No third trial for ex-UC cop Ray Tensing in shooting death of unarmed motorist Sam DuBose

Hamilton County Prosecutor Joe Deters said discussions with "multiple jurors" after two mistrials in the case against Ray Tensing led him to not pursue a third trial.

"They have, to a person, said…that we will never get a conviction," Deters announced at a news conference Tuesday.

Deters said he will dismiss the murder and voluntary manslaughter charges that the former University of Cincinnati police officer has faced for nearly two years in the fatal shooting of Sam DuBose.

More:John Cranley on decision not to retry Ray Tensing: 'It is not over'

Tensing's attorney, Stew Mathews, said Deters did the right thing. Two mistrials have been declared after the juries could not agree on verdicts.

After the second trial ended last month with a deadlocked jury, Mathews said, "I was assured by those jurors that there would never be a unanimous decision in this case.”

Deters said the decision to not pursue another trial was the most difficult of his career.

"My opinion of this case has not changed as of two years tomorrow, and it is not going to change," Deters said. Tensing fatally shot DuBose on July 19, 2015 as he tried to drive away from an off-campus traffic stop.

"In this case, we had jurors who would not vote to convict a police officer," he said. "Now, after two trials and probably a million dollars… I have come to the conclusion that we cannot win a trial in this case, with these facts."

The case involved the killing of an unarmed African-American man by a white officer who said he feared for his life, that he would be dragged under DuBose's car. 

Tensing's body camera showed much of what happened, but experts who testified on Tensing's behalf said it gave an incomplete picture. There was conflicting testimony, for example, about whether Tensing's arm was trapped inside the car after he reached in to remove the keys from the ignition when DuBose restarted it.

More:Reaction to Tensing decision muted on campus

And a key prosecution witness, a Cincinnati police officer who was a lead investigator, Sgt. Shannon Heine, testified early in the second trial that Tensing may have been justified. Heine did not say that in the first trial.

A federal civil rights prosecution, however, is still possible.

U.S. Attorney Benjamin Glassman said Tuesday that his office is reviewing the case to determine whether to pursue federal civil rights charges against Tensing.

Deters said Glassman's office contacted members of his staff about 10 days ago.

Deters' announcement was met with intense criticism from DuBose's family as well as black leaders.

More:Sam DuBose's family: 'We’ve got to speak up for our children'

"I am absolutely disgusted that Tensing gets to shoot Sam and then run out the clock," DuBose's sister, Terina Allen, said at a news conference on the sidewalk outside Deters' office.

Allen added that her brother "never deserved to die, to be point blank executed because he upset a police officer. Defiance is not an acceptable reason to shoot Sam in the head."

Donyetta Bailey, president of the Black Lawyers Association of Cincinnati, took aim at Deters.

More:Cincinnati black leaders respond to decision

"Just because justice is hard, doesn’t mean you give up and you quit," Bailey said. "What if this was your son? What if this was your brother? What do I tell my son as an African-American male that somebody can kill him on videotape and lie about the reasons? Tensing gave specific facts about why he shot Sam DuBose, and none of those facts proved out to be true. And your response to the family is, 'Oh well, we have tried twice and we’re not willing to try a third time.'"

Mathews was cautious in his comments because of the now-pending federal investigation.

He said Tensing "is somewhat relieved he’s not going to have to go through this process again in Hamilton County. But it’s still not over.”

Tuesday's announcement, Mathews said, was not a win or loss for either side.

“This is a tie,” he said. “We were not playing for a tie... I’m sure they weren’t playing for a tie, either.”

More:Deters blames racism for failure to convict

The jury's vote in the second trial, which ended last month, was less favorable to the prosecution. Jurors voted 8 to 4 to acquit on murder, 7 to 5 to acquit on voluntary manslaughter.

Mathews said Tuesday for the first time that it appears there were racial divisions among jurors in both trials.

There were two African-American jurors in the first trial, three in the retrial.

"My understanding from talking to jurors in both trials is that all five African-Americans on both juries voted guilty on both charges," he said, "and there was nothing I could have said or done that would have changed anyone's minds."

In the retrial, where all the other jurors were white, that means only one white juror voted for a murder conviction, and two white jurors voted to convict on voluntary manslaughter.

More:Complaint filed against CPD sergeant who testified in Ray Tensing retrial

The final vote on the manslaughter count was nearly the opposite of how jurors in the first trial last year are believed to have voted. That jury voted in November 8 to 4 to convict on the manslaughter charge, Deters has previously said.

Deters also talked about the difficulty of prosecuting a police officer. 

Juries "tend to want to give the benefit of the doubt to the officer," he said.

Since 2008, Deters said, his office has reviewed approximately 50 police shootings. Tensing is the first "we've ever charged with a crime," he said. All the other officers were cleared.

There had been speculation that Deters would go back to a grand jury and seek lesser charges, such as reckless homicide. During a July 5 interview on 700WLW, Deters said he can't do that because legally he had run out of time.

During the second trial, prosecutors made a formal request to Hamilton County Common Pleas Judge Leslie Ghiz to have the jury consider reckless homicide, but Ghiz said the evidence didn’t support it.

"To say that we overcharged him is absolutely idiotic. When someone says I intentionally shot someone in the head, that's purposeful…it's a purposeful act," Deters said. "That is murder, unless it's justified. Period."

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