CINCINNATI - Prosecutor Joe Deters said he will not put a white former University of Cincinnati police officer on trial for a third time in the killing of a black motorist, but that doesn’t mean Ray Tensing is off the hook yet.
Deters said the Justice Department has asked to review the case for potential civil rights violations, and his office has turned over all his case files to the U.S. Attorney's office.
"I think there's a much better chance for conviction (by the U.S. attorney) than for us on the evidentiary rules that we got," Deters said. Deters said the feds will be able to consider evidence of racial bias by Tensing that Judge Leslie Ghiz banned for the second trial.
Deters said jurors from the first two Tensing trials - black and white - made it clear to him that he could not get a conviction. The former University of Cincinnati officer shot and killed Sam DuBose during a traffic stop in Mount Auburn one day short of two years ago.
Deters said he thought the prosecution made a strong case on the murder and voluntary manslaughter charges but they could not break though biases - both racial and pro-police - among the jurors.
"The division in this country is profound," Deters said, referring to blacks and whites and mentioning the O.J. Simpson trial two decades ago. There were two black jurors and 10 white jurors in the first Tensing trial. The second trial had nine white jurors and three black jurors.
"Each person said there was no way we could get a conviction," Deters said. "I don't like it. My opinion of the case hasn't changed. But I have an ethical duty not to try him again if I don't think we could be successful at trial.
"I'm extremely disappointed professionally and personally. My heart goes out to the DuBose family," Deters said.
Deters said he met with DuBose family members and told them of hjs decision before announcing it at a 1 p.m. news conference.
"They reacted the way I would have reacted if he (Sam DuBose) had been my brother," Deters said.
Tensing’s defense attorney told sister station WCPO-TV Monday that he expected Deters to turn the case over to the Justice Department for a federal investigation. The DOJ has investigated several police shootings in recent years, including the deaths of Michael Brown in Ferguson, Missouri; John Caldwell III in a Walmart in Beavercreek, Ohio; Alton Sterling in Baton Rouge, Louisiana, and Walter Scott in North Charleston, S.C. Those killings led to Black Lives Matter protests around the nation.
The feds have to meet a higher standard of proof than in a state court and they did not file charges in the first three cases, but they got a guilty plea in the fourth case. After a hung jury, the DOJ took over the Walter Scott shooting case and got officer Michael Slager to take a plea deal that could send him to prison for 25 years. Slager shot Scott, 50, in the back five times as he ran away from a traffic stop for a broken tail light. Slager was charged with murder, but 11 white jurors and one black juror couldn’t reach a verdict.
To prove a Fourth Amendment violation, the government would have to disprove Tensing’s cliam that he had reason to believe his life was in danger and show he acted willfully to kill DuBose, or that he knew his actions were unreasonable and took them anyway.
“This is one of the highest standards of intent imposed by law,” the U.S. Attorney’s office said this month in announcing it would not pursue federal charges in the Caldwell case. “Mistake, misperception, negligence, necessity, or poor judgment are not sufficient to establish a federal criminal civil rights violation."
Our local U.S. Attorney’s office said it wouldn’t comment on the Tensing case until the conclusion of the trial, so maybe we’ll hear more about that soon.
Deters had promised to “do what I think is right” before ultimately announcing Tuesday afternoon that he would not retry Tensing for shooting DuBose after Tensing stopped him for a missing front license plate on July 19, 2015.
Deters had said he would consider “the likelihood of success at trial” and “weigh the jury count” in arriving at his decision. Given that Tensing’s previous trials ended in hung juries and mistrials – and that the second jury came closer to acquitting Tensing than convicting him, according to the defense – it would seem that the prosecutor faced an even greater challenge the third time around.
Deters clearly wanted to abide by the wishes of the DuBose family, which demanded another trial. And the prosecutor was under increased pressure – in the form of demonstrations and outcries from the community - to try Tensing again.
But Deters would have needed a lot of things to go his way to win a conviction.
For one thing, Deters would have wanted to get damaging evidence against Tensing readmitted in the third trial. Ghiz banned the Confederate flag T-shirt that Tensing wore under his uniform when he shot DuBose that early Sunday evening in Mount Auburn. Ghiz also barred data from UC police that showed Tensing issued 83.5 percent of his tickets to minority drivers. Deters complained that evidence of Tensing's prior good acts were allowed in the second trial, but prior bad acts were barred.
"If the defense brought up character, we should have been able to show that as well," Deters said after the trial. "It was incredibly prejudicial."
Terina Allen, DuBose's older sister, was even more critical of the judge.
“Judge Ghiz was not the right judge for this case. I wondered if she was wearing a Confederate flag T-shirt under her robe,” Allen said. Allen also complained that the jury – nine white jurors and three black jurors – was racially biased.
The timing of the Tensing case -- coming in the midst of multiple hotly-debated police shootings around the country and accusations of racial profiling -- added to racial tension here. Some of that lingers from the 2001 fatal shooting of Timothy Thomas by Cincinnati police officer Stephen Roach and the three nights of rioting that followed.
DuBose family members said they were outraged by the second hung jury but asked demonstrations to stay peaceful, and they have been.
Tensing and his family have not spoken to the media during the trials, and public support for them has not been as obvious. Two weeks ago, a petition asking Deters to drop the case was posted on change.org. It had 5,500 signatures as of Tuesday morning.
Deters might have hoped the next judge would give more consideration to a request by both sides for a change of venue, which could have changed the dynamics in the jury room. But based on the first two trials, it figured to be hard for the prosecution to get any jury anywhere to see things its way.
After the second trial ended June 23, Tensing’s attorney, Stew Mathews, said eight of the 12 jurors had voted to acquit Tensing of murder and seven of the 12 had voted to acquit him of voluntary manslaughter. That’s not exactly how the foreperson described it in a note telling Ghiz they were deadlocked.
The jury note said it was "almost evenly split regarding our vote toward the final verdict," Ghiz read in court.
Either way, though, that represented a sea change from the first trial and left a big divide for third-trial prosecutors to overcome. After the first trial last November, Deters said that jury had four votes for murder, four for voluntary manslaughter and four for acquittal.
In the end, Deters also knew something we don’t know - the second jury’s two questions to Ghiz during deliberations. Ghiz sealed those questions so only she, the prosecution, the defense and the court reporter know what they might have indicated about the jurors’ persuasion at the time.
Deters said he didn’t have the option to go back to a grand jury and ask for an indictment for reckless homicide or another lesser charge on which a jury might be more willing to convict a police officer. Assistant prosecutor Seth Tieger asked Ghiz during the second trial to add reckless homicide to the jury instructions, but the judge refused, saying the evidence did not match a reckless homicide charge.
Tensing’s body camera video of the traffic stop and the shooting was the focus of both trials. There was no disputing that Tensing shot DuBose. There was only one issue, Deters said:
“Was this justified?”
Both sides used expert video analysts to make their case. Tensing said his arm was caught inside DuBose’s car after he reached in to try to take the keys out of the ignition. He said DuBose “mashed” the accelerator to drive away from the stop and the car started to drag him. Tensing said he was falling and he feared that he could die if he was run over by DuBose’s car. So, Tensing said, he aimed at the only target he could see through the driver’s window – DuBose’s head - and fired one shot.
“I didn’t shoot to kill him. I didn’t shoot to wound him. I shot to stop the threat,” Tensing insisted on the witness stand. He repeating several times that he followed his training to “stop the threat.”
As he did last November, Tensing’s attorney argued that DuBose used his car as a weapon against the officer. This time, Matthews got support from Cincinnati Police Sgt. Shannon Heine, who was a homicide detective and conducted the formal police interview of Tensing after the shooting.
Heine was called to testify for the prosecution, but ended up helping the defense case in the second trial when Mathews cross-examined her.
In a courtroom bombshell, Heine testified that she thought the shooting could be justified.
"Based on my time and training with internal investigations, I thought I was looking at an officer-involved-shooting where its actions may be determined to be justified based on the events surrounding the actual shooting," Heine testified.
Tieger’s partner, assistant prosecutor Stacey DeGraffenreid, walked the prosecution’s video expert though his frame-by-framed, timed-to-the millisecond breakdown of the body cam video. The prosecution claimed it showed that DuBose’s left arm wasn’t caught in the car, Tensing pulled his gun before the car moved and when it did, it only moved a few feet, and Tensing wasn’t falling or being dragged when he shot DuBose.
Ghiz’s jury instructions were explicit per Supreme Court rulings that give police a wide berth in use-of-force cases: jurors had to put themselves in the shoes of a “reasonable” police officer.
Tennessee vs. Garner in 1985 says an officer can’t use deadly force to prevent a suspect from fleeing unless the officer fears that the suspect might kill or seriously injure the officer or another person.
Graham vs. Connor in 1989 says an officer is not guilty of using excessive force if the force used could be seen as objectively reasonable and is not malicious or sadistic under the circumstances. The high court said reasonableness must be judged from the perspective of a reasonable officer on the scene, allowing for “the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.”
Here’s what that meant in the Tensing case:
If jurors thought Tensing was lying when he said he shot DuBose to “stop the threat”; if they believed he purposely shot DuBose in the head; if they thought, after watching the body-camera video, that Tensing didn’t have reason to fear for his life and that he acted contrary to what a reasonable officer would have, then the instructions said they should have voted to convict him of murder.
If they thought Tensing shot DuBose in a rage or passion provoked by DuBose, if they thought Tensing didn’t have reason to fear for his life and that he acted contrary to what a reasonable officer would have, they should have voted to convict him of voluntary manslaughter. In Ohio, the legal definition of voluntary manslaughter is killing “under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force.”
If jurors believed Tensing’s story that his arm was caught in DuBose’s car, he was being dragged and he was in fear of his life, and that he acted the way a reasonable officer would have, the instructions said they should have voted to acquit Tensing.
A voluntary manslaughter conviction carries a sentence of three to 11 years; murder is 15 years to life.
SEE WCPO's complete coverage at WCPO.com/TensingTrial