Kevin Grasha, Sharon Coolidge, Chris Graves, and Mark Curnutte

Cincinnati

In the wake of a mistrial in the case against Ray Tensing, one question stands out: Will there be another trial?

It’s a question only Hamilton County Prosecutor Joe Deters can answer, and it’s far from an easy one.

The family of Sam DuBose, who was fatally shot by the former University of Cincinnati police officer during a traffic stop, is demanding the same charges -- murder and voluntary manslaughter -- be leveled again in front of a new jury. Leaders in the black community and others say they want the same. Hundreds marched through the city’s streets Saturday, calling for justice and an immediate retrial.

Others say Deters overcharged Tensing – that it isn’t, and never was, a murder case. Rather, they say Deters should have charged the 26-year-old officer with something lesser, such as negligent homicide.

Deters told The Enquirer Saturday he will make the decision without outside influences.

“In my job, you make decisions that affect people’s lives almost every day, and all you can do is what you think is right,” he said.

Attorney Al Gerhardstein, who helped the DuBose family reach a settlement with UC, said Deters should re-try the case and do so quickly.

“Justice in this country comes with the ultimate responsibility determined by a criminal court,” Gerhardstein said.

Deters said he will meet with staff and determine the likelihood of success in a second trial.

“I still think it’s murder; I think that we proved it,” Deters said. “We’ll look at what we did and make an assessment.”

Deters’ options include re-trying Tensing on the same murder and voluntary manslaughter charges. He also could take the case to another grand jury and seek lesser charges, such as reckless homicide or negligent homicide. Or he could drop the case entirely.

After a two-week trial in Hamilton County Common Pleas Court, including more than 25 hours of deliberations, jurors voted eight to four in favor of a voluntary manslaughter conviction, Deters said.

At least three jurors were willing to find Tensing, a white man, guilty of the murder in the killing of DuBose, a black motorist.

Deters said he will make his decision by Nov. 28, when Tensing’s next court hearing is scheduled.

During the trial, new details emerged about Tensing, including that he was wearing a T-shirt under his police uniform depicting the Confederate flag. An image of that Great Smoky Mountains National Park T-shirt spread across social media and sparked outrage nationally.

Philip Stinson, an associate professor of criminology at Bowling Green State University, said the pressure Deters faces will be intense.

"Are they willing to risk going to trial again? Ray Tensing has his liberty to worry about, and the prosecution has the public demands and the societal demands to worry about, not to mention the raw cost of a retrial," he said.

Deters said if there is a re-trial, the total cost to the county would be more than $1 million.

Local leaders who know Deters, the longest-serving prosecutor in county history, said politics won’t play into his decision.

“He brought this case despite pressure from his friends in law enforcement not to do it,” said Alex Triantafilou, county Republican Party chairman. “He’s going to do the right thing.”

Black Lives Matter finds allies to protest Tensing decision

Mike Allen, the county’s former prosecutor who pursued cases against three Cincinnati police officers during his tenure, acknowledged that the community’s feelings can play a role. He said legal considerations are a prosecutor’s main focus.

“Your main concern as a prosecutor is being able to prove beyond a reasonable doubt what you indict,” said Allen, who said Deters charged Tensing with the wrong crimes.

Allen said Deters likely will meet with the assistant prosecutors who handled the trial with him, Rick Gibson and Mark Piepmeier, and other senior staff members before making a decision.

“Being the elected prosecutor, he has to make the ultimate call,” Allen said.

City Councilwoman Yvette Simpson -- a mayoral candidate who, as part of a black lawyer’s association, pressed for transparency in the case -- said Deters absolutely should feel pressure.

“We’re advocating for a re-trial,” Simpson said. “He is representing the community, and this is probably one of the most important cases we’ll see.”

The community deserves an answer, she said.

Tensing’s attorney, Stew Mathews, told The Enquirer he hopes the case doesn’t go to a second trial.

“I think if it’s re-tried, you probably end up with a similar result,” Mathews said.

City leaders grapple with Tensing mistrial

Saturday morning, after jurors had deliberated 25 hours over four days, Judge Megan Shanahan announced they could not reach a unanimous decision on either charge. Shanahan then declared a mistrial.

Two female jurors -- one white, one black -- openly wept in the courtroom as the judge made the announcement.

Tensing remains free on a $1 million bond. Due to security concerns, he left the courtroom through a door that was out of view of the media. His father and several family members walked out of the courtroom and down a flight of stairs without responding to questions.

Many of DuBose's family members were not in the courtroom when the mistrial was announced just after 10 a.m. DaShonda Reid, DuBose’s fiancée, arrived moments later. On the courthouse steps, as a peaceful demonstration was underway nearby, she hugged Teaila Williamson, one of DuBose’s daughters.

“The defense won a small victory, but the war has not been won,” Reid said.

The Rev. Troy Jackson, executive director of Amos Project, part of the Black Lives Matter-led coalition, watched outside the courthouse on a live feed with demonstrators.

“If 12 people in Hamilton County cannot come to an agreement on a murder charge in this case, is it ever going to be possible to convict a police officer?” Jackson said.

Later Saturday, DuBose’s sister, Terina Allen, told The Enquirer the family was devastated. A tearful Allen, who had to stop repeatedly to regain her composure, said she, her mother and the rest of her family were having a difficult time understanding the jury's inability to agree on a verdict.

“They said Sam didn't matter,” Allen said. “This is not acceptable... There is no justice in this.”

Tensing killed DuBose with a gunshot to the head during a traffic stop in Mount Auburn on July 15, 2015.

The case came down to whether Tensing feared for his life when DuBose tried to drive away from the traffic stop for not having a front license plate.

Tensing said he was dragged by DuBose’s car and said it was his "perception" his life was in danger.

Deters called Tensing’s statements “nonsensical” and centered his case on Tensing’s body camera video, which captured the shooting. An analysis of that video showed Tensing pulled out his gun and aimed it at DuBose’s head seconds before the car began moving. The car had moved up to few feet when the shot was fired, according to expert testimony.

Mathews on Saturday said he disagrees with the video analysis of an incident that unfolded less than three seconds. To him, the video shows DuBose could have seriously injured or killed Tensing by trying to drive away.

Ray Tensing mistrial: Possible next steps for Joe Deters

“The camera does not show everything Tensing saw or felt in his gut,” he said.

Cincinnati Mayor John Cranley said at a Saturday news conference he hopes Deters “continues to find a way to bring justice to this case.”

The last time a trial ended in a hung jury related to an officer-involved shooting in Hamilton County was in 2001. In that case, jurors acquitted Robert "Blaine" Jorg on a misdemeanor assault charge in the death of Roger Owensby, Jr. But the jury in that case deadlocked over the felony charge of involuntary manslaughter.

Mike Allen, who was prosecutor at that time, never re-tried that case. It was the first time a Cincinnati officer was ever indicted in the death of a suspect.

Mike Allen also oversaw the case against former Cincinnati police officer Stephen Roach, who was charged with negligent homicide in the 2001 fatal shooting of Timothy Thomas, an unarmed black man whose death spawned riots in the Over-the-Rhine neighborhood. That case went to trial without a jury and ended in an acquittal.