Confederate flag shirt could be barred from Tensing retrial

Ray Tensing's attorneys don't want jurors in his retrial to see the T-shirt depicting a Confederate flag that he was wearing under his police uniform, according to court documents.

That request is in a one-page motion filed Monday in Hamilton County Common Pleas Court, where the retrial is expected to begin in three weeks.

A photo of the black, “Great Smoky Mountains” T-shirt was shown to jurors during Tensing’s first trial last year, as a criminologist outlined what Tensing was wearing the day he shot and killed Sam DuBose during a 2015 traffic stop.

The photo was distributed widely on social media, sparking conversation about whether it mattered in the case, which involves the killing of a black man by a white officer.

In the motion, Tensing’s attorneys say the T-shirt “contains nothing of evidentiary value, is irrelevant and highly inflammatory.”

Showing the T-shirt to the jury, his attorneys say, “would unduly arouse the passions of the jury, rendering them unable to perform their duties as an impartial fact-finder."

They add: “In order to preserve (Tensing’s) constitutionally guaranteed rights of due process a fair trial and an impartial jury, any evidence related to the T-shirt should be excluded.”

It’s not known when Judge Leslie Ghiz, who is overseeing the case, will make a ruling.

Also, a hearing is set for Wednesday about a separate issue. Tensing’s attorneys are questioning the qualifications of a prosecution witness who analyzed the body camera video at the center of the case.

In court documents, his attorneys say there is “some information calling into question the expert qualifications of” the forensic video analyst, Grant Fredericks.

Fredericks’ analysis showed Tensing pulled out his gun and aimed it at DuBose’s head after DuBose restarted the car, but before it moved. Tensing initially told investigators he pulled out the gun because he was being dragged by the car and feared for his life. He testified at trial it was his "perception" he was being dragged.

Tensing’s attorneys say the qualifications of Fredericks – a Spokane, Washington-based consultant – went unchallenged during the first trial. Fredericks said he once headed the forensic video division for the Vancouver Police Department in Canada and also teaches at the FBI academy.

Tensing, a former University of Cincinnati police officer, is charged with murder and voluntary manslaughter in the 2015 shooting of DuBose as he tried to drive away from an off-campus traffic stop. Jurors in the first trial deliberated over four days before announcing they couldn't reach a unanimous verdict.

Ghiz has issued a gag order, preventing attorneys from discussing the case in the media.