Tensing retrial judge rejects prosecution request for lesser cha - Cincinnati News, Weather, Sports from FOX19 NOW-WXIX

Tensing retrial judge rejects prosecution request for lesser charge

Hamilton County Common Pleas Court Judge Leslie Ghiz (FOX19 NOW) Hamilton County Common Pleas Court Judge Leslie Ghiz (FOX19 NOW)
Hamilton County Assistant Prosecutor Seth Tieger (FOX19 NOW) Hamilton County Assistant Prosecutor Seth Tieger (FOX19 NOW)
FOX19 NOW FOX19 NOW
Defense video expert Scott Roder says Samuel DuBose's car moved 2.4 seconds before Ray Tensing fired his gun. (FOX19 NOW) Defense video expert Scott Roder says Samuel DuBose's car moved 2.4 seconds before Ray Tensing fired his gun. (FOX19 NOW)
Ray Tensing speaks with his attorney in court Thursday. (Cincinnati Enquirer) Ray Tensing speaks with his attorney in court Thursday. (Cincinnati Enquirer)
CINCINNATI, OH (FOX19) -

In a surprise development Thursday, Hamilton County prosecutors asked the judge overseeing the Ray Tensing retrial to add the lesser charge of reckless homicide.

The third-degree felony carries a possible sentence of 9 months to 3 years in prison.

Tensing is on trial for the second time on charges of murder and voluntary manslaughter in the 2015 shooting death of Samuel DuBose during a traffic stop.

The first trial last fall ended in a hung jury and mistrial.

"As the court knows, this is the second trial we've been through," Assistant Prosecutor Seth Tieger said Thursday before the jury was brought it.

"The first jury was unable to reach a verdict. To prevent a miscarriage of justice, where there would be a second hung jury, the state feels it's important to give the lesser offense of reckless homicide."

Tensing's attorney immediately objected. 

Stew Mathews said prosecutors were trying to give jurors "every opportunity to reach a compromise verdict" and the court shouldn't encourage that.

Hamilton County Common Pleas Court Judge Leslie Ghiz denied the motion.

She said the prosecutor's office had plenty of opportunity before now to add the lesser charge. She also said she had anticipated the move, already thoroughly researched it and didn't find legal basis.

"It is the prosecutor's job, not this court's job, to include reckless homicide," she said.

Tieger argued with her.

She agreed to reconsider the motion once the defense rested.

Murder carries the possibility of 15 years to life in prison.

The voluntary manslaughter charge could put Tensing in prison for 3 to 11 years.

The county's former prosecutor, Mike Allen, a FOX19 NOW legal analyst, said he thinks the request for the lesser charge shows they are finally realizing they over-indicted Tensing from the start.

The defense's forensic video expert, Scott Roder, broke down Tensing's body camera footage, saying DuBose's Honda Accord moved 5 to 7 feet in 2.4 seconds before Tensing fired his gun. 

DuBose was shot in the head and died instantly.

Roder told jurors he heard heavy revving of an engine believed to be DuBose's car.

He said he found "fatal flaw" with the prosecution's video analyst, telling jurors that Grant Fredericks didn't analyze the video's audio.

Roder did not testify in the first trial. He is the founder of The Evidence Room, an Independence, Ohio-based forensic animation company.

He said he has testified in more than 500 cases in 24 years, including 50 officer-involved shootings.

n a tense cross-examination with Assistant County Prosecutor Stacey DeGraffenreid, however, Roder conceded he has never testified before as a forensic video expert.

The judge certified him one for this trial.

When asked if he believed he is a forensic video expert Roder responded: "Apparently I am now."

Cincinnati Police Officer Nathan Asbury testified he drove Tensing to University of Cincinnati Medical Center after the shooting.

Tensing had a cut on his leg and swelling on his forearm, he said, but did not appear to be seriously hurt.

Three of Tensing's former colleagues at the University of Cincinnati Police Department also took the stand.

Two are current officers: Jeffrey Van Pelt and Derek Noland. They said Tensing appeared pale when they saw him after the shooting.

Tensing kept telling Van Pelt "I was dragged, man. I was dragged," Van Pelt testified.

The UC officers said their police chief at the time of the shooting wanted them to be visible and make proactive traffic stops.

The other former colleague who took the stand was Tensing's supervisor: Richard Haas. He was a lieutenant with UCPD until he retired in June 2016.

He told jurors Tensing was one of his lead officers and he never had any problems with him.

Haas also the then-UCPD chief wanted increased visibility around the area. UC officials wanted to crime reduced around campus.

Haas told jurors he was involved in a use of force incident nearly six years ago that prompted UC to pull their officers' Tasers.

In August 2011, Haas Tased Everette Howard Jr. in the chest when Haas, who was an officer at the time, was called to respond to a dispute on campus among teens over a hat. 

The teen collapsed and was pronounced dead at the hospital.

No charges were filed against Haas, and Deters announced the use of force was justified.

Court is expected to resume Friday with more defense witnesses testifying - and then Tensing himself will take the stand, Ghiz told jurors.

She warned them Friday would be a long day. They would get a longer mid-day break, she said, and urged them to bring snacks. 

She assured them she would not sequester them over the Father's Day weekend.

Copyright 2017 WXIX. All rights reserved.

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