Hamilton County Prosecutor Joseph T. Deters will not only re-try the murder case against former University of Cincinnati Police officer Ray Tensing, but he will ask the judge for a change of venue.
The case needs to be moved from Hamilton County, Deters said, "because the public attention from the Tensing case could have seeped into the jury room."
Tensing was charged with murder and voluntary manslaughter in the shooting death of Sam DuBose during a July 2015 traffic stop. Tensing, a white officer who shot the unarmed black man, argued that he shot DuBose because he feared for his life.
A Hamilton County jury could not come to a verdict on either charge and Hamilton County Common Pleas Court Judge Megan Shanahan declared a mistrial.
Deters, in a press conference Tuesday morning at his office, said that at a hearing before Shanahan next Monday morning, he will tell the judge he plans to re-try Tensing on the same charges. And, he said, he will ask the judge to move the case to another city where they have better chance of seating a jury that can deal with the public outrage and publicity surrounding the case.
"The public attention focused on the Tensing case could have seeped into the jury room,'' Deters said. "We had a jury that would, for a period of time, would not come out of the jury room."
Deters said he has never heard of a Hamilton County case being moved to another venue – especially at the request of the prosecution.
"Cleveland or Columbus would be fine by me,'' Deters said. That would be up to the judge, if she were to agree to move Tensing's second trial.
Deters said he would like to have the trial held "no later than next spring."
"There are a lot of logistics that would have to be taken care of,'' Deters said.
Deters said he realizes that Tensing and his lawyer, Stew Mathews, don't want a retrial nor would likely want a change of venue.
"They don't want to move it,'' Deters said of the defense. "They got a hung jury here."
Mathews told WVXU Tuesday that he and his client could see the retrial decision coming.
"I'm not surprised; Ray is not surprised,'' Mathews said. "Disappointed, but not surprised."
Before the trial started, Mathews had asked for a change of venue which was denied by Hamilton County Common Pleas Court Judge Megan Shanahan. Tuesday, Mathews said he hadn't decided but "I don't think we are going to agree" to Deters' call for a change of venue.
"I think we could try this case 100 times and get the same results,'' Mathews said. "I'm not sure the venue makes that much difference."
Mathews has a motion before Shanahan asking for a judgment of acquittal - a pro forma filing in most criminal cases.
Deters said at his press conference he doesn't believe he could find a jury in Hamilton County that would not be intimidated by the uproar the DuBose shooting has caused.
Deters said at his press conference "we are going to try this before a jury who is not afraid of coming out of the jury room."
People in other cities around Ohio may have heard about the Tensing case, but they have not been inundated with it for over a year like people in Hamilton County, Deters said.
Donyetta Bailey of the Black Lawyers Association of Cincinnati disagrees with Deters' change of venue request. Speaking outside the prosecutor's offices, she said "I feel like it's a mistake to move the venue. It's unfair to the community. We have a personal stake in this case. The shooting happened here."
She adds, "I feel like the jury saying they felt pressured by the public, that's what our democratic system is all about.You should feel pressure by the public to actually reach a decision. Now, should you be threatened with your safety? Absolutely not. But to feel pressure from the public to actually reach a verdict and to do what's right for our community, that's your job."
Bailey also takes exception to Deters' notion that this case is only important locally. She says the case has drawn national attention.
Some DuBose family members are, in their words, "super excited" Ray Tensing will face another trial. Sam DuBose's sister, Terina Allen, says a mistrial was not a decision, and they want to get one. She also says Ray Tensing should not be walking free.
"The same law that allowed Tensing to stop my brother for not having a front license plate, is the same law that should put Tensing in jail for shooting him in the head when he wasn't doing anything to him," says Allen. "I just want the laws to apply equally."
Allen was asked about moving the second trial to another part of the state. She says she and other family members will travel wherever they need to in order to get justice for Sam.
Mathews has already filed a motion with Shanahan asking that Tensing be acquitted of both charges. That motion is likely to be heard in the hearing in Shanahan's courtroom Monday morning.
Deters does not have to go back to a grand jury for a new indictment because he is not changing the original charges.
Deters said that "I fault myself" for the mistrial; and praised his two assistant prosecutors who worked with him.