Tensing Trial Ends In Mistrial; Street Protests Follow

Nov 12, 2016

The jury in the Ray Tensing murder trial has not been able to reach a verdict. The judge accepted their statement and declared a mistrial.

The former University of Cincinnati police officer was charged with murder and voluntary manslaughter for the 2015 shooting death of Sam DuBose during a traffic stop.

Now, the question is whether or not Hamilton County Prosecutor Joseph T. Deters will try again to get a conviction against Tensing. The answer to that question could come at a hearing to be held Nov. 28 in the courtroom of the trial judge, Megan Shanahan. 

A few hours after the mistrial was announced, a large crowd of members of Black Lives Matter and other supporters of the DuBose family gathered in front of the Hamilton County Courthouse for what was a loud but peaceful protest that blocked Main Street for a while. 

Hundreds of protestors left the Main Street side of the Courthouse and began marching through downtown Cincinnati. Eventually, they joined up with hundreds of people in Fountain Square who were protesting Tuesday's election of Donald Trump as president. 

The two groups, and many others who joined in along the way, marched through downtown. At one point, protestors seemed to be headed to Interstate 75 in order to shut it down, but a phalanx of Cincinnati police officers stopped that. 

The large group then moved on into Over-the-Rhine, gathering in Washington Park. 

Earlier in the day, Joe Deters said he was disappointed with the lack of a decision, but understood the jury's position.

"They worked very hard and deliberating for over 25 hours," Deters said. "You're asking 12 lay people to try to make sense of very complicated legal instructions. We're going to look at what we did in this trial and make an assessment. We have to decide whether or not we have a probability of success at trial if we would retry it."

Deters says he hopes to have the reassessment done by November 28.

Not long after the mistrial was declared, Mayor John Cranley held a press conference at City Hall with City Manager Harry Black and Police Chief Elliot Isaacs where the mayor extended his sympathies to the DuBose family and said it is "my belief still that Sam DuBose did not deserve to lose his life and I believe the just outcome would lead to accountability for that fact." 

"It is my hope that prosecutor Deters will retry the case," Cranley said. "I think it's important to point out that this case is not over."

"We respect everyone's rights to be upset," Cranley said. "This is America and people have the right of First Amendment free speech to protest and, candidly, there's a lot of reasons for people to be upset and we respect that." 

Cranley emphasized once, as he has in the past, this was not a Cincinnati police officer on trial. 

Black said that "we understand that this is an emotional situation. People will need to be able to express those emotions. It's all about constitutional rights about assembly and expression. We also have a responsibility to be sure we make it safe for people and property. But so far all of the protests have been peaceful." 

Isaac expressed his sympathy to the DuBose family and said he was disappointed in the outcome.

"I know there's many questions about what happens next. We continue to support the process," Isaac said. "We do have additional staffing personnel just to support the efforts. I know there will be people expressing their concerns and their disappointment in this as well. Our primary goal is just to ensure that everyone is safe and I think you'll see that's what we do."

Before the rally and march, Brian Taylor, a member of the Black Lives Matter steering committee, expressed anger and frustration at the result of the trial.

Brian Taylor
Credit Mark Heyne

"I think it's disgusting," Taylor said. 

Taylor said the "question everyone is asking, frankly, is what the hell does it take for a cop who kills a black man to get convicted?" 

"We're organizing a mobilization to put some demands on the city, including an immediate retrial,'' Taylor said. "But there's people at home who over the last two years have seen nothing but blatant injustice." 

"People are going to do what they feel they need to do to expel their anger,'' Taylor said. "This will reverberate throughout the city and people are all different in how they want or choose to respond." 

Shortly after the mistrial was announced, Beverly J. Davenport, interim president of the University of Cincinnati, issued a written statement saying the UC community wanted to "extend our thoughts and prayers to everyone affected by the tragic loss of Samuel DuBose." 

"We cannot and will not let the outcome of this trial divide us,'' Davenport said. "Our campus and our community will come together to listen, to heal and to partner for positive and lasting change." 

Throughout the trial, Tensing maintained he fired because he perceived he was being dragged and feared for his life.

"I was falling backwards as he's just got his foot mashed on the accelerator and I could feel his car turning left into me," Tensing said on the witness stand. "So, I'm falling backwards and I can feel myself falling lower and lower against his driver's door. I remember thinking, 'Oh my God… that he's going to run me over and he's going to kill me. He's actively dragging me with his car right now and my arm is stuck in there and I cannot get it out.'"

A forensic video analyst testifying for the prosecution said Sam DuBose's car began moving less than a second before the fatal shot. Grant Fredericks testified Tensing was not dragged by DuBose's car.

Fredericks went through Tensing's body camera video frame-by-frame showing it was about two seconds between when Tensing's right hand was on top of DuBose's car and when the shot occurred. He also said Tensing didn't begin falling until after the gun fired.

University of Cincinnati police officers David Lindenschmidt and Philip Kidd testified they saw Tensing standing by DuBose's car and heard tires squealing followed by a gun shot. However, they both said they did not see Tensing being dragged.

The two were patrolling together on the day of the incident and heard Tensing radio dispatch that he was pulling over a car that was "slow to stop." Both said they decided to go to Tensing's location because the phrase "slow to stop" indicates to officers that there may be something "off" about what's happening. Kidd agreed that the terminology would put him on heightened alert.

The prosecution's use-of-force expert, Consultant and Post Falls, Idaho Police Chief Scot Haug, said he doesn't believe the shooting was justified. He testified DuBose was being non-compliant but was not a threat to Tensing.

"After considering the totality of the circumstances and all of the evidence that I discussed, including the case law, it is my opinion that Officer Tensing acted unreasonably in his use of force in this situation," said Haug.

A use-of-force expert testified for the defense as well. James Scanlon, a police trainer, said he reached out to the defense after hearing about the shooting. He testified he did so because he feels strongly that Tensing is innocent and the shooting was justified. Scanlon added he believes Tensing feared for his life and his actions were in line with police training and tactics. 

Scanlon made his report based on watching body camera video of the incident. On cross examination, Assistant Prosecutor Rick Gibson repeatedly pointed out Scanlon is not a forensic video expert but rather a lay person, just like the jurors.