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No Third Trial for Cincinnati Officer Ray Tensing in Sam DuBose Shooting

No Third Trial for Cincinnati Officer Ray Tensing in Sam DuBose Shooting

Prosecutor Joe Deters throws in the towel, forwards case files to Department of Justice

Two years ago tomorrow University of Cincinnati Police Officer Ray Tensing, who is white, shot and killed black motorist Sam DuBose during a traffic stop.

The stop, DuBose’ attempt to drive away while dragging Officer Tensing down the road, and the fatal shot were largely captured on Tensing’s body-cam.  Today, after trying Tensing twice and achieving only two hung juries, Prosecutor Joe Deters announced that he is not seeking to try Tensing a third time, reports WCPO news and other sources.

We first covered this story here: “Sam DuBose Shooting: Let’s Go to the Video Tape.”

In that post we did a rather detailed breakdown of the body-cam video.

The raw video can be viewed here, as well:

The same day we made that blog post here, a mere 10 days after the events occurred, Prosecutor Joe Deters announced that he had secured a murder indictment against Tensing. Tensing, naturally, claimed that he shot DuBose in self-defense.

It is worth noting once again Ohio’s unusual burden of proof on self-defense. In 49 states, where self-defense is claimed in a homicide it is the burden of the state to disprove self-defense beyond a reasonable doubt.

In Ohio, in contrast, it is the burden of the defendant to prove self-defense by a preponderance of the evidence. This obviously makes the state’s task of overcoming a claim of self-defense vastly easier in Ohio than in any other state, given the same facts. We wrote about this oddity of Ohio law here in the context of Tensing’s trial here: Arcane OH Self-Defense Law Leaves Officer at Risk of Conviction.

Despite this burden of proof advantage, Prosecutor Deters was unable to secure a conviction in either of his two murder trials of Tensing.

Having now abandoned further efforts to prosecute under state law, Deters has forwarded the case files on to the Department of Justice for their review to determine if federal civil rights charges may be warranted against Tensing.

Federal civil rights charges would normally require some substantive evidence that Tensing acted out of racial animus in an effort to deny DuBose his civil rights.  It appears, however, that the only alleged evidence of alleged racial animus is the fact that during the stop Tensing was wearing a t-shirt under his uniform with a stylized Confederate flag printed on it:

Given that there remain several entire states that incorporate some facet of the Confederate flag in their own state flag design, it seems a bit of a stretch that mere possession of a Confederate flag T-shirt is sufficient evidence of racial animus to warrant a criminal conviction.

Indeed, the jury in the first trial of Tensing was permitted to see the T-shirt in evidence, and nevertheless declined to convict him under Ohio’s burden of proof on self-defense.  At the Federal level the burden of proof on self-defense will be on the government to disprove self-defense beyond a reasonable doubt, a vastly higher standard.

It seems worth noting that although these cases of white officers who shoot young black men that fail to arrive in conviction of the officer are routinely sent to the Department of Justice for review, I can’t immediately recall any case in which even the Obama DOJ went forward with a trial, much less achieved a conviction.  If someone would like to refresh my recollection on that, I’m all ears.

–-Andrew

Andrew F. Branca is an attorney and the author of The Law of Self Defense, 3rd Edition, and a host on The Outdoor Channel’s TV show, The Best Defense.

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Comments

Seriously…???

C’mon. The Stars And Bars are all OVER the county where I live, and are often flown by my black neighbors.

Meanwhile, how about the shooting of the Australian women by a Somali cop in Minnesota?

I have a theory that at first I thought was facetious, but as I discuss it with people who have looked at the time line, and also as I look at the post-shooting actions of the police involved and of the department, keeps fitting in more and more with what we know.

Justine Diamond reportedly thought she heard a sexual assault going on late at night in the alley behind her house. She made a call to 911, and then seeing a police car back there, she walked out to speak to them, naturally assuming that they were responding to her call.

But what if they weren’t there because they were responding to a call, but had been there all the time, and if the noises she heard were coming from that car? I submit the possibility that the two officers in the car were engaged in sexual activities, Jessica walked up unannounced, catching them in the act, and the Somali officer, terrified that his career would be ruined, murdered her in cold blood while his partner attempted to pull his pants back up. They hoped they could come up with some story later that would explain it – but those efforts are falling apart.

This would be why the cameras were turned off – this would be why the other officer in the car has clammed up and won’t say anything – this is why the department itself is going total stonewall on the shooting.

This killing wasn’t accidental, I believe it was cold blooded, intentional, murder, designed to shut down a witness for good.

    Sounds reasonable.

    Except for the absolute absence of evidence.

    –Andrew

      Tom Servo in reply to Andrew Branca. | July 18, 2017 at 8:09 pm

      Evidence – a police officer discharged his weapon MULTIPLE TIMES through a CAR DOOR with his weapon in his partners face – the idea that this was an “accidental discharge” is ludicrous. There is no possible way an “accidental discharge would result in multiple shots fired, as happened here.

      Evidence – the person who was shot was unarmed, innocent of any crime, and by the officers own report, simply having a conversation. There is not even a suggestion of a perceived threat here.

      Evidence – all cameras were turned off in violation of stated policy; if either officer had turned his on at the moment of the shooting, the previous 30 seconds would have been saved, if the cameras worked like most body cameras work.

      When someone in a position of power, someone who has training, intentionally despoils evidence, it is correct to assume that the evidence they destroyed was going to shine a very bad light on them. In fact, as you well know, the law itself explicitly makes that assumption.

      and a curious Lack of Evidence – the victim reported hearing sexual activity in the alley behind her house. By the officers own statement, NO ONE was seen in that alley that night except for the officers themselves.

      I have seen no other attempt at a reasonable explanation as to what transpired. As the character Sherlock Holmes said, “when you have eliminated the impossible, whatever remains, no matter how improbable, must be the Truth.

        Mac45 in reply to Tom Servo. | July 18, 2017 at 9:39 pm

        Just for balance let me throw in another possible scenario.

        Suppose the two cops were in the car ion the alley for a legitimate purpose, investigating a noise complaint or simply on patrol. For argument’s sake, we can even stipulate as to your consensual sexual encounter theory. The woman is not observed to approach the car by the officers. Arriving at the car door, unexpectedly, the officer is startled, draws his weapon and fires on a supposed, though unverified, threat. This is a mistake. An overreaction based upon a fear reaction. Yes, it is criminal, negligent homicide [at least], but there is no malicious intent. Training and experience tends to reduce these type of reactions. I do not know how long the officer had been on the job, but less experienced officers are more prone to these type of mistakes. One final thing to remember is the current threat environment LEOs exist in today.

        While this could have been intentional, it could also have been a horrible mistake.

          Tom Servo in reply to Mac45. | July 19, 2017 at 9:06 am

          I see that this morning, the cop who pulled the trigger has gone full stonewall, and is claiming his 5th amendment Right to say nothing at all about the incident to anyone, not even his own police department. Note that he won’t even say “it was an accident” – he is officially saying “anything I say will incriminate me.”

          Not a stretch to say that his lawyers have informed him that he is definitely going to do jail time; the only question is if he will be able to plead it down to manslaughter and maybe only 10 – 15 years in the pen. He will be counting on the media to downplay things since he’s Somali, and for conservatives to fall into the mindset of “cops can kill anyone they want, we don’t care”.

          I think this is a perfect Death Penalty case myself. “Pour encourager les autres”.

          Mac45 in reply to Mac45. | July 19, 2017 at 12:05 pm

          This why prosecutors lose police shooting cases, which they should win. They, like you, make wild, wholly unsupported assumptions.

          In this case, your first unsupported assumption is that the LEO was engaged in some act for which he feared personal repercussions. You base this upon the fact that the officer’s body cams were not active nor was the dash cam. However, this means nothing. Body cams usually do not run continually during an officer’s shift. They are routinely turned off and on pursuant to the situation and departmental policy. And the dash cams in many department vehicles are slaved to the emergency equipment, requiring the overhead lights to be turned on before the camera operates. It also stems from the erroneous belief that an officer will not overreact or act in a manner contrary to departmental policy, unless engaged in a prohibited action. And, your whole position flows from this assumption.

          Your next assumption is that the LEO shot the woman to cover up this act. Again, this requires the first assumption to be correct.

          Finally, without any evidence what-so-ever, you ignore equally valid scenarios. At this point, we do not have enough facts to make a clear judgement. Did the woman’s approach to the cruiser startle the LEOs? Did she have an object in her hand which could be mistaken for a deadly weapon? If so, was the object held in such a manner as to suggest a viable threat? What about the reports of a loud noise outside the cruiser immediately before the woman reached the car? Then there is the current threat environment in which LEOs operate today. Remember the NYPD officer who was shot and killed while simply sitting in her vehicle by someone who walked up to the side window?

          To be clear, this will very likely be ruled a bad shooting. At this point, it does not appear that there was any legal justification for the use of deadly force. It was not an accident. But, there may be extenuating circumstances which explain his actions, while not excusing them. There may very well be additional hiring, training and retention failures involved.

          However, there is absolutely NO evidence to support the charge that the LEO intentionally shot the victim to cover-up an illegal or improper action on his part.

          Gremlin1974 in reply to Mac45. | July 19, 2017 at 2:45 pm

          @Tom Servo

          The officers and department not being forthcoming with information at this point is not surprising. Right now there are 2 concurrent homicide investigations being conducted, one by homicide detectives and one by Internal Affairs detectives. Until both of these investigations are complete I would not expect to hear much of anything.

          Due to lack of witnesses this case will probably come down to the Training Officer’s testimony. Were I that officer I would be pissed that a rookie cop had endangered by career and had killed an innocent woman, but that is just me.

          I don’t know if Ohio uses a Grand Jury system, but if they do then I would expect an indictment from the GJ at the very least. (My state does not use GJ’s) I don’t see how this one doesn’t make it to trial at the very least.

          Gremlin1974 in reply to Mac45. | July 19, 2017 at 2:48 pm

          @Tom Servo

          “he is officially saying “anything I say will incriminate me.”

          Actually no, that is not what pleading the 5th means.

        Where’s the evidence of the officers having sex, other than your fevered porno imagination?

        No offense.

        To the porn industry, I mean. 🙂

        –Andrew

        Gremlin1974 in reply to Tom Servo. | July 19, 2017 at 2:53 pm

        Wow, I have seen a great deal of fantastic speculation before, but this is a whole new level, lol.

    4th armored div in reply to Tom Servo. | July 18, 2017 at 7:44 pm

    fits the fact that ALL the video cams were OFF.

    gives the meaning of ‘Cop Killer’ a new meaning.

    These cops need to be arrested for murder!

    Edward in reply to Tom Servo. | July 20, 2017 at 7:23 am

    I think the Somali officer simply didn’t understand Australian.

The reason that the DA lost this case is largely because he argued the wrong premise. He filed for first degree [premeditated] murder. If the charges had been for negligent homicide [the shooting was accidental or not intended] or for manslaughter [the shooting was intentional, done in the heat of the moment, but the force used was unlawful] Tensing would probably have been convicted. Personally, Tensing’s statement aside, I have always believed that the shooting was actually accidental and was the result of a sympathetic reaction in the right hand when Tensing grabbed the steering wheel with his left, as Dubois drove off.

    You should ask someone to explain lesser-included charges to you. There’s no such thing as over-charging leading to lack of verdict simply because of over-charging, especially when the charge is a killing charge. There’s a whole cascade of lesser-included charges that are automatically put to the jury for consideration. They obviously rejected them all.

    –Andrew

      Andrew, you know as well as I do that overcharging can often lead to failure to find guilt for lesser included charges. If the jury feels that the prosecutor grievously overcharged a defendant, especially for political reasons, it can taint the whole case, by casting the defendant as a victim of a flawed system. This allows members of a jury to more closely identify with the defendant and fail to vote for conviction on any charge.

      In this case, the charges were obviously nothing more than a political action and were grossly excessive. Anyone could see that. Add to that the fact that Tensing fired as he was reaching into the car and Dubois pulled away, which knocked, or caused Tensing to fall, to the ground, and significant sympathy is generated for the defendant. It becomes easy for the jury to see the defendant as a victim, rather than a criminal perpetrator.

      If the DA had pursued charges of manslaughter, rather than 1st degree murder, I think he might actually have gotten a conviction, either for manslaughter or for negligent homicide. As he noted, there was no reason for Tensing to have drawn his pistol and certainly no reason to have it pointed at Dubois’ head. In addition, reaching into the car, while holding the firearm was negligent. There was a strong case for negligent homicide. If one includes Tensing’s statement that he intentionally discharged his weapon, in self defense, this is not a strong argument for self defense. Given his location alongside the car, he would have suffered no injury when Dubois pull away and certainly was not in any danger of great bodily harm or death. Taking one step backward would have removed him from any danger.

      This was a terrible prosecution from start to finish. It is all on the prosecutor.

        “Andrew, you know as well as I do that overcharging can often lead to failure to find guilt for lesser included charges. ”

        No, I do not know this.

        Next question.

        –Andrew

        Char Char Binks in reply to Mac45. | July 23, 2017 at 5:36 pm

        Nobody can be hit by, run over, or harmed in any way by a car unless he’s standing directly in front of it, right? Let’s test that theory — I’ll drive.

      tphillip in reply to Andrew Branca. | July 19, 2017 at 6:04 am

      >There’s a whole cascade of lesser-included charges that are automatically put to the jury for consideration. They obviously rejected them all.

      So in ALL 50 states if someone is charged with murder they are also automatically charged with manslaughter? In which of the 50 states is that true, and based on what laws?

      Start with Ohio, and then fill in the other states as best you can. At least in New York lesser charges are only presented if the DA decides; it’s not automatic. And IIRC you have in the past commented specifically in a case that did not include lesser charges (Like manslaughter) that had they included those charges they would not have lost.

        Gremlin1974 in reply to tphillip. | July 19, 2017 at 2:56 pm

        My understanding is it really depends on which charges that the Prosecution, Defense, and ultimately Judge decide should be in the Jury Instructions. From my understanding many Jury Instructions are standardized, but can usually be modified by agreement.

        “So in ALL 50 states if someone is charged with murder they are also automatically charged with manslaughter? In which of the 50 states is that true, and based on what laws?”

        I did not, of course, say anything of the kind, and I’m too busy today to squabble with someone using legal terms of art in ignorance.

        –Andrew

How is the Ohio law on self defense actually Constitutional? I thought the gold standard was innocent until proven guilty – that law seems to starts out as guilty until proven innocent.

    US Supreme Court says it’s perfectly constitutional. Lots of defenses, traditionally termed affirmative defenses, put the burden of persuasion on the defense–insanity defense, for example.

    Simply the case that 49 other states choose to put the burden on the State.

    (As an aside, there are a couple of judicial districts in Louisiana that apply the “Ohio standard” to non-homicide self-defense cases in that state.)

    –Andrew

After watching the video I have no idea why jurors voted for a conviction and why he was even charged. If A Police Officer can’t protect his own life because of political correctness gone completely insane, why would anyone take the job?

    Marcus in reply to Jackie. | July 19, 2017 at 7:21 pm

    C’mon, Jackie. Where the hell else can you get a starting salary that’s less than a Mickey Dees manager? 😀 😀

There should not have been a first or second trial either.

Sharpshooter | July 24, 2017 at 7:21 am

Nobody can be hit by, run over, or harmed in any way by a car unless he’s standing directly in front of it, right? Let’s test that theory — I’ll drive.

If you don’t like my driving, stay off the sidewalk?

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