DuBose family demands third Tensing trial, investigation of lead - Cincinnati News, FOX19-WXIX TV

Cincinnati Police close review of detective in Ray Tensing retrial

Sam DuBose's family listen as the judge declares a mistrial. (Pool/Cara Owsley) Sam DuBose's family listen as the judge declares a mistrial. (Pool/Cara Owsley)
Cincinnati Police Sgt. Shannon Heine testified in both Ray Tensing murder trials. (FOX19 NOW/file) Cincinnati Police Sgt. Shannon Heine testified in both Ray Tensing murder trials. (FOX19 NOW/file)
CINCINNATI, OH (FOX19) -

Cincinnati Police Sgt. Shannon Heine was supposed to be one of many building blocks in the case against Ray Tensing. Instead, she offered testimony many considered damaging to the prosecutors' efforts, sparking an internal investigation.

She was cleared by the department of wrongdoing Friday, partly because prosecutors had met with her before the trial and had “full knowledge of these opinions,” but opted to call her anyway, the report said.

Hamilton County Prosecutor Joe Deters has said her testimony “blindsided us.”

The report does not say how police investigators know prosecutors were aware of what Heine was thinking. Did they talk to prosecutors? Or did Heine tell them that? Sgt. Eric Franz said Police Chief Eliot Isaac stands behind everything written in the report.

Prosecutor’s Office officials declined to comment, saying the case is over.

Al Gerhardstein, who represents the family of Sam DuBose, and also filed a citizen's complaint against Heine on behalf of the Cincinnati Black United Front, said the family is disappointed the review ended with what he thought was finger-pointing.

“From the perspective of the family of the deceased, this kind of major error in a trial is unacceptable and shocking,” Gerhardstein said. “She should never have been called as a witness. That is really disturbing. There is too much at stake for this kind of mistake.”

The second trial of the former University of Cincinnati police officer who fatally shot DuBose during a July 2015 traffic stop ended in a mistrial after jurors could not come to a unanimous decision on charges of murder or voluntary manslaughter. Deters has said he will not re-try Tensing, a matter set to be heard in court Monday.

On the retrial’s second day, 18-year police veteran Heine walked up to the witness stand in full uniform, placed her cap on the ledge and answered questions from Hamilton County Assistant Prosecutor Seth Tieger.

Heine, one of the lead investigators, interviewed Tensing on July 21, 2015, two days after he killed DuBose as he tried to drive away from the traffic stop.

She talked about how Tensing had been allowed to see body-camera video of the shooting before the interview. That, she said, was different than her own department’s policy.

[DuBose family demands third Tensing trial, investigation of lead detective]

Related story: Testimony from lead investigator 'a gift from heaven' for Tensing

FOP leader: Tensing prosecutor criticism of investigator 'offensive and dangerous'

Her testimony followed closely what she had said during the first trial.

Then, under questioning by Tensing’s attorney, Stew Mathews, Heine gave her opinion that Tensing likely was justified when he shot DuBose once in the head.

It was a clear turning point in the trial.

When Deters announced he will drop murder and manslaughter charges against Tensing, he said Heine’s testimony “was very impactful.”

Even Cincinnati Police Chief Eliot Isaac was surprised and ordered a review of what happened.

The review ended Friday with a four-page report done by the department's inspections section. It found Heine followed department "policy, procedure, training, and standards of conduct."

Additionally, prosecutors were aware of what she might say at trial and were not surprised, the report said.

“On May 18, 2017, Sgt. Heine and other members of the department met with the prosecution team in a pretrial meeting where specific questions were asked of the officers concerning their personal opinions as related to the charges before the court," the report reads. "Sgt. Heine and others candidly and clearly responded to the questions presented in that meeting. The prosecution team, with full knowledge of these opinions, opted to issue a subpoena/notification to Sgt. Heine to appear as a witness for the prosecution.”

The citizens' complaint remains open, although it will include a look at this report.

Deters told 700WLW radio host Scott Sloan on Wednesday that Heine's testimony changed the direction of the prosecution’s case.

"She never volunteered that to us over the last couple years, that that was her personal feeling in any fashion," Deters said to Sloan. "I'm being perfectly frank: It blindsided us."

Heine, 40, a graduate of Seton High School, has been a Cincinnati police officer since 1998. Her personnel file includes no other complaints.

Here's how Mathews’ questioning of Heine unfolded on June 9:

Mathews’ first asked if investigators make a recommendation to prosecutors about whether charges are warranted in officer-involved shootings.

Heine, who spent three years in internal investigations, said she typically gave input about “the legality of the actions taken by the officer.”

“Did you do that in this case?” Mathews asked.

“Not too much,” Heine responded.

Mathews asked what she meant. She started to answer but Tieger objected. Hamilton County Common Pleas Judge Leslie Ghiz overruled the objection.

Heine, her voice trembling slightly, then said, “Based on my time and training with internal investigations, I thought I was looking at an officer-involved shooting where his actions may be determined to be justified.”

After another objection from Tieger and a sidebar with Ghiz, Mathews asked Heine if she found anything in his statements “that was inconsistent with anything you knew about this case?”

Tieger objected. Ghiz overruled.

“No, I did not,” Heine said.

Veteran defense attorney Mark Krumbein, who has followed the case closely, said that for the rest of the trial, prosecutors “did damage control,” trying to counteract their own witness’s statements.

“I think it did have an impact on the prosecution,” Krumbein said, noting that he believed Heine “gave her honest opinion.”

During closing arguments, Tieger attacked Heine’s credibility, questioning whether she was part of a “good ol’ boys network” of officers who look out for each other.

The review looked at three specific protocols:

Did Heine file proper paperwork in the case? She did, the investigation found.

Did she interfere with the case in a way that would affect arrest, bond setting, prosecution, sentencing or any other facet of the investigation? She did not, the investigation found.

Did she remain impartial? She did, the investigation found.

Police union president Dan Hils said the idea that Heine changed the direction of the prosecution’s case was “silly.”

“Just because they didn’t get the outcome they wanted,” Hils said, "that doesn’t mean they should throw Sgt. Heine under the bus. They should be more focused on the fact that they over-charged Tensing to begin with.”

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