Ex-officer awaits decision on retrial in fatal shooting

CINCINNATI – A white Ohio police officer charged with murder for fatally shooting an unarmed black man during a traffic stop is waiting to find out whether he will be retried after a jury deadlock resulted in a mistrial.

Ray Tensing, now a former University of Cincinnati police officer, was indicted on charges of murder and voluntary manslaughter in the July 19, 2015, shooting death of Samuel DuBose. His racially charged murder trial ended in a mistrial Saturday after the jury reported it could not agree on a verdict.

“Obviously, we are hoping that he (the prosecutor) will decide that a retrial would be fruitless,” Tensing’s attorney Stewart Mathews said Monday.

The defence will have to wait and see, Mathews said.

Hamilton County Prosecutor Joe Deters is expected to report to a judge at a Nov. 28 hearing on whether he will drop the case or retry Tensing. Deters also could ask a grand jury to indict Tensing on lesser charges.

After the judge declared a mistrial, Deters said prosecutors will go through an analysis to determine whether there is a probability of success in retrying Tensing.

“If I think we can win, we’ll retry the case,” he said.

Dubose’s family wants prosecutors to try again for a murder conviction.

Michael Benza, a criminal law professor at Case Western Reserve University in Cleveland, said prosecutors normally try to determine what jurors were thinking and whether the state could do something differently to improve their case.

“They might decide to go with different experts or more experts, or call different witnesses,” Benza said, adding that the defence goes through the same type of process.

Deters has said jurors were leaning toward acquittal on the murder charge and deadlocked 8 to 4 in favour of the lesser charge.

Ric Simmons, an Ohio State University criminal law professor, said prosecutors deciding whether to retry cases also look at the number of jurors who favoured acquittal or conviction.

“If it is 11 to one for acquittal, you probably wouldn’t want to do it again,” he said.

Simmons said prosecutors’ decisions on whether to give up or keep going also can send a message to the community about how serious they were about a case.