CINCINNATI – The Ray Tensing prosecutor claimed the defense excused two black jurors based on race, according to court transcripts released Tuesday.
The transcripts from 12 private sidebars reveal what jurors, the media and the public watching the Tensing retrial on livestream didn’t hear, notably:
Attorneys arguing in front of Judge Leslie Ghiz about allowing a homicide investigator to give her opinion on whether the shooting was justified;
Which photos of bullet wounds in Sam DuBose’s head to show the jurors;
Whether witnesses should – or could - testify to how much marijuana DuBose had in his car and in his system when Tensing shot him during that 2015 traffic stop;
How many of the former University of Cincinnati officer's traffic stops involved minority drivers.
Those matters were discussed in private away from microphones and the earshot of jurors. Three other sidebars occurred when witnesses asked not to be photographed on the stand. In one, Ghiz asked Dr. Karen Looman, the chief deputy coroner who performed the autopsy on DuBose, why she didn’t want to be videotaped.
“I’d rather not end up on YouTube, which is what happened the first time,” Looman responded.
“I see,” Ghiz said, and approved her request.
The trial of a white cop who shot an unarmed black motorist naturally had racial overtones, especially after the first Tensing trial ended in a hung jury when the 10 white jurors and two African-American jurors voted along racial lines, according to the attorneys.
The same thing happened in the retrial, attorneys said afterward, with nine white jurors and three African-American jurors voting by color.
In two sidebars on June 7, Assistant Prosecutor Seth Tieger challenged defense attorney Stew Mathews upon releasing two African-American jurors. (Editor’s note: statements have been edited for brevity.)
“Judge, I mean, if the record could reflect he’s excused an African-American male juror,” Tieger said in the first sidebar. “And I know with Batson, we’ve got to show a pattern, but I would ask the Court to ask the defense team what the race-neutral reason was for excusing him.”
Tieger was referring to a Supreme Court decision, Batson v. Kentucky, in which the high court ruled that a prosecutor's use of peremptory challenge in a criminal case may not be used to exclude jurors based solely on race.
“I would argue Batson does not apply to the case, number one,” Mathews replied. “But race-neutral reason is the [juror's] response to the questions about his DUI convictions, and he mentioned that he was stopped by law enforcement for speeding and got into an argument … that resulted in some racial epithets being thrown. And he had what I considered a very negative opinion of law enforcement.”
“Thank you. He’s excused,” Ghiz said.
Tieger objected again when Mathews excused a female black juror.
Tieger: “Judge, I think this is getting to be a pattern now of excusing minorities. And she was an extremely fair juror. She was funny. She had banter back with Mr. Mathews, laughing and joking about different things. She absolutely said that she can be fair. She could sign all the verdict forms and I just don’t see a race-neutral reason that he would have to bump her.”
Ghiz: “Mr. Mathews, your response.
Mathews: “My first response is, number one, I don’t think we’re required to state a reason. Number two, I didn’t like her answers on the questionnaire. I’m sure Mr, Tieger did, but I’ll get specific and say that she indicated she watched [Tensing’s body camera video], she had formed an opinion, but she could set that aside. She indicated she felt the shooting was not justified from what she saw on the video. She said she, after having watched the trial, she has an opinion in reference to guilty or not guilty. And I don’t like the rest of her responses.”
Ghiz: “OK, she’ll be excused. I’m noting your objection.”
Tieger: “Judge, if he tries to excuse another African-American juror, I would hope that the Court would question that pretty severely.”