CINCINNATI – What’s more compelling to the Ray Tensing jury: a magic show sprinkled with insults or a science lecture?
If the jury decides the case based on dueling testimonies from the two sides’ forensic video experts, we’ll know.
Jurors were treated to insults and verbal punches between assistant prosecutor Stacey DeGraffenreid and defense witness Scott Roder when defense testimony began in the retrial of the former University of Cincinnati officer on Thursday. They also heard a totally opposite interpretation of Tensing’s body camera video from a brash expert with a different approach to forensic video analysis.
Roder said he concluded that Sam DuBose restarted his car 2.4 seconds before Tensing shot him during that 2015 traffic stop. Roder said the car moved 5 to 7 feet before the shot with its engine revving. Once Tensing fired, the car accelerated with DuBose’s foot pressing the gas pedal to the floor, Roder said. The car moved forward and left, supporting Tensing’s stated fear that he was about to be run over.
Roder also testified that Tensing was trapped or had the perception of being trapped inside the car, and he was being dragged – all in support of Tensing’s claims and in conflict with the prosecution expert’s testimony to the contrary.
The courtroom sparring started right away with DeGraffenreid, in her first question, asking Roder, “I’m not exactly sure, so, you’re here to testify as what exactly?”
WATCH Roder's testimony below:
Roder, approved to testify as a forensic video expert by Judge Leslie Ghiz before the trial, let that pass but fired back a few moments later when DeGraffenreid challenged his credentials again.
“Are you a forensic video analyst expert?” she asked.
“Actually, I believe the judge qualified me as an expert,” he shot back.
“I know,” she said, “but I’m asking you, are you one?”
“I am now,“ he said sarcastically.
That went on throughout the cross-examination. If the jurors or trial watchers wondered how defense attorney Stew Mathews would try to counter the professorial prosecution video expert, Grant Fredericks, they quickly found out.
Roder brought an element to his presentation that Fredericks did not. Roder matched the body-camera audio with the video of what he called the crucial 7.57 seconds from the time Tensing reached to open DuBose’s car door to the instant he shot him.
Roder said that not analyzing the audio was a “fatal flaw” in Fredericks’ testimony. He dismissed Fredericks’ detailed presentation, saying video analysis is not “rocket science” and disparaged Fredericks’ breakdown to milliseconds.
“If I’m off a millisecond here or there, I’ll concede to that,” Roder said.
Roder said he and his employees at his California-based company, The Evidence Room, take a “common-sense” and “holistic” approach to their cases. They not only examined the body camera video, he said, they also focused on the environment and what Roder called ”real-time perception.” They consider the human factor and what you don't see on the video.
"Not any one still frame proves anything in this case, " Roder said.
Roder offered two photos of Tensing holding his gun – one before the shot, one after – and both with Tensing’s finger on the slide, not on the trigger. He said that showed Tensing using his training, in contrast to prosecution testimony that he didn’t when he reached into DuBose’s car to try to grab his keys.
Roder offered other empirical data. He said he and his team determined that Tensing moved 25 feet from the point where Tensing shot DuBose on Rice Street to the manhole cover where Tensing got up after falling. The prosecution said it was 20 to 24 feet. Roder said Tensing’s car hit the guardrail at 24 mph, based on the time it took to travel 121 feet to the point of impact with the mortally wounded DuBose behind the wheel. Roder said DuBose’s car traveled nearly 299 feet, 7 1/2 inches to the street corner at Rice and Valencia, where it struck a wall and stopped. He said that proved that the car, an old Honda Accord with lots of mechanical issues, had to accelerate up the 5 percent grade in the street.
But jurors might have had a hard-time understanding what Roder based his more important conclusions on.
Roder said his audio made it clear that Tensing’s car started to move and that the engine was revving before the shot was fired. But with shouting and other sounds coming from the car, that was up for debate. Roder didn’t specifically challenge Fredericks’ testimony that DuBose’s car didn’t move until .9 seconds before the shot. Fredericks pointed to a car and fence post that stayed stationary in the background until that point. Fredericks also said the car only moved a few feet in the time before the shot.
Roder showed six photos of Tensing positioned outside DuBose’s car door to make the case that DuBose’s car moved toward Tensing. He said the series showed the distance to a car in the background increasing as the space between the car and Tensing narrowed.
But Tensing also moved forward from the B post to the A post in the photo series, and DeGraffenreid challenged his other conclusion by suggesting that Tensing was moving closer to the car “and not the other way around.”
Roder said Tensing would have felt trapped inside the car because when he reached in for the keys, his arm would have been through the window up to his shoulder blade and he would have felt the driver’s-side mirror in the center of his back. He also contended that DuBose pressed Tensing's arm against the steering wheel.
"He's trying to hang on as the car is moving, accelerating," Roder said. "He's being dragged."
At Tensing's height (6-2), Roder said Tensing would have been "bent at the knees, butt toward the ground" when he unholstered his gun. "And then he shoots, falls backward and gets up 25 feet later."
But the video doesn’t show the mirror in touch with Tensing at all. And while motion blur distorts some of the camera view, Fredericks disputed that DuBose was restrained or hanging on the car - upright, falling or otherwise.
In fact, Roder's depiction contradicts testimony from the coroner's assistant, who said Tensing fired downward at DuBose.
Roder’s contention may have set the stage for Tensing’s testimony on Friday. In the first trial last November, Tensing moved away from his pretrial statement that he was trapped and being dragged to testifying that it was his “perception” that he was trapped and being dragged.
The first trial ended in a hung jury. Tensing faces charges of murder and voluntary manslaughter. The prosecution motioned Thursday to add a lesser included charge of reckless homicide, but Ghiz ruled against it.
For complete trial coverage, visit wcpo.com/TensingTrial.