Tensing prosecutors may not be confident about conviction

Kevin Grasha | Cincinnati Enquirer

Judge Leslie Ghiz denied a request by prosecutors to allow the jury to consider a lesser charge of reckless homicide.

An expert called by the defense who analyzed Ray Tensing's body camera video said Sam DuBose's car began to accelerate before Tensing fired the fatal shot.

Police officers who saw Tensing after the incident said there were marks on the back of his uniform that could indicate he was dragged on the pavement.

After pursuing a murder case against former University of Cincinnati police officer Ray Tensing for nearly two years, prosecutors on Thursday asked the judge in his retrial to allow the jury to consider the lesser charge of reckless homicide.

Hamilton County Common Pleas Judge Leslie Ghiz denied the request, which legal experts say could signal that prosecutors are not confident they can get a conviction on the murder or voluntary manslaughter charges he faces.

Assistant Prosecutor Seth Tieger made the request Thursday morning, before Tensing’s attorney began calling witnesses. Tieger said he wanted to “prevent a miscarriage of justice” if the jury again deadlocks. The prosecution had rested its case Wednesday.

“I think it demonstrates that the prosecution is finally coming to realize that they over-indicted Mr. Tensing from the beginning,” said the county’s former prosecutor Mike Allen, who has been following the case.

Charging Tensing with murder in the fatal shooting of Sam DuBose as he tried to drive away from a traffic stop, Allen said, “was simply an overreaction on the part of the Hamilton County prosecutor.”

Reckless homicide is a third-degree felony, punishable by 9 months to three years in prison. Murder is punishable by 15 years to life in prison. The penalty for voluntary manslaughter is three to 11 years.

In an infamous news conference 10 days after the July 19, 2015 incident, Prosecutor Joe Deters called the shooting “the most asinine act I’ve ever seen a police officer make.” He said it was “without question a murder.”

Deters: I'm treating UC cop 'like a murderer' Hamilton County Prosecutor Joe Deters tells the media that University of Cincinnati police officer Ray Tensing will be charged with murder. Tensing shot and killed Samuel DuBose during a traffic stop July 19.

Deters was part of the prosecution team in the first trial, which ended in November 2016 with the jury unable to agree on a verdict. He did not ask for a lesser included charge during the first trial.

But last month, the day before more than 200 prospective jurors reported to the courthouse to fill out questionnaires, Deters talked to a WCPO reporter about how Ghiz could consider lesser charges. He granted the interview, despite a gag order Ghiz had imposed.

According to the story on WCPO.com, Deters “said he thinks she’ll opt to do that.”

Legal experts say it’s common for either side, even in a murder trial, to ask that the jury consider lesser charges.

There must be evidence to support it, however.

On Thursday, Ghiz said she hadn’t seen evidence to support reckless homicide. She pointed to Tensing’s own statements to investigators – that his “intention was to stop the threat” and “the only shot I could see…was a head shot.”

“Reckless homicide will not be included, based on the evidence presented so far,” she said.

Ghiz did say she would consider revisiting the issue after the defense finishes presenting its case.

Tensing is expected to take the stand Friday, which will be the seventh day of testimony. Closing arguments would likely happen Monday.

Attorney Mark Krumbein, who also has been following the case, said there has been no evidence presented so far that Tensing handled his gun in a reckless manner.

Krumbein noted there has been testimony Tensing had his finger on the gun’s “slide,” not on the trigger itself, when he pulled out the gun, indicating he followed his training. Tensing also said he shot DuBose intentionally.

“If it was intentional, it was self-defense or not,” Krumbein said. “It does not become reckless.”