Prosecutors: Tensing's Confederate flag t-shirt relevant - Cincinnati News, Weather, Sports from FOX19 NOW-WXIX

Prosecutors: Tensing's Confederate flag t-shirt relevant

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Samuel DuBose/Ray Tensing/FOX19 NOW/file Samuel DuBose/Ray Tensing/FOX19 NOW/file

A T-shirt depicting the Confederate flag that Ray Tensing wore under his police uniform when he fatally shot Samuel DuBose is relevant evidence that should be part of his upcoming murder retrial, Hamilton County assistant prosecutors say.

They are combating a bid by Tensing's attorneys to keep the "Great Smokey Mountains" T-shirt out of the second trial.

Jury selection begins May 25. Tensing, 27,is charged with murder and voluntary manslaughter.

A photo of the T-shirt was shown during his first trial, which ended in a hung jury and mistrial in November.

Tensing has said he shot DuBose because he was in fear for his life during the July 19, 2015 traffic stop.  

At the time, the then-University of Cincinnati police officer told investigators he was being dragged by DuBose's vehicle as DuBose fled the traffic stop.

At his trial, he testified he perceived he was being dragged. 

Tensing's defense maintains the T-shirt is not relevant and could prejudice the jury.

But prosecutors say his undamaged police uniform, including the T-shirt, shows he was not being dragged when he shot DuBose.

A witness for the prosecution during the first trial, a forensic video expert, testified Tensing's own body camera video shows Tensing drew gun and pointed it at DuBose’s head after DuBose restarted his car, but before it moved.

The video also shows Tensing shot DuBose before DuBose's car barely moved, the expert told jurors.

"The defendant is putting forth a defense that his killing of Sam DuBose was legally justified," assistant prosecutors wrote in court records.

"The defense is that he was being dragged by the defendant's car. The admission of the defendant's clothing and police equipment is extremely important to show the defendant was not being dragged. The clothing shows no damage and is therefore relevant....

"The State contends that the T-shirt's probative value is substantially outweighed by the danger of unfair, prejudice, confusion of the issues, or of misleading the Jury," prosecutors wrote.

"The State contents that the T-shirt's probative value is not 'substantially' outweighed as stated in the rule. The rule does not prohibit unfavorable evidence to the defendant."

The case returns to court Thursday, court records show.

Hamilton County Municipal Court Judge Leslie Ghiz is expected to check on pretrial issues as the retrial approaches.

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