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Lady Justice Wears a Blindfold

After the Ray Tensing trial resulted in a second mistrial, the Cincinnati Enquirer ran an article titled, “The black community wants justice.  What does it look like?” by   Mark Curnutte.  In it, the author discussed the community’s reaction to the mistrials. “People, African-Americans, do not believe in the process” said one of the interviewees in the article.  Last night, protestors again took to the streets in Over The Rhine demanding a third trial and that Ray Tensing be put in jail.  Black Lives Matter frequently chants, “No Justice, No Peace.”  It seems only a conviction of Ray Tensing will bring the justice these groups seek.

Many people believe the body camera footage of Tensing shooting DuBose should be enough to convict Tensing.  However, in both trials, the juries were unable to reach a unanimous verdict despite video evidence and vigorous prosecutions.  In my opinion, the reasons lie not with what is justice, but the very elements of the charges against Tensing that must be proven by the prosecution.

A homicide occurs any time a person kills someone else, regardless of intent or other factors.  A homicide is different than the statutory definitions for murder and manslaughter.  Here, there is no question a homicide occurred.  Yet, the charges against Tensing defines how the aforementioned groups see justice.  The article by Mark Curnette demonstrates this point very well.

Shortly after Mr. DuBose’s death, Hamilton County Prosecutor Joe Deters announced his intent to charge Tensing with murder (although a lesser charge of voluntary manslaughter was also included in the indictment).  This decision received applause from some and criticized by others for over-charging Tensing.  Murder may be too much to ask twelve people to come to agreement in this instance.

During the second trial, the prosecutor asked the judge to include an instruction of an even lesser charge, reckless homicide.  This request was denied.  Consequently, the juries have only had two counts to consider during deliberations: murder and voluntary manslaughter.   This is where the statutory definitions are important as they determine what the juries were able to consider during deliberations.

Murder requires the prosecution to prove beyond a reasonable doubt that Tensing purposefully caused the death of Mr. DuBose.  See, O.R.C. 2903.02.  Voluntary manslaughter requires the prosecutor to prove that that the defendant experienced a sudden passion or rage that motivated Tensing to draw his weapon and shoot DuBose.  See, O.R.C. 2903.03.  Again, the prosecution must establish these elements beyond a reasonable doubt.

The phrase “reasonable doubt” is critical here because that is the standard of proof the prosecutor must meet for a conviction.  It is the highest standard of proof because a defendant loses his or her freedom if a judge or jury determine guilt beyond a reasonable doubt.  This is a standard firmly rooted in the law of the United States.  In 1970, United States Supreme Court Justice William J. Brennan, Jr. wrote “a fundamental value determination of our society is that it is far worse to convict an innocent man than to let a guilty man go free.”  In re Winship (1970), 397 U.S. 358, 90 S.Ct. 1068, 25 L. Ed.2d 368.

If a judge or jury has reasonable doubt as to a defendant’s guilt, then the defendant should be found not guilty.  Conversely, if a judge or jury have no doubt as to a defendant’s guilt or only have unreasonable doubts, then the prosecutor has established the necessary elements for the charged offense beyond a reasonable doubt.  In both trials, the juries were unable to come to a unanimous decision and found themselves deadlocked or “hung”.  As the juries were unable able to agree on a verdict the judges declared mistrials.

In the first trial, the jurors were said to be leaning toward an acquittal on the murder charge and leaning more toward a conviction on the lesser charge of voluntary manslaughter.  The second jury indicated it was almost evenly split.  Only four jurors thought Tensing was guilty of murder and eight wanted to acquit him of the charge.  In a similar fashion, five jurors believed Tensing was guilty of voluntary manslaughter and seven felt he should be acquitted.

The second jury was also split on whether Tensing was in reasonable fear of death or great bodily harm that necessitated the use of use of force.  Tensing testified his intent was to end a threat he perceived at the time.  The events lasted a matter of seconds on video.  Again, the jury could not reach a unanimous consensus.

There is no question police officers put their lives on the line every time they go on patrol.  They simply have no idea who or what they may come upon when approaching a vehicle or people on the street.  My point here is to question whether there is any way “justice” may be universally achieved.  To this issue, I think it varies depending each person’s view of the world.

Our system only works if we recognize a jury reflects who we are as a community. It is made up of people randomly selected from the voter registration and whittled down to 12 jurors (with an alternate or two).  Both prosecutors and defense counsel work to find a jury that can render a verdict as to the issues before them.    Neither side wants a mistrial.

The juries have been split on two separate occasions despite hours of deliberations and their best efforts to deliver a verdict.  I am not confident a third jury can overcome the hurdles given the prior results.  It is unlikely another jury will have twelve jurors who will overcome the divide to result in a unanimous result (either for guilt or innocence).

Lady justice wears a blindfold suggesting that justice is or should be awarded objectively, without consideration of race, wealth, or political stature.  The mistrials are not because justice was denied.  They were declared because each jury simply could not unanimously agree on a verdict.  Clearly some jurors believed Tensing to be guilty, but this sentiment was not universally shared.  Although the juries haven’t found Tensing guilty they also haven’t found him innocent.  Perhaps, in the end, that is the closest we will get to justice?



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