Ray Tensing jury 'almost evenly split,' judge declares second mistrial

One short note ended five days of deliberations when a Hamilton County jury said it was “almost evenly split,” and they could not decide whether Ray Tensing committed a crime.

Tensing dropped his face into his left hand when Common Pleas Judge Leslie Ghiz declared a mistrial – the second time a jury has been unable to come to an agreement in a case that dates back two years.

“God's will is sufficient,” the mother of Sam DuBose, who was fatally shot by the former University of Cincinnati police officer during a 2015 traffic stop, said as she left the courthouse.

It’s now up to Prosecutor Joe Deters to decide whether Tensing will be tried a third time. He can pursue the same charges, murder and voluntary manslaughter, ask a grand jury to consider lesser charges such as reckless homicide, or say it’s done, two trials are enough.

Deters said in a statement that he will comment next week. 

Tensing’s attorney, Stew Mathews, said he is waiting to find out what develops.

"Meanwhile," he said in a text message, "let the politicians tell us about what justice is."

At about 2:10 p.m. Friday, Ghiz read a note sent by the jury of nine women and three men who had deliberated for more than 30 hours.

"We are almost evenly split regarding our final votes," the jury said in the note, according to Ghiz.

Tensing’s first trial last year also ended with the jury deadlocked.

At the time, Deters said the jury in the first trial voted 8-4 to convict on voluntary manslaughter charges. The jury in the retrial did not hint at what charge they were split on. Jury instructions told them to consider murder first, then if there was no agreement, move on to the manslaughter charge.

A group of about 40 protesters gathered outside the courthouse, braving a downpour, and chanted things like, “No justice, no peace!” and “It’s raining injustice!”

Attorney Donyetta Bailey said the second hung jury, in addition to other recent acquittals of police officers in Wisconsin and Minnesota, shows that jurors are “implicitly biased” toward police officers.

“It shows our legal system has no value for African-American human rights,” said Bailey, who is president of the Black Lawyer’s Association of Cincinnati but was speaking on her own behalf. “It’s a tragedy where we could be in a situation where police are murdering people unjustifiably – and we can’t get a jury to uphold the law and apply it to clear facts.”

Ray Tensing video: Samuel DuBose's last words were 'I didn't even do nothing.'

Mike Allen, the county’s former elected prosecutor who has followed both trials, said Deters’ decision to pursue a second trial on the same charges – murder and manslaughter – “was grossly irresponsible.”

“There was a chance for a do-over. There was a chance to do this right. That didn’t happen, and I think that is very unfortunate for this community,“ Allen said.

Allen has been outspoken since Tensing was first charged that he should have faced lesser charges of reckless homicide and/or negligent homicide.

“I think justice cried out for that. I think stubbornly and arrogantly (Deters) didn’t do that because everyone was telling him to do it,” Allen said.

Mid-trial, prosecutors asked that the jury be instructed to consider the lesser charge of reckless homicide, but Ghiz said no.

Opening statements in the retrial were June 8. The seven days of testimony featured video and use-of-force experts for both sides who gave competing views of the incident, much of which was captured on Tensing’s body camera.

Also, in an extremely unusual moment, a lead investigator who testified for the prosecution offered an opinion that Tensing may have been justified.

That bombshell moment led prosecutors to attack the investigator, Cincinnati police Sgt. Shannon Heine, in closing arguments, saying she was inexperienced. Assistant Prosecutor Seth Tieger questioned whether she was part of a “good ol’ boys network” of officers who look out for each other.

Police Chief Eliot Isaac on Friday said he was “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 matter is under review,” he said.

Jurors wanted to give up Friday morning, but Ghiz ordered them to give it one last try. When the mistrial was declared, many jurors appeared tired. At least one, an African-American man who previously served in the military, sat back in his chair in the jury box, arms folded. They had been sequestered four nights.

Not much is known about them. Ghiz has promised to make public the questionnaires they filled out before the trial, at some point.

Outside the courthouse, several of DuBose’s family members spoke to reporters.

"Tensing was never really on trial here, but Sam was," Ebony DuBose, Sam DuBose's cousin, said. "I say to all jurors that served on this case today, and the other trial, that I pray that this never happens to you or your loved one, for you will want justice."

Mark Curnutte contributed.