Mistrial in Cincinnati Shooting as Officer Is Latest Not to Be Convicted

CINCINNATI — The encounters with the police officers turned deadly within seconds. Each time, a black man was fatally shot, and each time, it was captured on video. And three times in the span of a week, the officers’ trials have ended without a conviction.

On Friday, it was jurors here who were hopelessly deadlocked in the retrial of Raymond M. Tensing, the former University of Cincinnati police officer who faced charges of murder and voluntary manslaughter for fatally shooting Samuel DuBose, an unarmed motorist, in 2015. Mr. Tensing’s first trial, held last fall, also ended with a hung jury.

“We are almost evenly split regarding our final votes,” read the note passed from the jury to Judge Leslie Ghiz, who declared a mistrial as rain lashed against the windows of her chilly downtown courtroom. Mr. Tensing dropped his head into his hand and squeezed his eyes, while one man seated with Mr. DuBose’s family hung his head and looked out at the rain.

As she walked out of the courtroom, Terina DuBose-Allen, a sister of Mr. DuBose’s, spoke quietly: “I think it’s horrible.”

Jurors had deliberated for more than 30 hours in the case, which revolved around a botched traffic stop that prosecutors once called “asinine” and “senseless.”

The mistrial left prosecutors weighing whether to try Mr. Tensing a third time, and what charges to use if they do. Last week, partway through the trial, prosecutors had sought to add a third — and lesser — charge of reckless homicide to the jury’s options. Judge Ghiz denied the motion, saying, in essence, that it was too late.

Joseph T. Deters, the head prosecutor in Hamilton County, said he would not comment on his plans until next week.

But Mr. DuBose’s family — along with activists gathered outside the courtroom — urged the prosecutors to press on. “We are outraged that a second jury has now failed to convict Ray Tensing,” Audrey DuBose, Mr. DuBose’s mother, said in a statement. “We demand another retrial.”

In the wake of acquittals of police officers in St. Paul a week ago and Milwaukee on Wednesday, the mistrial here underscored a difficult reality for prosecutors and activists who want officers held criminally liable in cases like these: A conviction is far from assured, even when there is video evidence and an aggressive prosecutor.

In St. Paul, jurors watched dashboard video showing Officer Jeronimo Yanez shoot into the car where Philando Castile, a cafeteria worker, was sitting with his fiancée and her daughter, and acquitted the officer. In Milwaukee, jurors acquitted Officer Dominique Heaggan-Brown after watching frame by frame as he shot a fleeing suspect, Sylville K. Smith, and fired a second time after Mr. Smith tossed a gun he was holding and lay on the ground.

Here in Cincinnati, prosecutors turned time and again to the body-camera footage gathered by Mr. Tensing when he stopped Mr. DuBose on a summer evening after noticing a missing license plate. Mr. Tensing asked Mr. DuBose for his driver’s license, which he never produced. In a split second, the video turned violent, and the footage shaky: Mr. DuBose pulled the door closed with his left hand and restarted the car with his right hand; Mr. Tensing reached into the car with his left arm, yelled “Stop!” twice and with his right hand fired his gun once, into Mr. DuBose’s head.

“You point a gun that close to somebody’s head and you pull the trigger, your purpose is to end their life,” a prosecutor, Seth Tieger, said in his closing argument on Monday, as he described the video as a crucial piece of evidence.

But the footage of those seconds was jerky and blurred, and prosecutors had to slow it down, with the aid of a forensic expert, in their effort to counter Mr. Tensing’s contention that his arm had felt stuck in the steering wheel and that he had shot Mr. DuBose because he believed he was going to be dragged by the car.

“There was no danger to Ray Tensing when he made the decision to go for his gun,” Mr. Tieger said.

Indeed, the video had contradicted Mr. Tensing’s initial claim that his arm had been caught in the steering wheel. But Mr. Tensing’s lawyer, Stew Mathews, said that the analysis of the video amounted to “20/20 hindsight,” and that what mattered was Mr. Tensing’s stated belief, in the moment, that Mr. DuBose was a danger to him because his arm was stuck somehow and that he had to shoot to “stop the threat.”

“The body-worn camera, in and of itself, is not the only piece of evidence,” Mr. Mathews said, before appearing to shift the blame to Mr. DuBose himself, saying that he had “started this whole situation.”

“You have to try to put yourself into the position of an officer on the scene of a situation like this,” Mr. Mathews told the jury, “and ask yourselves, ‘What would I do?’”

The jurors may have come to their conclusions less because of what they saw on screen than because of what they believed was in Mr. Tensing’s mind in those critical seconds.

“I suspect that the more ambiguous a video is, the more that you need a forensic expert to explain to a jury exactly what it shows, the more likely a jury is to think the officer’s perception was reasonable,” said Seth W. Stoughton, a law professor at the University of South Carolina and a former police officer.

Mr. Stoughton described a possible juror’s reasoning: “If I needed an expert to explain that to me, how could the officer have made sense of the situation at the time?”

Mr. Tensing, who was 25 at the time of the shooting, was fired by the University of Cincinnati after being indicted on a murder charge for killing Mr. DuBose, 43. The university also agreed to pay Mr. DuBose’s family $4.85 million and to educate his 12 children.

Civic leaders had eyed the case warily, knowing that when a white officer shot an unarmed black man there in 2001, rioting followed. But as rain fell outside the courthouse on Friday, the dozens of demonstrators gathered under umbrellas did so peacefully, citing the video as they vented their frustration at a second mistrial.

“It’s a straight-up video,” said one demonstrator, Destiny Brooks, 16. “He reached on his side and shot that guy.”

Barry Kowalski, a former federal prosecutor who won convictions against some of the police officers who were taped beating Rodney King in Los Angeles in 1991, said the proliferation of video had increased pressure on prosecutors to announce indictments against police officers — sometimes after only days of investigation.

“Rather than take the time to look carefully at the case and take the heat from the community,” Mr. Kowalski said, “prosecutors bring the case and then they’re off the hook, they brought the case, and now it’s the jury’s problem.”

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