What's holding up the jury in the Ray Tensing murder trial?

Posted at 6:40 AM, Nov 11, 2016
and last updated 2016-11-11 12:07:03-05

What's holding up the jury in the Ray Tensing murder trial?

Judging from the jury's request Thursday afternoon, it might be the claim by the former University of Cincinnati officer that he feared for his life, as well as testimony by the defense's "use of force" witness that Tensing had justifiable cause to shoot Sam DuBose during a 2015 traffic stop.

Rodney Harris, an attorney with the public defender's office, said he thinks the jurors have already made up their minds about one thing.

"It makes me think they've already decided whether it was purposeful murder, they're just trying to figure out if it was justified," Harris told WCPO's Chris Riva Friday morning.

As WCPO's Tom McKee pointed out, most juries give leeway to the officer in such cases. That's why in the few cases officers even face charges, they are rarely convicted.

On its second day of deliberations, the jury of two blacks and 10 whites requested a "read back" of testimony by the "use of force" experts for both sides.

RELATED: Judge sends families home Thursday without a verdict.

"You don't know who they'll find to be credible," Harris said. "Just overall, I thought that the state's expert was really strong. I thought the one thing they really picked on the defense expert is he's never testified for the other side,"  meaning only for the police and never against it.

Harris said he believes the state proved murder in its case, but he also understands why the jury wants to consider self-defense.

"When you talk about a person who's actually pointed a gun at someone's head, fired, and then when they're interviewed they say that's exactly what I intended to do - 'I was looking to stop the threat,' [that] is essentially purposeful murder in my eyes," Harris said. "The only question for me …  you do have allegations of a car moving. it's up to the jury whether they believe it or not. A car can be used as a weapon. There are no 'ands, ifs or buts' about that."

It's the defense's responsibility to prove self-defense, Harris noted.

"So with that, I can see why they're fighting and arguing over whether they've proved that affirmative defense … I would guess that's where the argument is at this point," Harris said.

Each sides' witnesses testified that they drew different conclusions from Tensing's body camera video and each side's attorneys claimed the video supported its case. There is no dispute that Tensing shot DuBose. The dispute is over whether he had justifiable cause.

WATCH the body camera video here:

To determine that, the jury has to decide if Tensing's action met the standard for justification for the use of deadly force, according to defense attorney Stew Mathews. By law, that comes down to a test of reasonableness in Tensing's actions, Mathews said in closing arguments. He said the jury must ask: What would a reasonable officer have done in this situation and at that moment?

Mathews said the four tests of reasonableness are:

  • The severity of the crime the officer was addressing;
  • Whether DuBose posed an immediate threat to Tensing or others;
  • Whether DuBose was actively resisting or attempting to evade arrest by flight;
  • Whether Tensing played a role in creating the dangerous situation.

The defense's use of force expert, James Scanlon, said his analysis of Tensing's body-camera video confirmed what Tensing told homicide investigators two days acfter the shooting: Tensing sad his arm was trapped in DuBose's car; he was being dragged as DuBose "mashed" the accelerator and pulled way from the stop; the movement of the car violently twisted Tensing; he lost his balance and started to fall; Tensing fired in self-defense.

"I would be in fear of my life if I was in that situation," said Scanlon, a 33-year veteran of the Columbus police force and now a police trainer. "My opinion is the actions of Ray Tensing were justified, reasonable and consistent with all police tactics and training."

The prosecution's expert, Scott Haug, an Idaho police chief and police trainer, testified that Tensing "acted irresponsibly" and his use of force was "not justified."

According to Haug, DuBose was never dragged and did not pose a threat to Tensing; Tensing violated proper police procedure when he reached into DuBose's car, and Tensing overreacted to minor traffic violation.

In addition, Haug pointed out that Tensing had other options to end the confrontation peacefully. Instead of  endlessly pressing DuBose for his driver's license, he could have done what DuBose suggested - go back to his police car and run his Social Security number. Tensing testified he didn't do that because DuBose would have driven off,

"There are several things he could have done. One was to take a step back and have the officers who had just arrived to pursue him," Haug said.

Besides the "use of force" testimony, the prosecution said its video analysis, broken down frame-by-frame to milliseconds by a true video forensic expert, refutes all of Tensing's claims.

The expert, Grant Fredericks, said his presentation showed that Tensing wasn't dragged, his arm wasn't stuck in the steering wheel and he wasn't falling when he shot DuBose. Fredericks showed in detail that the car didn't move until a split second before the shot, and then it only moved slowly 1 or 2 feet.

WATCH Fredericks' presentation here:

The jury is not supposed to consider closing arguments as evidence, but since those are the last things they heard, their ears might be ringing from Mathews' plea to put themselves in Tensing's shoes.

"Ask yourselves if I would have done anything differently to protect myself if...I was stuck in a car when it was starting to move. I suggest the evidence in this case, ladies and gentlemen, doesn't even come close to proving that Ray Tensing is guilty of murder or voluntary manslaughter," Mathews said.

Deliberations resumed at 8 a.m. The jury had already met for more than 11 hours over the past two days.

Tensing would face a sentence of 15 years to life if convicted of murder. A voluntary manslaughter conviction would mean three to 11 years.

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