Cincinnati will once again see national attention for a racially charged police shooting when the retrial of a white University of Cincinnati police officer who shot a black unarmed motorist begins later this month.
As former UCPD officer Ray Tensing faces murder and manslaughter charges a second time for shooting Avondale resident Samuel DuBose July 19, 2015 after a traffic stop in Mount Auburn, his attorneys, Hamilton County prosecutors and racial justice activists here are all gearing up for the controversial case.
Hanging over the run-up to the proceedings, which will begin May 25, are questions about whether a jury will see the same evidence presented during Tensing’s first trial in November 2016.
Tensing’s attorneys, Stew Mathews and Gwen Callender, filed motions May 1 asking Hamilton County Common Pleas Court Judge Leslie Ghiz to bar testimony from an expert witness for the prosecution. They also introduced a new expert witness and animated recreations of the incident less than a month ago — a move Hamilton County prosecutors are protesting.
Video expert Grant Fredericks analyzed footage of the shooting from Tensing’s body camera for the prosecution during the first trial. His testimony was pivotal to the prosecution’s assertions that Tensing was not in danger when he shot DuBose. The officer initially claimed he was dragged by DuBose’s car before he shot the motorist once in the head.
“I was thinking, ‘Oh my gosh, I’m being dragged by this guy’s car,’ ” Tensing said in a videotaped statement made to Cincinnati police after the shooting.
But Frederick’s frame-by-frame analysis of the body camera footage seemed to show that Tensing was not in danger, was not being dragged and that he drew and pointed his weapon less than two seconds before DuBose’s car began moving.
Fredericks says his time leading the video forensics unit at the Vancouver Police Department and his work as an instructor at the Federal Bureau of Investigation Academy qualify him as an expert in video forensics. Those assertions went unchallenged in the first trial.
Now, however, Tensing’s attorneys say they’ve “been made aware of the existence of some information calling into question” Fredericks’ expertise, according to their filings.
Matthews and Callender are also asking Ghiz to bar from evidence presented to the jury a T-shirt featuring a Confederate flag Tensing was wearing when he shot DuBose. The revelation of that shirt was a bombshell in Tensing’s previous trial, calling forth condemnation from the DuBose family, Black Lives Matter Cincinnati, State Sen. Cecil Thomas and other leaders in the black community. While supporters of the flag say it simply represents Southern heritage, it’s also associated with slavery and has been taken up by white supremacist groups.
Tensing’s attorneys argue that the T-shirt, which promotes the Great Smoky Mountains, is irrelevant to the case and will only prejudice the jurors against their client.
“It contains nothing of evidentiary value, is irrelevant and highly inflammatory, and the danger of prejudicial impact substantially outweighs any probative value, if any, that it may have,” Tensing’s attorneys wrote in their court filing. “If the court finds that the T-shirt does have some probative value, that value is outweighed by its prejudicial effect, and therefore, in order to preserve defendant’s constitutionally guaranteed rights of due process, a fair trial and an impartial jury, any evidence related to the T-shirt should be excluded.”
Assistant Hamilton County Prosecutors Seth Tieger and Stacey Degraffenreid, meanwhile, are challenging a defense witness introduced last month who Tensing’s attorneys would like to weigh in on the body camera footage. Tieger and Degraffenreid took on the case after Hamilton County Prosecutor Joe Deters demurred from handling the retrial. Deters says he’ll be busy with the sentencing trial of convicted serial killer Anthony Kirkland, which will also take place this month.
Prosecutors are asking for a hearing on Scott Roder, who defense attorneys introduced to the court April 14 this year. That’s not enough time to vet the witness and examine his credentials and the relevance of his testimony, prosecutors say.
“The state would object to him testifying in any way before the jury in a retrial,” Tieger and Degraffenreid’s filing reads.
But Ghiz has already ruled out a delay in the trial and has set a hearing on the defense and prosecution’s filings for May 26, the day after jury selection begins.
“I’m going to make it very clear today, and I’ve made it clear to you in chambers, this trial is going forward on the 25th,” Ghiz told Tieger at a May 3 hearing after he asked for more time should the court approve Roder.
Tensing’s first trial ended Nov. 12 when a jury deadlocked on murder and manslaughter charges. The murder charges carry a penalty of 15 years to life in prison, and the manslaughter charge carries a penalty of up to 11 years in prison. After five days of testimony and about 25 hours of deliberating, eight jurors wanted Tensing convicted on manslaughter charges.
Three of those jurors originally wanted a murder conviction. Tensing’s jury was made up of six white men, four white women and two black women. The mistrial announcement sparked an organized march through downtown and Over-the-Rhine that included hundreds of protesters. That march was organized in part by Black Lives Matter Cincinnati. Organizers with the racial justice group say they’re watching the trial and will be outside the courthouse as it proceeds. About 50 people gathered for a May 7 cookout in memory of Sam DuBose, including his mother Audrey DuBose. Activists there questioned developments in the trial.
“A man can kill a man in cold blood with a Confederate flag T-shirt on, and it can be said it’s not a racial issue,” Black Lives Matter organizer Brian Taylor said at the event. “Even with the video — when it was slowed down frame by frame to show that the car wasn’t moving and that it wasn’t a weapon being used against Tensing — now they’re trying to dismiss the testimony of the video expert. It’s just thing after thing.” ©
This article appears in May 10-17, 2017.