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What The Tensing Trial Sidebar Conversations Reveal

Cara Owsley
Judge Ghiz and attorneys holding a sidebar during testimony from Cincinnati police officer and crime scene investigator Jimmy Pham on June 12. Court records show they discussed which images of DuBose's body would be allowed during Pham's testimony.

Court documents unsealed this week reveal some of the 'behind-the-scenes' conversations that took part during Ray Tensing's second trial. More documents are expected soon detailing in-chamber discussions, too.Tensing was charged with murder and voluntary manslaughter for the 2015 shooting death of Sam DuBose. Two juries failed to reach verdicts and the charges were dismissed Monday. A federal civil rights violation investigation continues.

Transcripts of the sidebar conversations tell what was discussed at various points during the trial when Judge Leslie Ghiz met with assistant prosecutors Seth Tieger and Stacey DeGraffenreid and defense attorney Stew Mathews.

The first documents show the prosecution was concerned about the number of African-Americans the defense was dismissing during jury selection. Twice prosecutors requested Mathews give race-neutral reasons citing Batson v. Kentucky, the Supreme Court decision that says one can't use a peremptory challenge (a challenge where no reason is needed) to exclude a potential juror based on race, ethnicity, or sex. Mathews argued Batson didn't apply, but gave reasons anyway, which Judge Ghiz accepted in allowing the jurors to be dismissed.

The documents also show what was said after prosecutors objected to defense questioning of Cincinnati Police Sgt. Shannon Heine, a prosecution witness. Her testimony - that she believed Tensing was likely justified in shooting DuBose - triggered a police investigation that ultimately found she did nothing wrong, despite assistant prosecutor Seth Tieger's strong criticisms during closing arguments.

THE COURT: In my opinion, that can be brought in because she had an opinion, and they typically will provide the opinion to the Prosecutor's Office, and she did say she gives input to the Prosecutor's Office.
MR. TIEGER: Judge, I mean, I -- I would be -- it would be extremely improper of me ever to ask in a murder case of a homicide detective, Do you think he did it? You can never --
THE COURT: But that's what she's saying. You're asking -- she said what her input was to the prosecutor.
MR. TIEGER: No; that wasn't the question.

The defense ultimately withdrew the question about whether Heine thought Tensing's shooting of DuBose was justified, and the judge let Heine's stated opinion stand.

Several conversations revolved around what images of Sam DuBose's dead body and head wound jurors would be allowed to see. The defense argued the images would be too prejudicial. Judge Ghiz excluded several more graphic images over objections from prosecutors, but allowed a few others telling prosecutors, "Don't keep it (on display) long."

During testimony, Ghiz appeared unsettled at times by the graphic images. One exchange shows she initially chose to allow one set of images of the gunshot wound to DuBose's head, before changing her mind and ruling them out.

THE COURT: I'm really torn about these last couple pictures. You need to warn them, and they better be up there for a second.
MR. TIEGER: Sure, Judge.
THE COURT: Make sure they're prepared for that, because I don't see those being -- I can't -- I just -- I'm struggling to allow those in, so you better make sure they're up for a limited time and they're ready for it.
MR. MATHEWS: Again, I'll take one more opportunity to object.
THE COURT: Why does she need to have those? They're -- come on.
MR. TIEGER: Judge, again, the bullets went through the head and through the brain.
THE COURT: She can show that with the other picture of the head. You know what? I'm going to exclude those. I don't want those up.

Throughout the trial, the defense sought to portray DuBose as a drug dealer. There was a lengthy discussion about how much information would be allowed related to the amount of marijuana found in DuBose's car and in his system.

In a pretrial hearing before Tensing's first trial, an expert testified that there's no clear scientific way to know when DuBose ingested the marijuana THC found in his system. First trial Judge Megan Shanahan ruled the evidence inadmissible. Ultimately, the information was not submitted to the jury, but it was made clear DuBose had various substances in his system at the time of his death.

The other drug-related sidebar revolved around the amount of marijuana and other medications found in DuBose's car. Assistant prosecutor Stacey DeGraffenreid objected arguing in the sidebar, "(Mathews) wanted to insinuate that there was some felony charge. Tensing didn't even know the marijuana was in the car when this all occurred, so whether it would be a felony or a misdemeanor charge doesn't matter."

Ghiz allowed the witness' testimony because he's "not saying (DuBose) would have been charged with it. It sounds to me like he's simply giving the levels."

Three conversations involve witnesses requesting not to be photographed. All three requests were granted. Prosecution witness Alicia Napier said she worried about her safety; a police officer said he works undercover; and Dr. Karen Looman in the Hamilton County Coroner's Office said she wasn't in fear for her safety, but simply would "rather not end up on YouTube, which happened the first time."

Senior Editor and reporter at WVXU with more than 20 years experience in public radio; formerly news and public affairs producer with WMUB. Would really like to meet your dog.