The fate of former UC Police Officer Ray Tensing is now in the hands of a Hamilton County Jury. Closing arguments concluded Wednesday morning in the trial of Tensing for the shooting death of motorist Sam DuBose during a 2015 traffic stop.
Tensing is charged with murder and voluntary manslaughter.
Under Ohio law, for a murder charge, the prosecution has to prove Tensing purposely caused Sam DuBose's death. For voluntary manslaughter, the law says, "No person, while 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, shall knowingly cause the death of another."
Self-defense has to be proven by a preponderance of the evidence (a burden of proof that is less than reasonable doubt). The defense has to show reasonable fear of great bodily harm or death and that the force used was reasonable. "Ohio is the only state that requires a burden of proof for self-defense," says criminal defense attorney Mark Krumbein.
Prosecution Closing Arguments
During closing arguments, Assistant Prosecutor Mark Piepmeier stated Tensing purposefully caused DuBose's death. "He purposely fired the gun which caused the death, he's guilty of murder."
He said Tensing's defense is based on the idea that he was dragged by DuBose's car. He said the shooting would be justified if Tensing was dragged and not justified if he wasn't. To that point, he said, none of the evidence supports Tensing's claim that he was dragged. Piepmeier said to jurors that, other than some dirt and some little marks on his clothing and boots, there's no evidence of being dragged.
Next he touched on witness statements and the body camera footage, concluding, "the physical evidence, does it support him being dragged? Absolutely not. Do the eyewitnesses? Absolutely not."
Piepmeier suggested the most damning evidence came from Chief Deputy Coroner Dr. Karen Looman who testified about the trajectory of the bullet. She said the bullet entered above DuBose's left ear and exited midway down beside his right ear. Piepmeier got down on the ground while demonstrating how Tensing said he was falling as he fired. His point being that under Tensing's description of the incident, the bullet would not have had a downward trajectory.
Prosecutor Joe Deters also latched onto this during his rebuttal calling Tensing's explanation that his long arms are the cause of the angle "ludicrous."
Throughout his testimony Tuesday, Tensing used the word "perception" to explain why he fired. He said he perceived he was being dragged and would be run over. Deters wasn't having that Tuesday and he wanted nothing of it again Wednesday. "So you moved to your Plan B. We're dealing with 'perception.' 'I was dragged. I perceived I was being dragged.' Give me a break."
Defense Closing Arguments
Defense attorney Stew Mathews presented a starkly different picture.
"Most of what (Piepmeier) said I do not agree with and I don't think most of the evidence supports most of what he just said."
He sought to drive home what he's argued throughout, that Tensing fired because he believed his life was in jeopardy so the shooting was justified.
Mathews encouraged jurors to put themselves in Tensing's shoes. "Ask yourselves, 'how would I react?' Was Ray Tensing's response reasonable to being dragged?"
Mathews began his closing argument by addressing Tensing's confederate flag undershirt. He reiterated that the shirt and the flag meant nothing to Tensing, it was just what he grabbed out of the laundry. Then he suggested the shirt and Tensing's African-American citation record - which the prosecution brought up Tuesday - were merely meant to put his client in a bad light. "They're trying to portray Ray Tensing as a racist. That has nothing to do with this case. This case is between what happened between Sam DuBose and Ray Tensing."
Mathews says the videos of Tensing's prior traffic stops that day show his client is anything but racist. "Every one of the videos showed that Ray Tensing was always polite, courteous, even-tempered, even nice to the people he stopped."
He concluded his remarks saying, "I suggest that the evidence in this case, ladies and gentlemen, doesn't even come close to proving that Ray Tensing is guilty of either murder of voluntary manslaughter, and I would ask you to return to this room with a verdict of not guilty as to each one of those charges."