Facing uphill battles to find jurors willing to convict police officers, prosecutors in two states say they will try again to win guilty verdicts against white officers in the fatal shootings of black men.
A judge in the case against former University of Cincinnati police officer Ray Tensing set a Monday hearing on a timetable for a retrial. Jurors couldn't reach a verdict on murder and voluntary manslaughter charges against him in the death of Sam DuBose, and a mistrial was declared Nov. 12.
A South Carolina jury deadlocked Dec. 5 on the same charges against Michael Slager, a former North Charleston officer. The prosecutor also pledged to try Slager again for the death of Walter Scott.
Legal experts say the mistrials underscore the difficulties prosecutors face in police cases, with many jurors unwilling to second-guess officers' split-second reactions when they claim to be in danger.
"Juries tend to give police officers the benefit of the doubt," said Mike Allen, a Cincinnati attorney and former prosecutor. "You can argue till the cows come home whether that's right or not."
In both trials, the former officers testified in their own defenses and said they feared for their lives. Tensing, 27, said he believed he could be killed by DuBose's car, as the 43-year-old man tried to drive away after he was stopped by Tensing in July 2015 for a missing front license plate. Slager, 35, said the 50-year-old Scott wrestled his stun gun away and pointed it at him after he stopped Scott for a broken tail light in April 2015.
Prosecutors said evidence including Tensing's bodycam video contradicted his story. A bystander's cellphone video showed Slager shooting Scott five times in the back, video that was widely seen and further inflamed national debate about how police treat blacks.
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"Even in the most egregious cases, it takes an awful lot to get a jury to convict a police officer," said Philip Stinson, a Bowling Green (Ohio) State University criminologist who tracks police shooting cases around the country. "They just don't want to believe that a police officer can be capable of murder."
The only police officer Stinson knows of who's been convicted of murder by a jury for an on-duty shooting since he began compiling statistics in 2005 is James Ashby. The former small-town Colorado officer was sentenced to 16 years in prison after a jury in June convicted him of second-degree murder for fatally shooting Jack Jacquez in the back in 2014 after following him into the home of the slain man's mother.
By Stinson's count, 78 officers have been charged with murder or manslaughter in on-duty shootings since the beginning of 2005. Those cases resulted in 27 convictions on at least one charge, 14 in jury trials. Thirty ended without convictions, including 15 jury acquittals. Twenty-one, including Tensing and Slager, are pending trials or potential retrials.
Hamilton County Prosecutor Joe Deters said he wants to move the Tensing case to another Ohio county, away from intense local attention he believes added pressure to jurors who at one point refused to come out of the jury room because of fears about being identified publicly.
It seems unlikely Hamilton County Judge Leslie Ghiz, who took over the case after the first trial judge recused herself, would agree to move the trial without first trying to seat a jury in Cincinnati. Changes of venue are rarely granted and are usually sought by defense attorneys who feel their clients have been subjected to prejudicial publicity.
Regardless, Allen said, prosecutors will be going against jury tendencies in police shooting cases.
"I do understand the prosecutor's desire to move the trial, but I think it's probably going to be the same in any jurisdiction," he said.