CINCINNATI, OH (FOX19) - A mistrial was declared Friday in the murder retrial of former University of Cincinnati Police Officer Ray Tensing.
After more than 31 hours of deliberating over 5 days, the jury informed Hamilton County Common Pleas Court Judge Leslie Ghiz they were deadlocked.
Jurors told the judge they were "almost evenly split" in their decision.
Tensing, 27, reacted by dropping his head into one hand and closing his eyes in obvious dismay. He left the courthouse without commenting.
So did his lawyer, Stew Mathews. He later told FOX19 NOW he was "frustrated" and would not comment at this time.
Tensing was charged with murder and voluntary manslaughter in the July 2015 shooting death of Samuel DuBose, 43.
Several members of DuBose's family who were in the courtroom left the courtroom and walked out, emotional. They went into a private conference room, declining comment.
The family issued a statement shortly after through a family attorney demanding a third trial.
Tensing stopped the car DuBose was driving on an off-campus street July 19, 2015, after spotting it without a front license plate and determining the back plate was registered to a female driver whose license was suspended.
Minutes later Tensing shot DuBose once in the head, instantly killing him.
The entire exchange was caught on Tensing's police body camera, a rare case of fatal use of force by a police officer captured on camera, leading to considerable national and local attention.
DuBose's shooting death also was among a string of killings of blacks by police around the U.S. over the last three years.
Few officers have been charged, and none has been convicted by juries in those deaths.
Jurors in the both Tensing murder trials heard two very different versions of what caused the officer to fire his service weapon and kill DuBose with a single bullet to the head.
Tensing, who was 25 years-old at the time, said DuBose began to drive away and that he was being dragged by DuBose's car.
But prosecutors argued the shooting was purposeful. Tensing's own body cam video proves the car was not in motion when Tensing fired, they said.
"That video has no bias, that video has no feelings," Assistant Prosecutor Seth Tieger said. "His own body cam video exposed him as a liar."
Tensing lied to the jury to "save himself," Tiger said. Tensing just lost control and acted instinctively" without time to really really think about DuBose's non-compliance.
DuBose had slammed his car door shut and re-started the vehicle, Tieger said. That angered Tensing. He felt DuBose was going against him as Tensing tried to ID DuBose and was about to handcuff him.
"All that is classic manslaughter. It's a slam dunk of count 2," Tiger said told jurors.
Tensing, Tieger said, also showed no concern for DuBose. He did not cry during his interview with police investigators as he explained what happened, Tieger said.
He saved those tears for the jury.
"There is no remorse. There is no 'oh my god what did I do?'" Tieger said. "It is all very cold and very antiseptic. There was no regard for Mr. DuBose in anyway. He was not treated as a human being. He was treated as a crime scene."
Assistant Prosecutor Stacey DeGraffenreid said Tensing created the situation by lunging into Tensing's car.
The body camera footage shows DuBose's car had not moved at 1.059 seconds before Tensing fired the shot that killed DuBose, she said.
"The defendant was not being dragged up the road," DeGraffenreid told jurors.
Then she played Tensing's taped statement to Cincinnati police investigators a few days after the shooting as Tensing looked down.
She reminded the jury DuBose's car did not move until .4 seconds before the shot was fired.
She suggested Tensing was trained to say key words during his police statement: "feared for my life" and "stop the threat."
"There's no evidence to show his arm was trapped" in DuBose's vehicle, she said.
She asked the jurors to use common sense and work together to reach a decision: that Tensing is a murderer.
During the trial, Tensing took the stand to defend himself.
He tearfully testified for more than two hours.
He said he fired his gun at DuBose because he thought DuBose was going to run him over with his car and kill him.
"So I reached in with my left hand to grab his car keys and that's when with just a fluid motion, he turned the car on and, with his right hand, he went down to center console and shifted his car into drive and smashed the accelerator at that point," Tensing told jurors.
"I'm falling backward and during this time I told him twice: 'Stop! Stop!' My perception,my belief at that point, is the car is moving. I'm continuing to fall backwards. I'm still feeling my arm caught in that car. I felt my body moving with his car, falling backward and, instinctually, just reached for my gun...
"I just didn't want to get sucked under his car and run over," Tensing said. "All I could see was his head and that's when I reached up as far as I could with my right hand and fired a shot."
Mathews asked him:
"Were you dragged?"
"Yes, I was," Tensing responded.
He estimated he was dragged 15 to 20 feet down the street by DuBose's car.
Mathews ended his questioning by asking Tensing what his purpose was in using force against DuBose.
"To stop the threat," Tensing answered.
Tensing has never denied he intentionally shot DuBose, Mathews told jurors in his closing argument, but it is justified.
Tensing was hired at UCPD at a time when crime was up around campus and police were under orders from their chief to go out and make proactive stops, Mathews said.
Acting on orders from higher-ups at UC, the UCPD chief wanted officers to be visible to show crime wouldn't be tolerated near campus.
So when Tensing saw a Honda Accord without a front license plate - which is illegal in the state of Ohio - he followed it and ran the plate, Mathews said.
He pulled the car over when that check determined the plates were registered to a driver whose license was suspended.
"Ray Tensing was doing what he was instructed to do on July 19," Mathews told jurors.
Mathews talked for several minutes about the traffic stops Tensing performed before he stopped DuBose.
In all of them, Mathews noted, Tensing was professional and courteous. Tensing turned up the air conditioning in his cruiser so a motorist he detained was comfortable despite the blazing July heat.
He adjusted the man's handcuffs to make sure they weren't too uncomfortable. The man had five outstanding traffic warrants. Tensing could have taken him to jail, but he used his discretion, cited him and permitted him to call for a ride home instead.
"There's no evidence up to this point that he showed he was in anything but a fine mood," Mathews told jurors.
If Tensing's intention was to kill DuBose, he wouldn't have turned on his body camera, Mathews said.
At the same time, DuBose's behavior during the traffic stop raised "all kinds of red flags," he said.
That included DuBose having a gin bottle filled with air freshener on the floor of the car.
DuBose handed it to Tensing when the officer asked him about it.
Tensing put the bottle on the roof of the car, planning to come back to it once he identified DuBose, who still had not produced identification.
Mathews conceded Tensing was wrong to reach into DuBose's car, but the officer thought he was close enough to knock the keys from the ignition.
"That was a mistake that Ray made, no question about it, but every police officer who testified here this 'never, never, never reach into the vehicle' is a myth. Officers do it all the time," Mathews said.
He also pointed out that Tensing is heard on his body camera footage yelling "Stop! Stop!"
"Why would anybody yell 'Stop! Stop!' at a car that wasn't moving?" he asked the jurors. "I think you can infer at that point the car was beginning to move and the officer felt his life was at threat."
Tensing's story has not changed since the shooting, Mathews said.
Tensing has said since "day one he fired to stop the threat," Mathews told jurors.
The prosecution's own video expert even testified DuBose's car moved before the shot was fired, Mathews said, though Mathews added he disagreed with that expert by how much.
DuBose made up his mind he "wasn't going to sit around" as soon as Tensing turned on his police lights, Mathews said.
He noted that a coroner's official who took the stand for the prosecution testified he only tested some of the four bags of marijuana found in DuBose car, not all of them. Mathews said jurors were unable then to get a full accounting of the drug DuBose actually had on him during the traffic stop.
DuBose knew Tensing likely would find that marijuana and $2,600 in cash in his car, which would have sent DuBose to the county jail with a felony drug charge, Mathews said.
Tensing couldn't de-escalate the situation because his arm was pinned in the car as DuBose drove off, Mathews said.
The case, he said, comes down to "20/20 hindsight" on seconds from Tensing's body camera footage then broken down in milliseconds.
"The body camera footage is not the only piece of evidence in this case," Mathews said.
"You have to put yourself in Ray Tensing's place. I think, ladies and gentleman, if you do all of that, you are going to find that Ray Tensing's actions were justified, that he was a reasonable police officer and you will have no choice but to find him not guilty of murder and voluntary manslaughter."
In his final remarks, Mathews evoked the testimony of one of the prosecution's witnesses who he says was "the lead investigator" on DuBose's shooting, Cincinnati police Sgt. Shannon Heine.
Her testimony was a stunning moment during the trial - a rare one in which a witness for the prosecution gave jurors information that was beneficial to the defense.
During the trial, experts for the prosecution and defense provided dueling testimony:
- Prosecution forensic video expert Grant Fredericks showed a frame-by-frame breakdown of Tensing's body camera video that DuBose wasn't dragged. DuBose's car appeared to only slightly move forward before the shot. Tensing pointed his gun at DuBose's head before the car moved.
Police use of force expert Scot Haug testified Tensing's use of force was "unreasonable" in the "unjustified" shooting. He also said he found nothing to indicate Tensing was dragged and his decision to lunge into the car to knock out the key was technically unsound.
James Scanlon, a police training expert with more than three decades experience as a police officer, testified for the defense. He also showed Tensing's body cam video frame-by-frame and noted it showed DuBose presented several "threat indicators" with his conduct. DuBose took off and turned left into Tensing. Scanlon said he would use his duty weapon in the same situation.
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. 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.