Ray Tensing enters the courtroom for a October 14 pretrial hearing.(Photo: Amanda Rossmann)
CINCINNATI — One police officer.
And the whole world watching.
Former University of Cincinnati police officer Ray Tensing's murder trial in the shooting death of Sam DuBose is set to start Tuesday with jury selection, a case that has been described as one of the biggest in Hamilton County history.
So, ahead of the trial's first day, here's what to expect:Jury selection: Who will hear the case?
Officials said 234 men and women have been summoned to the Hamilton County Courthouse Tuesday, a number that will eventually be culled to 12 with four alternates. Their first task will be to fill out a 25-page juror questionnaire intended to eliminate anyone who already has formed an opinion about Tensing's innocence or guilt. That's more questions than most cases, but attorneys on both sides need to know more about these jurors who will decide a racially charged case. Questioning of jurors in court is scheduled to begin Oct. 31.
For now, the questionnaire is secret, but experts say it likely will include questions such as: Do you have any connections with law enforcement? Are you a member of any advocacy groups? What are your thoughts on Black Lives Matter?
It's unlikely any potential juror will not have heard about the case, but that's not the standard for being seated. The question is whether a juror can render a verdict based on testimony in the courtroom, evidence that's admitted and the judge's instructions on the law.
"If the answer, under oath, is yes, then that is a good juror," said attorney Mike Allen, a former Hamilton County prosecutor. Allen, now a defense attorney, has watched the case unfold and will provide analysis to Fox19 and The Enquirer during the trial.
Each side can dismiss four potential jurors without giving a reason. An unlimited number of potential jurors can be dismissed "for cause," for example if they said they couldn't be fair to a police officer or they would believe anything a police officer said.
"It's like a chess game. You huddle with the client, talk about whether to bump a juror and look at what's coming down the line," Allen said. "At the end of the day, jury selection is done by the seat of your pants. It is always by gut feel."What happened the night of the shooting?
On the early evening of July 19, 2015, Tensing was patrolling off-campus in Mount Auburn. He pulled over DuBose because his car didn't have a front license plate, which is required under Ohio law.
As seen on his body-cam video, Tensing walked to the driver's side window and spoke to DuBose for about a minute, asking for a driver's license and questioning whether it was suspended. Tensing would ask DuBose to take off his seat belt and then tried to open the door.
DuBose would immediately pull it shut, saying, "I didn't even do nothing," as seen on the video. As DuBose started the car, Tensing reached into it with one hand — apparently in an attempt to turn off the car — and said, "Stop!"
Tensing then reached toward DuBose's seat belt, and again shouted, "Stop!"
DuBose could be seen leaning back, an arm raised.
Tensing then shot DuBose in the head.It could all come down to the video
The entire incident and the aftermath was captured on Tensing's body camera and the body cameras of two fellow UC officers who rushed to the scene. The one element not visible is when Tensing pulled his gun; this happened off-camera.
Tensing's attorney, Stew Mathews, has said that Tensing fired the single gunshot because he feared for his life.
Among Tensing's statements to fellow officers who rushed to the scene: “I thought I was gonna get run over. I was trying to stop him.”
Legal experts say Tensing’s statements on the videos have locked him into a self-defense claim.
“We would have not sought that indictment if we did not believe in the probability of success at trial.”Hamilton County Prosecutor Joe Deters
“He’s now stuck with that as a defense,” said Florida attorney Mark O’Mara, who won an acquittal for George Zimmerman in the killing of Trayvon Martin and represented DuBose's family as it obtained a multimillion-dollar settlement from UC early this year.
“He can’t say the gun accidentally discharged,” O’Mara said. “That’s off the table because of Tensing’s statements after the shooting.”
Both sides are expected to call expert witnesses who analyzed the videos.
Hamilton County Prosecutor Joe Deters, who will in part try the case himself, talked about the case Oct. 18 with 700 WLW's Bill Cunningham.
"We would have not sought that indictment if we did not believe in the probability of success at trial," Deters told Cunningham. "There is evidence, the defense knows about it. Everyone will know about it in the trial."Murder, manslaughter or self-defense?
Tensing has been indicted on charges of murder and voluntary manslaughter.
In seeking a murder conviction, prosecutors will ask jurors to find that when Tensing pulled out his gun and shot DuBose, he intended to kill him. State law says murder is when someone purposely causes the death of another.
At a news conference last year announcing charges against Tensing, Deters said Tensing acted out of anger.
“I think he lost his temper because Mr. DuBose would not get out of the car,” Deters said.
Prosecutors also have charged Tensing with voluntary manslaughter, and the jury could instead find the former police officer guilty of the lesser offense. Voluntary manslaughter involves killing someone "under the influence of sudden passion," or killing someone on impulse, without thinking.
Samuel DuBose, 43, was fatally shot by a University of Cincinnati police officer, Ray Tensing, on July 19, 2015, in a neighborhood near campus during a traffic stop. (Photo: Courtesy of DuBose family)
Murder is punishable by 15 years to life in prison. The maximum sentence for manslaughter is 11 years.
Allen said he believes the most appropriate charge would have been reckless homicide, a lesser felony. But he said prosecutors can't now bring that charge against Tensing. In that case, they'd only have to prove Tensing was reckless in his actions. Negligent homicide, a misdemeanor, would then be a possible lesser charge.
"It's difficult to find a police officer guilty, in any circumstance," Allen said. "The jury is going to give the officer the benefit of the doubt."
Under Ohio law, Tensing will have to prove he acted in self-defense — something experts said could be difficult. Not only will he have to show that he was in fear for his life, he also will have to show he couldn't retreat to avoid the danger.
"Except in situations where someone is inside their home, Ohio law doesn't allow for lethal use of force, unless it's necessary," said Ric Simmons, a professor at Ohio State's Moritz College of Law. "If you can avoid it in any way, you have to avoid the taking of a life."
Matthews, Tensing’s attorney, has said his client will testify in his own defense. However, under the law, Tensing is not required to take the stand.
The last officer to stand trial in Hamilton County in connection with a police-involved shooting was 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 unrest in the Over-the-Rhine neighborhood.
That case went to trial without a jury and ended in an acquittal. In his decision, Judge Ralph Winkler wrote: "This shooting was a split-second reaction to a very dangerous situation created by Timothy Thomas… Officer Roach's action was reasonable."How long will the trial last?
Officials expect the trial to be completed in less than two weeks. However, these kinds of estimates are never certain, and it's not known how long it will take to select a jury. So far, more than 25 witnesses have been called to testify.
Roach's trial, which was heard by a judge, not a jury, lasted six days.
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