The prosecution in the Ray Tensing retrial began Thursday by asking the judge to include the lesser charge of reckless homicide.
"This is the second trial that we've been through this," said Assistant Prosecutor Seth Tieger. "The first jury was unable to reach a verdict, and in order to prevent a miscarriage of justice where there could be a second hung jury, the state feels it is important that the court give the lesser included offense of reckless homicide."
Defense attorney Stew Mathews argued the charge doesn't fit because there's no evidence Tensing didn't intentionally shoot Sam DuBose.
"The prosecution team, at this point, is attempting to offer the jury every opportunity to reach a compromise verdict in this matter, which is not something I believe courts do encourage or should encourage," Mathews said.
Hamilton County Judge Leslie Ghiz ruled quickly on the request saying she knew this might be coming and so she had been listening carefully to the testimony with the idea in mind.
Ghiz declined to add the lesser charge saying she doesn't think what happened meets the criteria for reckless homicide. She added that the prosecution could have added the lesser charge before the trial and chose not to; and that it's not her job to make the change now.
Ray Tensing himself will take the stand Friday.
Defense Video Expert
The defense's first witness was Scott Roder, a video analyst who makes forensic animations. He testified that his analysis of Tensing's body camera video shows DuBose's car moved five to seven feet before the shot was fired. He also said the car began moving 2.4 seconds before the shot. This contradicts the prosecution's expert who testified the car was in motion just .178 seconds before the shot.
Based on his calculations, he says DuBose's car hit the guard rail four seconds after the shot and must have been going 24 miles per hour.
When the prosecution questioned his timing and methods, Roder argued a few milliseconds either way doesn't make much difference.
Roder's testimony centered on the theme of common sense. One must look at the totality of the evidence, not just the video, Roder said. He repeatedly said common sense proves the car was moving into Tensing, who was tethered to the car and falling backward before the shot.
When asked by the prosecution to demonstrate how he determined when DuBose's car began moving, Roder responded he knows because the video shows Tensing moving closer to DuBose's vehicle. He dismissed the idea that Tensing moved himself closer to the car because "the officer is already tethered to the car because he's already in the car at that point."
The exchange between Roder and assistant prosecutor Stacey DeGraffenreid was largely contentious. Courtroom observers report the jury seemed engaged, if not entertained, during the back and forth.
"I heard a lot about common sense and so forth," DeGraffenreid said at one point. "But what scientific things did you put to this video to tell us the things you're telling us today?"
Later, Roder sniped at the prosecution attorney, saying, "This is what I do for a living. I don't have a side job. I don't have a paper route. This is my job. This is my profession. This is what I do."
The rest of the day's testimony included hearing from a Cincinnati police sergeant and three University of Cincinnati police officers. Each of the UC officers testified there was a directive from Chief Jason Goodrich to crack down on crime around campus.
Officer Jeffrey Van Pelt said officers were instructed to make traffic stops for any violation or legal reason they could.
"He had a philosophy," said Van Pelt. "He called it the no-fly zone, in the area. He didn't want any drugs, guns, people with warrants in the area around our students."
Richard Haas, Tensing's former supervisor, says he "never" had a problem with Tensing. "He was one of my lead officers."