DuBose family demands third Tensing trial, investigation of lead detective

Updated: Jun. 23, 2017 at 4:10 PM EDT
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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, OH (FOX19) - The family of Samuel DuBose is demanding a third trial for Ray Tensing.

They also want Cincinnati police to investigate one of their own, the lead homicide detective on DuBose's fatal shooting.

DuBose's mother, Audrey DuBose, issued a statement through family attorney Al Gerhardstein thanking the community for their support and praising the Hamilton County Prosecutor's Office.

"The family commends the prosecutors for their strong presentation in this case but we are outraged that a second jury has now failed to convict Ray Tensing for the murder of our beloved Sam DuBose," the statement reads.

"We stand with the families of Terrance Crutcher of Oklahoma, Philando Castile of Minnesota, Freddie Gray of Maryland, and Sylville Smith of Wisconsin and demand justice for all these men who have been murdered by police officers who have escaped guilty verdicts.  We demand another retrial.  We call on the community to join us in peaceful protest of this unjust result."

Hamilton County Prosecutor Joe Deters declined to comment Friday. He said he would make a statement next week.

He has until July 24 to announce if he will seek another trial - and on which charges.

The president of the state police union said a third trial would be a "spectacle."

"Officer Ray Tensing has now faced two trials, two jury deliberations and two mistrials," wrote state FOP President Jay McDonald in a prepared statement.

"These juries were advised by experts and had all the time they needed to deliberate. The second jury had the additional benefit of prosecutors who had already tried the case once. Despite all that, neither jury found Officer Ray Tensing guilty beyond a reasonable doubt.

"As a fellow police officer, I understand the impact of these trials on the officer, on the families affected and on the community," his statement reads.

"I also know that these kinds of trials can have a negative impact on law enforcement officers as they try to make split second decisions meant to keep our communities safe

"For all of these reasons, I hope that we can now focus on helping this officer, the families involved and the community heal," he wrote. "We hope the prosecutors will recognize the decision of two juries and avoid the spectacle of a third trial."

The DuBose's family also is calling on Cincinnati Police Chief Eliot Isaac to investigate Sgt. Shannon Heine, the lead investigator on Tensing's use of force into Samuel DuBose's fatal shooting.

Gerhardstein emailed a complaint about her to Isaac on Wednesday.

Heine gave surprise testimony during cross examination during the retrial, telling jurors Tensing's actions may be justified.

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

Gerhardstein released a copy of the family's complaint to the chief:

"On their behalf, I request that an investigation be conducted of the testimony that Sgt Heine presented in the Tensing trial," he wrote.

"She was the state's representative as lead homicide investigator on the case.  She undermined the prosecution case by testifying in response to a defense question that based on her experience, training and education she thought the shooting may have been justified.

"She suggested that the prosecutor ignored her opinion.  This testimony clearly surprised the prosecutor who had to spend considerable time trying to offset it through later testimony and at closing.

"An investigation should determine:

  • Did Heine withhold her testimony from the prosecutor and surprise the State at trial
  • Was her testimony a breach of her duty as part of the prosecution team
  • Did Heine report to the prosecutor any conversations she had with defense counsel in which this opinion was voiced and the plan was made to elicit the opinion at trial
  • Is the opinion expressed by Heine part of the homicide investigation file.  If not, was it appropriate to offer a private opinion that she had not documented in the file
  • Was Heine offering her opinion as a personal matter or as lead investigator
  • Should Heine be disciplined

"Please let me know promptly if this matter is being investigated," Gerhardstein wrote to the chief.

"This should be pursued regardless of the outcome of the trial, as it raises issues central to the role of the homicide investigators who partner with the state in criminal trials.

"Moreover the conduct of Sgt Heine opened the Cincinnati Police Department to the valid criticism that she was covering up for Tensing and not investigating the killing of Sam DuBose as she would other homicides that were not committed by police officers.

"This severely undermines the public trust in the CPD. A thorough investigation is needed," he wrote.

"The DuBose family and the public deserve to know the answers to these questions and whether there will be consequences."

In a press conference at City Hall with other city leaders, Isaac said the matter was under review.

"I am concerned about a number of things that occurred during the trial, not only Sgt. Heine's testimony, but also some of the comments made during the closing statement," the chief said.

"The matter is under review and I will have a bit more later regarding that."

Heine could not be immediately reached for comment.

Sgt. Dan Hils, the police union leader, did not have an immediate comment.  He indicated he would respond once he had a chance to review the DuBose's family's full statement.

Earlier this week, Hils defended her in a lengthy Facebook post in which he took the prosecutor's office to task for criticizing her during closing argument.

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

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