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Prosecutor's desire to move trial is unusual

Observers say they're surprised that an Ohio prosecutor wants a change of venue in the retrial of a

By DAN SEWELL Associated Press Published: November 28, 2016 4:00 AM
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CINCINNATI -- A prosecutor's widely expected decision to retry a white former police officer on a murder charge in the traffic-stop shooting of a black man came with the surprise that he wants to move the next trial out of the Cincinnati area.

Hamilton County Prosecutor Joe Deters announced plans for the request on Tuesday as he said he would try fired University of Cincinnati officer Ray Tensing on the same charges on which jurors deadlocked. A judge declared a mistrial Nov. 12 after jurors remained hung after 25 hours of deliberations. The charges are murder and voluntary manslaughter in the July 19, 2015, fatal shooting of Sam DuBose.

Deters says he wants a jury in another Ohio county, away from intense local attention.

It's very rare for a prosecutor to ask for a change of venue, usually sought by defense attorneys who think a fair and impartial jury can't be seated, legal experts say.

One veteran Cincinnati attorney called it "a blockbuster move" by Deters.

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"I've been practicing law since 1989, and I've never, ever, had a prosecutor request a change of venue," said attorney Carl Lewis.

Jurors in the racially charged case were scared of being identified, even revolting and refusing to come out of the jury room at one point, Deters said. Prosecutors talked to some of the jurors after the mistrial, and Deters said prosecutors think the intense local attention could have "seeped into the jury room."

Martin Pinales, a Cincinnati attorney and a former president of the National Association of Criminal Defense Lawyers, said he expected Deters to retry Tensing on murder charges because of local political pressure, but was "a little surprised at the change of venue."

Pinales said changes of venue are meant for when "a defendant cannot get a fair trial." Judges often will try to seat a jury before agreeing to move a trial.

Hamilton County Common Pleas Judge Megan Shanahan has scheduled a hearing Monday morning. Shanahan might ask Deters what has changed since the first jury selection, Lewis said.

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"But I think what the prosecutor is going to say is that the change is that the jurors fear for their safety and the fact that it's been a hung jury, that changes the complexity of the case, and for that reason, those changes in circumstances warrant a change of venue," Lewis said.

Tensing's attorney, Stewart Mathews, said he didn't have an immediate position on the moving the trial but would lean against it for various reasons including logistical and financial hardship.

It was Mathews who unsuccessfully asked the judge to move the first trial because of prejudicial pretrial publicity, including comments by Deters and other local officials. He noted after Deters' announcement Tuesday that it was possible for a jury in Hamilton County to be seated for the first trial and doesn't see a reason why another fair and impartial panel couldn't be.

Tensing testified that he feared for his life when DuBose tried to drive away. Mathews said DuBose tried to use his car as a deadly weapon. Deters repeated last week that he believes the shooting wasn't justified and the evidence contradicts Tensing's story.

DuBose family members, the Cincinnati City Council and groups including faith leaders had called for a new murder trial.

City Councilwoman Yvette Simpson said that while a venue change would be logistically challenging, it could "provide a better opportunity for a fair and impartial trial, and hopefully, a unanimous verdict."

The case is among those across the country calling attention to how police deal with blacks. A trial is set to resume Monday in Charleston, South Carolina, for a since-fired white patrolman, Michael Slager, facing 30 years to life if convicted of murder in the death last year of a black man, Walter Scott, shot while running from a traffic stop.

Associated Press writer Lisa Cornwell contributed to this report. Follow Dan Sewell at http://www.twitter.com/dansewell. For some of his other recent stories: http://bigstory.ap.org/content/dan-sewell.


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