CINCINNATI (AP) — Amid protests and other local pressure, an Ohio prosecutor is pondering whether to try a third time to get a conviction of a former police officer in a racially charged fatal shooting case.
Ray Tensing, a white man who at the time was an officer at the University of Cincinnati, killed Sam DuBose, 43, an unarmed black motorist, during a traffic stop that will have been two years ago on July 19. Two juries have hung on charges of murder and voluntary manslaughter.
Hamilton County Prosecutor Joe Deters expects to announce his decision in the next week or two. Meanwhile, Tensing attorney Stewart Mathews has filed a motion asking Judge Leslie Ghiz to acquit him. She scheduled a July 24 meeting.
After the first mistrial last November, Deters said he wanted a second trial because DuBose “was murdered. Period.” Deters said then a solid majority of jurors had supported a voluntary manslaughter conviction.
However, Mathews said in the aftermath of the second mistrial declared June 23 that majorities were for acquittal on both counts.
Deters told a WLW radio talk show Wednesday that the likelihood of gaining a conviction would be the key factor for him.
“I’m going to do what I think is right,” Deters said.
Some other factors that could weigh in Deters’ decision and some options besides simply dropping the case:
ODDS AGAINST CONVICTION
Juries across the United States have often shown reluctance to second-guess police officers for shootings. Tensing, now 27, testified he feared being killed by DuBose’s car when he tried to drive off.
While Tensing’s second trial was unfolding, juries in Minnesota and Wisconsin acquitted police officers for on-duty shootings. Just before it began in late May, an Oklahoma jury acquitted an officer in the fatal shooting of an unarmed black man.
Mathews and Deters clashed in recent days over accounts of earlier discussion of a plea deal. Mathews told WXIX-TV that Deters before the second trial offered a plea to reckless homicide, but it was rejected because Tensing “isn’t guilty of anything.”
Deters countered in his WLW radio interview that Mathews told him in an informal meeting that Tensing’s mother was “running the case” and wouldn’t agree to it. He said Tensing, fired in 2015 by UC, then rejected a plea during the trial.
Deters said he was willing to consider a plea to spare the families having to go through another trial, but when asked Wednesday if that is still a possibility, he replied: “I highly doubt it.”
Legal observers have said jurors would be more likely to convict on a lesser charge such as reckless homicide, which carries a maximum of five years for conviction. Murder carries a possible sentence of life in prison.
Deters said it’s too late to seek a new indictment in the case, although he said a third-trial judge could still potentially allow jurors to consider lesser charges. Ghiz refused prosecutors’ request to give jurors the option of reckless homicide during the second trial.
FAMILY, COMMUNITY PRESSURE
DuBose’s family demands another retrial. Civil rights groups are, too, and there have been demonstrations everywhere from outside Deters’ offices to outside a soccer game in the University of Cincinnati stadium.
The Cincinnati Enquirer editorialized June 28 that “the community deserves justice, whatever a jury ultimately determines that to be.”
Mike Allen, a Cincinnati defense attorney and former county prosecutor, said it’s important to consider the DuBose family’s wishes, and he noted that it’s an elected position.
“You do have to listen to the community, but at the end of the day, it’s his call,” said Allen, who said he would dismiss the case after the two trials.
SEEK TO MOVE NEW TRIAL
Deters said after the first mistrial he wanted to move the second trial away from intense local pressure, and Mathews also asked to move the trial just before it started. Ghiz said it was in everyone’s best interests to keep the case in Cincinnati.
The Enquirer editorialized for a change of venue, saying the two high-profile trials have “significantly diminished” chances of finding a fair and impartial jury in Cincinnati, and it would reduce safety concerns for jurors.
Ghiz might have added to arguments for moving a third trial in her June 30 order sealing transcripts on jurors’ questions. It described “a frenzy of such magnitude” around the case that both sides sought a change of venue, and she also wrote that “community unrest pulsates” through Cincinnati.
THIRD TRIALS RARE
Third trials in the same court after two hung juries are rare.
There was another high-profile case in recent years, in neighboring Warren County, that had three trials. But there was only one hung jury. Ryan Widmer’s first trial conviction for murder in the bathtub drowning of his wife was overturned on appeal; he was convicted in a third trial in 2011 after a jury deadlocked in his second.
Arkansas juries deadlocked twice on manslaughter charges against former officer Josh Hastings, who is white, in the 2012 shooting of 15-year-old Bobby Moore, who was black. Prosecutors decided against a third trial.
Deters or other officials could ask the Justice Department to investigate possible civil rights violations, which it has done in other police shooting cases over the years.
After a hung jury last year in a South Carolina court, former police officer Michael Slager pleaded guilty in May to a federal civil rights charge of using excessive force when he shot Walter Scott in the back after a 2015 traffic stop.
DuBose’s family has urged the Justice Department to pursue charges.
A spokeswoman for Benjamin Glassman, U.S. attorney for southern Ohio, said he was aware of the Tensing matter but declined to comment on whether federal authorities should get involved.
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