Updated: Mistrial declared in Tensing retrial

A jury could not agree on a verdict in the Ray Tensing retrial. The racial tensions that have defined Sam DuBose's shooting were largely left outside the courtroom.

click to enlarge Ray Tensing in the Hamilton County Courthouse as attorneys gave their closing statements - Trial livefeed
Trial livefeed
Ray Tensing in the Hamilton County Courthouse as attorneys gave their closing statements

UPDATE: A jury June 23 at 2:15 pm told Judge Leslie Ghiz they were "almost evenly split" and could not reach a verdict. Ghiz declared a mistrial.

Prosecution and defense rested June 19 in the retrial of Ray Tensing, leaving the jury to decide one of the country’s highest-profile police shooting cases based on three seconds of blurry video and the ancient question of perception.

For prosecutors, the family of unarmed black motorist Samuel DuBose and the thousands of protesters who took to the streets following a hung jury in Tensing’s first trial back in November, it’s cut and dry: Former University of Cincinnati police officer Tensing shot DuBose July 19, 2015 after a traffic stop in Mount Auburn for no justifiable reason.

But Tensing’s defense, led by attorney Stew Mathews and backed by its own expert witnesses, attempted to show another side, holding tight to the assertion that Tensing feared for his life.

As protests mounted outside the Hamilton County Courthouse and tension swirled around cases of police-involved shootings, the jury — one black man, two black women, two white men and seven white women — tried to decide whether Tensing goes to jail for murder or manslaughter charges or if he would walk free. They deliberated in a city that is 43 percent black under the weight of its charged racial history — Cincinnati experienced days of civil unrest following the officer-involved shooting of unarmed black 19-year-old Timothy Thomas in 2001 — and current events elsewhere.

[Find continuing coverage of the Tensing retrial at citybeat.com.]

Last week, a jury acquitted Minneapolis-area police officer Jeronimo Yanez in the shooting death of Philando Castile, who was sitting in the passenger seat of his girlfriend’s car at the time. Yanez shot Castile, who had a concealed carry permit but did not produce his weapon, within 62 seconds of initiating the traffic stop. His acquittal has caused national outrage.

click to enlarge Audrey DuBose, other members of the DuBose family and activists stand outside the Hamilton County Courthouse after closing statements in the retrial of Ray Tensing - Nick Swartsell
Nick Swartsell
Audrey DuBose, other members of the DuBose family and activists stand outside the Hamilton County Courthouse after closing statements in the retrial of Ray Tensing

“Regardless of what this verdict is, we have to keep going forth,” Audrey DuBose, Sam’s mother, said outside the courthouse after closing statements concluded this morning. Dubose, along with local groups like faith-based nonprofit the AMOS Project and Black Lives Matter Cincinnati, have promised further action pushing for a conviction for Tensing. “What’s happened here is terrible,” she said. “Our eyes are not deceiving us. We’re standing up for what we believe is right.”

During his testimony June 16, Tensing led the courtroom through his version of events. He saw DuBose driving down Vine Street and noticed his Honda Accord didn’t have a front license plate on it. He ran DuBose’s back plate and found out it was registered to DeShonda Reid, who later turned out to be DuBose’s fiancé. Reid had a suspended license. Tensing pulled out from Hollister Street and began to follow DuBose, trying to pull him over just outside his patrol area on Thill Street. DuBose rolled slowly a few blocks, turning onto Rice Street, before pulling over.

Things escalated quickly. Tensing asked DuBose for his license, which DuBose did not produce. DuBose asked multiple times why he was being stopped and Tensing cited his missing front plate. Tensing then found a gin bottle full of air freshener, which DuBose handed over. Tensing asked DuBose to unbuckle his seat belt and attempted to open his car door. DuBose pulled the door closed again and started his car.

Tensing’s body camera footage recorded the officer shouting “Stop!” twice, then shooting DuBose in the head. But did Tensing have reason to feel he was in danger in those seconds? That’s what a jury must decide.

“I made a split-second decision,” Tensing said when he testified June 16. “Experts can break it down and analyze the video, but they weren’t in my mind when this happened.”

Tensing was mostly referring to the prosecution’s expert video analyst Grant Fredericks, who has spent 30 years in the field and has been an instructor for the FBI Academy. Fredericks broke down Tensing’s body camera footage frame by frame, as he did last trial, highlighting areas he says contradict Tensing on several of his claims.

According to Fredericks, Tensing drew his weapon before DuBose’s car began moving. He fired just a split-second after the car lurched forward a few feet. Further, Fredericks said the video doesn’t show Tensing’s hand caught up in the steering wheel or trapped anywhere else in the car, as he claimed.

"All I can say is within 0.4 seconds, Officer Tensing's hand is at the chest area, so there's no image of being pinned, and we have full continuity of his hand pretty much throughout the rest of it until a shot's fired," Fredericks testified June 12. "The moment he yells, 'Stop,' the vehicle is not in motion. He's not being dragged."

Hamilton County assistant prosecutors Stacey DeGraffenreid and Seth Tieger worked to hammer that point home throughout the trial and during their closing statements, noting the inconsistencies in Tensing’s story and questioning whether a "good old boys network" kicked in for Tensing when he was gently questioned by Cincinnati Police Sgt. Shannon Heine 48 hours after he shot DuBose. Tensing was given an opportunity to review his body camera footage before CPD investigators interviewed him.

Tensing did have to backtrack at least once during the retrial. He initially claimed that his arm was tangled in DuBose's steering wheel, but later said that he realized after watching the video that DuBose was pinning it to the wheel with his own hand. Prosecutors challenged that assertion as well, and also used Tensing’s changing perceptions to try and poke holes in the rest of his story.

“When you perceive something, what does that mean to you?,” Tieger asked Tensing about his mistaken perception regarding the steering wheel. “Are you telling the jury you may have been wrong? I’m not talking about perception. I’m talking about what actually happened.”

The defense had its own expert witnesses who worked to show that Tensing was dragged by DuBose’s car and had good reason to fear for his life.

Retired Columbus police officer and expert use of force witness James Scanlon said the video seemed to show that Tensing acted appropriately because he was being dragged. He also took issue with the prosecution’s assertion that Tensing should never have reached into DuBose’s car to try and turn it off, a move Tensing attempted seconds before shooting DuBose.

“My opinion is the actions of Officer Tensing were reasonable, justified and in accordance with recognized police practices,” Scanlon said.

Scanlon has testified in a number of police-involved shooting cases, including one in Lima in 2008 where an officer was acquitted in the fatal shooting death of an unarmed woman who was in the same building where police were undertaking a drug raid.

The defense also offered the testimony of Scott Roder, who founded Cleveland-based The Evidence Locker, a forensic animation company. Hamilton County Common Pleas Court Judge Leslie Ghiz declined to allow Roder’s animation of the DuBose shooting to be admitted as evidence, but did allow Roder to testify as a video analyst, despite the fact Roder admitted that’s not his area of expertise.

Roder challenged Frederick’s testimony that DuBose’s car wasn’t in motion when Tensing drew his gun, saying that the Honda Accord may have moved as much as 27 feet in the seconds before and after the shooting. He was at times openly combative with prosecutors, exhorting them to “use common sense” when they questioned his assertions. He also shrugged off questions about his credentials.

Last year, a federal judge blasted Roder for “assumptions conflated with data, all of which he is interpreting,” and described him as “not being an expert capable of asserting several of the opinions he offers. "When Hamilton County prosecutors asked whether he had ever testified as a video analyst, Roder admitted he hadn’t.

"Apparently, I am now," he responded, citing Ghiz’s ruling allowing him to testify as such.

Other skirmishes broke out around the role of race in the trial. Tieger tried to ask Tensing about statistics showing the officer wrote a higher proportion of tickets to black motorists than any other on the UCPD force. Department-wide, 62 percent of tickets went to black motorists. But Tensing wrote 81 percent of his tickets to black motorists the year he shot DuBose.

Mathews quickly objected to that — an objection Ghiz upheld. It wasn’t the first time Ghiz had worked to keep race out of the courtroom. In a pretrial hearing earlier this month, she ruled that a T-shirt prominently featuring a Confederate flag Tensing wore under his uniform the day he shot DuBose would not be admitted as evidence because it would be “too prejudicial” for the jury.

Even without questions of race, however, prosecutors pressed their case aggressively, trying to systematically prove Tensing could not have perceived a threat when he shot DuBose.

“There’s nothing to show you that he was in imminent harm 1.059 seconds before he fired his gun into Mr. DuBose’s head,” assistant prosecutor DeGraffenreid said in her closing arguments. “At that time, the defendant could not have perceived that he was in danger of harm. The vehicle was not in motion.”

Assistant prosecutor Tieger took a different, more emotional tack in his closing arguments, saying that Tensing lacked remorse for his actions.

“Those tears are not for Sam DuBose,” he said, referring to Tensing’s weeping when he testified. “They’re for himself. Because he feels sorry for himself.” ©

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