CINCINNATI -- The Ray Tensing retrial jury might have been allowed to consider a negligent homicide charge if the prosecution had asked the judge to include it, Judge Leslie Ghiz implied Thursday.
Ghiz speculated in a Bill Cunningham interview after the WLW Radio host asked what she would have done if the defense had asked for a bench trial -- without a jury -- leaving her to decide Tensing's guilt or innocence in the shooting of Sam DuBose.
"Really? It may have been negligent -- maybe -- but I don't know," Ghiz said. "I would have brought in negligent. That's what I'm saying.
"I may have included it if it was to the bench, but in a case like this where you have a jury, the parties are going to have to ask for that, and they didn't ask for negligent.
"If the defense claims self-defense, they cannot ask for lesser included," Ghiz said.
Ghiz said Tensing's admission that he deliberately shot DuBose during a 2015 traffic stop "tied the prosecution's hands," referring to prosecutor Joe Deters' decision to charge Tensing with murder and voluntary manslaughter.
Tensing's admission made it a purposeful shooting and that warranted the murder charge, Ghiz said.
"When the guy comes in and his statement is, 'I shot him' -- he's not pretending that he didn't do it and he didn't do it on purpose -- it's very difficult to find a lesser included [charge] in that," Ghiz said.
When Cunningham asked Ghiz if justice was done by a second hung jury, she replied: "I don't know. Justice was done because the jury made a decision and that decision was we can't reach a decision. So that's how I look at it."
Ghiz discussed her refusal to a prosecution request to include the lesser charge of reckless homicide once last month's trial was underway.
"I looked for it," she said. She explained that she had been tipped off by both sides that the request was coming but she saw no evidence to support it, even though prosecutors drove home the point that Tensing violated his training by putting his arm in DuBose's car. Tensing claimed he shot DuBose because his arm was struck in DuBose's car, DuBose started to drive off, and Tensing feared he would be run over.
"All the testimony said, 'Hey, there's no prohibition against putting your hand in the car.' You're just told to do it with your non-dominant hand, and we all do it," Ghiz said.
Ghiz said she also considered what might happen on appeal if she allowed a reckless homicide charge and Tensing were convicted.
That left the jury no compromise option in deciding the fate of a white officer for shooting an unarmed black motorist. As a result, when the nine white jurors and three black jurors voted along racial lines, as both sides said later, they couldn't come to a unanimous verdict – same as in the first trial last November. After a second hung jury, Deters dropped the charges against Tensing, saying jurors told prosecutors they would "never" get a conviction.
Both the hung jury and Deters' decision have enflamed already strained race relations in the community and led to public demonstrations and protests from the DuBose family. The U.S. Attorney's Office says it will investigate to determine whether the Justice Department should bring federal charges against Tensing for violating DuBose's civil rights.
Ghiz also talked about Tensing's Confederate flag T-shirt and the controversy over the testimony of Cincinnati police Sgt. Shannon Heine in the judge's first public comments outside of the courtroom since declaring a mistrial June 23.
Ghiz said she banned the T-shirt because "this was already a racially charged case, we didn't need to make it worse for the defendant" by allowing prejudicial evidence.
"Every defendant deserves a fair trial and every defendant who comes to my room - whether I like him or don't like him - they get a fair trial," Ghiz said.
She said if Tensing's T-shirt had a cross on it instead she wouldn't have admitted it.
"You don't have to prove motive to prove murder," she said.
The judge said that the T-shirt was admitted in the first trial, conducted by Judge Megan Shanahan, because "it was never objected to." She said defense attorney Stew Mathews didn't know when it was coming during testimony by a Cincinnati police crime scene investigator showing photos of evidence.
"It got put up so quickly he (Mathews) wasn't ready," Ghiz said. She said Mathews had to decide instantly whether "to draw more attention to it [by objecting] or just let it go."
So he let it go. Mathews objected to the T-shirt before the second trial, Ghiz said.
Ghiz answered Deters' claim that she allowed the defense to put DuBose's character on trial by saying she didn't let in his prior record and had "refused to allow other stuff the defense wanted brought in."
Cunningham mentioned DuBose's medical condition. "That's what I'm talking about," Ghiz said.
"The jury was well aware that this was racially charged. They're not stupid. They don't live on Mars," Ghiz said. "So there was no reason to add [the T-shirt] in because it's not fair to the defendant."
Heine's testimony prompted DuBose's family to demand the police chief investigate her. But Ghiz said she didn't think what Heine said - that Heine's interview with Tensing before the first trial led her to believe the shooting might be justified - was "that critical."
"I think the media made it sound like it was critical," Ghiz saie. "Keep in mind, I've not talked personally with jurors about 'why did you make this decision,' which I normally do. But they were ready to get out of here. We had to get them out without the press getting to them. It just wasn't the normal set of circumstances."
A police investigation found no wrongdoing by Heine.
Ghiz, who has two sons, said she hurt for both the DuBose and Tensing families.
"I don't know how they maintain their composure because I couldn't do it if I were sitting there, and I completely empathize with them," she said about the DuBose family. "But then I look over at the Tensing family and they're losing, too. Now, yes, their son is alive, but it's horrible to have to be on either side of this.
"I do have a lot of respect for the DuBose family because they were nothing but respectful in the courtroom in spite of what they may have said when this was all over. They were nothing but respectful to the Tensing family .. and I don't know how they did it. I don't know if i could have."
Ghiz said the jury and attorneys for both sides did "a great job." She also laughed at reports that she scolded the attorneys during a sidebar.
"Anybody who knows me knows that wasn't scolding," Ghiz said.
For complete trial coverage, visit wcpo.com/TensingTrial.