CINCINNATI — Prosecutors and attorneys have some studying ahead as they prepare for a redo of the trial of a former University of Cincinnati police officer accused of murder in a racially charged shooting case.
With more than six months after the first trial to prepare for their courtroom rematch, there are potential advantages for both sides.
Ric Simmons, an Ohio State University law professor and a former prosecutor, said prosecutors and attorneys will analyze what seemed to work and what didn’t the first time.
“In that sense, both sides can learn from mistakes,” he said.
Hamilton County Prosecutor Joe Deters said prosecutors talked to jurors after the Nov. 12 mistrial and that a majority were ready to find Ray Tensing guilty on voluntary manslaughter and a few also voted to convict on murder. That persuaded Deters to try again on the same charges, although he said he needs to do better in presenting the case against Tensing.
“I think that there were ways I could have couched my arguments differently,” Deters said when announcing his decision.
Defense attorney Stewart Mathews also expects to have some changes.
“I think any time you do things twice, you do things differently,” Mathews said after a Dec. 12 pretrial hearing.
Simmons said the prosecution benefits from now having seen “the defense theory of the case” laid out in the first trial. Defense attorneys usually go into trials knowing more about how the state will try to prove its case because of pretrial evidence disclosure the defense is entitled to.
But Simmons added that second trials can be tougher on prosecution witnesses — defense attorneys can use their testimony from the first trial to point out contradictions as they try to “punch holes” in the state case to create reasonable doubt in jurors’ minds.
Jurors watched Tensing’s body camera video of his July 19, 2015, confrontation with Sam DuBose, but the two sides offered opposing testimony about how it should be interpreted. They probably will consider ways to enhance their interpretations. Tensing’s own appearance on the stand will also likely be deconstructed by both sides to develop different points to make if he testifies again.
The Tensing case is among fatal police shooting cases in three states headed toward retrials next year after jurors were unable to reach verdicts. The prosecutors are bucking a tendency by many jurors across the country to give police officers the benefit of the doubt on split-second decisions to shoot.
Judge Leslie Ghiz on Dec. 14 imposed a gag order in the Tensing case, citing “unprecedented and extensive media coverage” as she tries to limit pretrial publicity that could make it more difficult to seat a jury for the May 25 trial. She said she intends to keep the case in Hamilton County, although Deters said earlier he’d like to move it to another county to get jurors away from intense local attention that might have “seeped into the jury room” in the first trial.
In South Carolina, former North Charleston police officer Michael Slager, like Tensing, is a white officer charged with murder and voluntary manslaughter for the fatal shooting of a black motorist during a 2015 traffic stop.
In New Mexico, retired Albuquerque Detective Keith Sandy still faces a second-degree murder count in the shooting of a mentally disturbed homeless man during a 2014 standoff. A special prosecutor dropped charges against another former officer, Dominique Perez, following their October mistrial, but the incoming district attorney said recently he plans to make final decisions on whether to retry both men soon after he takes office next month.
Both Tensing and Slager testified they feared for their lives. Defense attorneys in the New Mexico case argued that the police shooting was justified after the homeless man, carrying two small knives, made a move toward a K-9 handler.
Philip Stinson, a Bowling Green (Ohio) State University criminologist who tracks police shooting cases, counts 78 officers charged with murder or manslaughter in on-duty shootings since the beginning of 2005. There have been 27 convictions on at least one charge so far, 14 in jury trials. Only one jury conviction was for murder. There have been 15 jury acquittals.