evidence, and Judge Ghiz, I'm sure, will call it the way she sees that it should be called.”

Pinales: “I've never had a case with her. I've had matters where I've seen her in the courtroom and she seems well qualified.”

Last week, Ghiz admonished Deters for breaking her gag order and giving an interview to WCPO anchor Tanya O'Rourke. But Ghiz did not hold Deters in contempt or drop the charges against Tensing as requested in a motion by Tensing’s attorney, Stew Mathews. Mathews said Deters’ interview “poisoned” the jury pool.

Deters suggested in the interview that Ghiz could add lesser charges to the original charges of murder and voluntary manslaughter. That could make a significant difference to a jury.

Ghiz served three terms on city council starting in 2005, but lost her seat in a 2011 purge by young Democrats led by PG Sittenfeld, Yvette Simpson and Chris Seelbach. Ghiz was elected to the bench in 2012 and took office in February, 2013.

She is the fourth judge assigned to the Tensing case. Shanahan was nine months’ pregnant last December and recused herself. Two judges picked at random, Beth Myers and Thomas Heekin, also recused themselves. The jury commissioner’s computer then picked Ghiz.

What should we expect from the new prosecutors?

Less showboating and a professional job, according to Pinales.

Deters himself handled the cross-examination of Tensing and opening and close in the first trial and criticized his performance when the trial was over, saying “I have to do better” in the retrial. But later, Deters took himself and Co-Chief Assistant Prosecutors Mark Piepmeier and Rick Gibson off the Tensing retrial so they could handle the sentencing hearing for serial killer Anthony Kirkland, originally scheduled in May. It has since been postponed to August.

Seth Tieger and Stacey DeGraffenreid.

DeGraffenreid and Tieger are everyday trial lawyers and have worked high-profile cases. DeGraffenreid was co-special counsel to Piepmeier in the police shooting of John Caldwell III at the Beavercreek Walmart in 2014. Tieger successfully prosecuted David Bell in a 2014 murder case.

Pinales: “I think you want qualified people and I think you have two well-qualified, non-showboating prosecutors. I think they present the facts without trying to inflame the jury.”

Harris: “The main thing I think is you have a different set of eyes...Both of these attorneys are experienced and I would expect a good job from them.”

Shiverdecker: “All lawyers have a little different style. Mark and Rick had their own style. Seth has his own style. Steph does. They're very competent lawyers, so you will not see a change in the ability or the professionalism of the prosecution."

Will the racial balance of the jury improve?

There is a lot of attention on the racial balance of the jury because last year’s jury consisted of 10 whites and two blacks. The four alternate jurors were white.

Ray Tensing and Sam DuBose

Two more blacks could have been seated, but they said they did not want to participate, Deters said after the trial. Mathews said he could have used peremptory challenges to get an all-white jury, but he did not want that.

Harris, a public defender and member of the Black Lawyers Association of Cincinnati (BLAC), said BLAC hosted three community forums this month to answer questions about the trial, and he said the process for selecting a jury was a predominant one.

Hamilton County fills the jury pool from voter rolls, Deters has said. About 1,000 prospective jurors were summoned for the retrial. That number was whittled to 243 after hardship hearings, and then to 180, who filled out a 25-page questionnaire last week.

When Ghiz gives the word, those 180 will be in the courthouse for voir dire. That's when attorneys and the judge can question prospective jurors in court. Attorneys reviewed the questionnaires over the weekend trying to identify jurors who might be partial to one side.

Shiverdecker: “Ostensibly, what you're trying to do is get a fair and impartial jury. Obviously, what you're really trying to do is get a jury where jurors are more sympathetic to your position and less sympathetic to the other side.”

In the Tensing case, the attorneys are not shopping for their usual jurors,  Shiverdecker said.

“Typically, the prosecutor is looking for all law-and-order, pro-police people. They're less inclined to have people who would be considered independent, free thinkers or very liberal individuals. Typically, the defense is not looking to have pro-police, pro-prosecution, normally conservative people.

“In this case, I believe the defense is going to try to get more pro-police people and the prosecutor would be less likely to do that in a normal case,”  Shiverdecker  said.

Harris said Hamilton County ought to expand the jury source list beyond the voters from the previous election.

“Most of the community wants to know about this jury source list,” Harris said. “The Ohio Revised Code allows for jury sources to come from registered voters from the year prior, but also allows for driver's licenses and state ID's to be used.

“It's been of interest to the community because most believe if you have that supplement of the driver's licenses and the state IDs it will cast that net much broader and will get more jurors and get more of a diverse pool.”

The juror questionnaire: Another revolt?

The questionnaire led to a “revolt in the jury room” in the last trial, Deters said. Shanahan promised prospective jurors she wouldn’t release the questionnaires -- and promised the jury again after it was seated.  But on the fourth day of the trial, there was a bombshell.  The judge said she would release the questionnaires in response to a media lawsuit.  After she announced that in court, the jury left for a break and refused to return for two hours until she coaxed them back.

Shanahan changed her mind, though, and she didn't release the questionnaires until two weeks after the trial ended in a hung jury. But the damage to jurors' trust was done.

Knowing that, this year’s crop of prospective jurors might be inclined to not express honest, open and revealing opinions, some of our experts suggested.

Pinales: “It will be interesting on the questionnaires because of the matter that came out last time of making them public. The purpose of a questionnaire is to get information from a prospective juror to be able to analyze it and maybe get things that they wouldn't say in an open courtroom. Well, now if they know what they put down may be public, that's a different story.”

Nadel: “It's up to each individual juror how honest they want to be in their response. Do they go in there wanting to be a member of that jury and answering questions appropriately as to not offend so they would hopefully not be excused? Or, are there people going in saying, ‘Hey, I really don't want to have anything to do with this. I don't want to be here for two, three or four weeks,’ and give answers to questions that would cause their fairness and impartiality to be questioned and maybe a basis to excuse those?”

In last year's questionnaire, prospective jurors were asked their opinions about Black Lives Matter, police shootings, racial bias, personal safety and the criminal justice system, among other things.

Could there be a change of venue?

When Deters said in December he wanted the trial moved to Columbus or Cleveland, he acknowledged his request was uncommon because it’s usually the defense that seeks a change in venue.

But Deters said issues of race, DuBose's criminal background and lifestyle (he had 13 kids by at least seven women) "absolutely crept into the jury room" even though Shanahan banned testimony about DuBose's criminal and health records.

Deters said moving the trial would improve the chance of finding jurors who haven't been exposed to the deluge of media coverage the case has received here.

Ghiz said she would wait to see if a fair and impartial jury could be seated here before deciding on a change of venue.

Will the retrial end in another hung jury?

Lewis said he thinks so.

"Quite candidly, I don't think it will be any different in terms of the outcome. I think we might have another hung jury,” Lewis said.

“The evidence will be the same. Styles change. The lawyers are great. Prosecutors are great. The judge is great — Judge Ghiz. So, it's just a matter of whether or not the state can convince all 12 jurors — all 12 — that they've met the burden of proof beyond a reasonable doubt. And, as the old saying goes, it only takes one to hang a jury...My opinion is that the state is going to have a difficult time again.”

Nadel: “I think the State of Ohio will have a really difficult burden. I really do. They've got two very serious counts and you never can predict what a jury will do, but I think the State of Ohio will have a very difficult time getting 12 people to agree.”

Pinales: "(Police officers) are not given a legal leeway. They seem to be given a leeway with jurors around the country.”

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