Ray Tensing's attorney told the judge overseeing his retrial that he believes Hamilton County Prosecutor Joe Deters spoke to a local media outlet, violating a gag order, "to facilitate" moving the case to another county.

"I would suggest this interview was done to facilitate that," attorney Stew Mathews told Judge Leslie Ghiz at a hearing Thursday in Hamilton County Common Pleas Court.

"I'm so upset about what has occurred, I can't see straight," he said.

At the hearing, Ghiz denied Mathews' request to dismiss the case, which he filed Wednesday, a few hours after an article detailing the interview with Deters' was posted on WCPO.com.

Ghiz found that what Deters said "was not egregious enough" to warrant dismissing the case.

"I do not believe dismissing this case is in the best interests of anybody," she said.

Ghiz, who once worked in Deters' office in the family law division, did issue a stern warning to the prosecution, saying if it happens again she will impose fines.

"It will be a significant amount of money," she said.

More:Retrial of Ray Tensing: Ask the editor

Deters was not at the hearing, but Assistant Prosecutor Mark Piepmeier apologized on Deters' behalf.

Piepmeier said Deters was not "in any way… trying to influence the jury."

He said the interview with Deters was supposed to be about how he decides whether to retry a case. And that's what he discussed – at least initially. But then he talked about how Ghiz could add lesser charges for the jury to consider.

Piepmeier didn't explain why Deters did that.

Tensing's first trial took place last fall and ended in a mistrial after the jury couldn't agree on a unanimous verdict. Afterward, Deters said he wanted to move the case to another county.

“It is our belief that the public attention that’s been focused on the Tensing case could, in fact, seep into the jury room,” he said at a November news conference. He mentioned Cleveland or Columbus as possible locations.

More:Judge in Ray Tensing's retrial restricts access 'out of an abundance of caution'

But a change of venue has never been granted in Hamilton County. It's an issue that typically is raised during jury selection, so Deters talking about it in November was unusual.

Ghiz wants the case to remain in the county.

Deters talked to WCPO about how Ghiz could, during the trial, consider lesser charges.

"Deters said he thinks she'll opt to do that," the article states.

Mathews told Ghiz that Deters has previously violated her gag order and "has engaged in ongoing... what I consider unethical, prosecutorial conduct."

Tensing, a former University of Cincinnati police officer, is charged with murder and voluntary manslaughter in the 2015 fatal shooting of Samuel DuBose as he tried to drive away from a traffic stop. The first trial ended with jurors unable to reach a unanimous verdict.

During the first trial, Judge Megan Shanahan did not ask the jury to consider other charges, such as reckless homicide. Under Ohio law, a judge can allow a jury to consider additional lesser charges if the judge believes the evidence supports it.

Judges rarely take that step, since it's the prosecutor's job to bring charges. If prosecutors believe a lesser offense should be included, they can seek an indictment on lesser charges.

Officials said 243 potential jurors reported to the courthouse Thursday to fill out questionnaires. Of those 63 were excused, leaving the pool at 180. Questioning of potential jurors in the courtroom is set for Tuesday.

Motion to dismiss Tensing retrial