Prosecutors in Ohio and South Carolina plan to take another crack at prosecuting former police officers involved in controversial shootings last year.
There was a mistrial declared November 12 in the trial of Ray Tensing, the former University of Cincinnati police officer who shot and killed Sam Dubose. The jury could not come to a unanimous decision for guilt or acquittal on either murder or manslaughter charges.
A judge in the case against Tensing set a Monday hearing on a timetable for a retrial, reported ABC News.
In South Carolina, a jury there remained deadlocked in the trial against Michael Slager, the former North Charleston officer charged with murder in the on-duty shooting of Walter Scott. The judge declared a mistrial Dec. 5. The prosecutor pledged to re-try Slager.
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.
Moreover, juries are likely considering actions taken by DuBose and Scott that ultimately led to their demise, something the court of public opinion has overwhelmingly ignored. They are being educated that determining the appropriate level of force without the benefit of hindsight is difficult. And while there are clearly other options, they are finding it difficult to convict for murder.
“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 each trial, the former officers testified in their own defense, saying they had reason to believe their life was in danger. Tensing believed he could be killed by DuBose’s car as the man tried to drive away. Slager said Scott wrestled his Taser from him, placing him in peril.
“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 is aware of that has 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.
Absent from the public discussion is the burden of proof placed upon the prosecutor to prove the elements of the crime; foremost “malice aforethought.” This wording is included in the murder statute in South Carolina, while Ohio’s statute reads,”purposely cause the death.” Either way, trying to prove beyond a reasonable doubt that an on-duty police officer had this level of criminal culpability is very difficult.
Simply because a video clip appears to be unfavorable to the officer, does not mean an emotional response from militant activists equates to the criminal act of murder as believed by the uninformed.