Judge Megan Shanahan ordered a mistrial in the Ray Tensing murder trial Saturday morning after the jury said it couldn't reach a verdict despite more than 25 hours of deliberations.
Tensing was a University of Cincinnati police officer who shot and killed an unarmed black man named Sam DuBose on July 19, 2015. The shooting happened after Tensing had pulled DuBose over for driving without a front license plate.
The jurors deliberated for two hours starting at 8 a.m. -- their fourth day on the task -- and then informed Shanahan they still could not reach a unanimous agreement on the two charges against the former University of Cincinnati police officer. Tensing was charged with murder and voluntary manslaughter for shooting DuBose.
Outside the courtroom, Prosecutor Joe Deters said he was "obviously disappointed." He said the jury was "leaning toward acquittal" on the murder charge and "leaning toward conviction" on voluntary manslaughter, "but they just couldn't come to an agreement."
Asked if he would retry Tensing, Deters said he "would go through a process to analyze the probability of getting a conviction. If I believe we can win, I'll retry the case."
Deters said he hoped to make a decision by a Nov. 28 hearing scheduled by Shanahan.
Civil rights attorney Al Gelhardstein said DuBose's family was "incredibly disappointed. They're really upset and they certainly want another trial." He said the family wasn't notified that the judge's decision was coming in time for them to get to the courthouse.
A new trial would mean starting over with a new jury. Deters has the option to file new charges or to drop charges altogether.
Deters said he would not file lesser charges, and he disagreed when reporters suggested he overreached on the charges -- that he should have tried Tensing for reckless homicide or negligent homicide instead.
"We thought we proved murder," Deters said, citing the prosecution expert's frame-by-frame breakdown of Tensing's body camera video.
"I can say unequivocally that charges would never have been filed" if there wasn't a body cam video to show what happened.
Deters said former Judge John West presented the case to the grand jury and the grand jury returned the charges of murder and voluntary manslaughter.
"We put a ton of time, money and effort into this," Deters said. "I'd be lying if i told you I wasn't disappointed."
Shanahan lifted her gag order and said attorneys and jurors were free to talk to anyone about the case. Deputies ushered the jurors out of a rear door. Tensing and his family left out of a side door and also avoided the media.
Tensing did not show any reaction when Shanahan announced her decision.
Outside the courtroom, Bishop Bobby Hilton called for a new trial and asked the public to "stand by" and keep demonstrations peaceful.
Shanahan might have declared a hung jury Friday after the jurors informed her before noon that they were deadlocked. But she ordered them to continue and sequestered them for a third straight night.
By the next morning, the judge was willing to accept they wouldn't be able to agree.
One of DuBose's daughters, Teala Williamston, told WCPO Thursday that the long wait for a verdict had been hard on the family. She said there wouldn't be justice without a murder conviction.
"There's a lot of emotions going on - happy and sad because we don't know which one we're going to get. We hope in justice," she said, "but knowing how the court system works these days, there's no telling what's going to happen."
A murder conviction would have carried a sentence of 15 years to life. Involuntary manslaughter would have been three to 11 years.
To get a murder conviction, the 12 jurors – two blacks and 10 whites - would have had to agree that Tensing purposely killed DuBose and he was not justified in his use of deadly force.
While they deliberated, the jury sent several questions to the judge that suggested they were hung up over "use of force" law and the conflicting testimony from both sides over whether the shooting was justified.
When Shanahan charged the jury, she explained that, by law, murder is a purposeful killing; voluntary manslaughter is committed in rage or passion when a person thinks he or she is in danger of death or serious bodily harm.
Tensing was on one-man patrol when he stopped DuBose for driving without a front license plate on a city street in Mount Auburn around 6:30 p.m. on July 19, 2015. Another shooting of an unarmed black motorist by a white officer drew attention around the world. Millions of people have viewed the body cam video on the web and TV.