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Can Ray Tensing jury break deadlock, or will it be a hung jury?

Jury returns for fourth day of deliberations
Posted at 7:01 AM, Nov 12, 2016

CINCINNATI  - Will there be a hung jury in the Ray Tensing murder trial?

Not if Judge Megan Shanahan can help it.  She insisted that they keep trying to reach a unanimous agreement  even after they said Friday they were deadlocked and wanted to quit.

But the specter of starting over from the beginning looms over the fourth day of deliberations Saturday, beginning at 8 a.m. The jury deliberated for nearly 24 hours in the first three days – as long as the testimony in the trial.

This could be the moment of truth, local defense attorney Marty Pinales told WCPO.

"[Saturday] will be a very interesting day because we'll see whether someone gives, someone pushes within the jury, whether the  judge prevails to keep them out [or] whether they're going to prevail on the judge and say, 'It's over,'" Pinales said.

Legal experts believe the jury is deadlocked on Tensing's use of force and whether he was justified in shooting Sam DuBose during a traffic stop in 2015.

Or it could be something else. Consider:

  • Are the jurors – two blacks and 10 whites - disputing points of law or testimony?
  • Or are some of them taking a stand and digging in their heels based on personal biases?

Dwight Patton of the Cincinnati Black United Front believes it's the latter.

"I suspect that it will be one or two holdout jurors holding out for acquittal — and I don’t know how they could justify coming to that conclusion in the face of the absolutely clear, irrefutable evidence," Patton told WCPO.

Patton thinks the body camera video proves that Tensing had no justifiable cause for shooting  Sam DuBose during a traffic stop in 2015.

"The Supreme Court has ruled [police officers] have more rights than the average citizen, but when the evidence, the clear evidence, is right in front of the jury and they fail to reach a verdict, it’s the human factor that’s the problem, not the technology, and how do you evolve the human factor?  I don’t know," Patton said.

As a matter of law, two Supreme Court decisions factor significantly in the Tensing-DuBose case. Both were cited by the prosecution's "use of force" expert, Scott Haug, during his testimony Nov. 4. The jury requested "a read-back" of the testimony by Haug and the defense expert on Thursday.

In Tennessee vs. Garner (1985), the justices ruled that a police officer may not use deadly force to stop a fleeing  suspect unless "the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others."

The decision in Graham vs. Connor (1998) established an objective standard for reasonable use of force. Applied in this case, that means considering:

  • Whether DuBose posed an immediate threat to Tensing or others;
  • Whether DuBose was actively resisting or attempting to evade arrest by flight;
  • The severity of the crime Tensing was addressing;
  • Whether Tensing played a role in creating the dangerous situation.

The Supreme Court has repeatedly said that the most important factor to consider  is the threat faced by the officer or others at the scene.

The overarching  principle is this:

"The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." It must allow " for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain and rapidly evolving—about the amount of force that is necessary in a particular situation. The test of reasonableness is not capable of precise definition or mechanical application."

So the jurors, by law and their oath, are obligated to apply these standards to what they saw in Tensing's body camera video and heard in testimony. That includes the deputy coroner, the three witnesses at the scene and Tensing himself.

Another local defense attorney,  Carl Lewis, thinks the Tensing jury is "hopelessly deadlocked."

"On a case of this magnitude, I would be shocked if they came back with a verdict," Lewis said.  "I think they're hung."

If Shanahan decides the jury can't reach a unanimous verdict to acquit Tensing or convict him on one of the charges  - murder or voluntary manslaughter, she would be expected to declare a mistrial. She also has the option of dismissing the charges.

Prosecutor Joe Deters could drop the charges, but that's not likely.

Most likely, the case would be retried with a new jury.

For more Tensing trial coverage, go to wcpo.com/TensingTrial