Tensing retrial: Judge, advocates seek more racially diverse juries
Corrections & Clarifications: An earlier version of this story had the incorrect last name for a member of the Black Lawyers Association. He is Rodney Harris.
CINCINNATI — With the Ray Tensing retrial beginning, civil rights and black advocacy groups want Hamilton County to take a step that could increase the diversity of juries.
These groups would like to see Hamilton County join the growing roster of courts across Ohio that use lists of licensed drivers to help form pools of potential jurors.
Ohio is one of just a few states requiring citizens to be registered to vote if they want to serve as a juror. Common pleas courts in each of the state's 88 counties have authority to expand pools beyond the list of registered voters.
Melba Marsh, presiding and administrative judge of Hamilton County Common Pleas Court, would like to see Ohio adopt a statewide system, similar to Indiana and Kentucky, that uses multiple lists.
Related:
Retrial of Cincinnati ex-cop in shooting of black motorist pushed to May 25
Tensing attorney: 'I'm so upset...I can't see straight'
"It needs to be, 'Everybody in.' That's the only way the system works," Marsh said Thursday.
Kentucky law, for example, calls for blending three sources lists — voter registrations, driver's licenses and state income tax filings for people 18 and older.
Indiana, in 2005, merged lists from the state's bureau of motor vehicles, supreme court, jury committee and departments of revenue and health, creating a master list that consisted of 99.93% of the state's population that was age 18 and older. A central repository of the Indiana Statewide Jury Project then delivers a secure list of unduplicated names to each of its 92 counties.
Marsh said she plans to speak to Hamilton County's 15 other common pleas judges about the Indiana model and will write letters to legislators proposing a "top-down, statewide system."
"That way," she said during an Enquirer interview, "people can look in the jury box and see young, old, male, female, black, white. Twelve other people who live under the same laws as they do. You've inspired me to do this."
Short of a statewide initiative, Marsh said she would push for change in Hamilton County.
Precedent exists. Common pleas courts in eight Ohio counties and in dozens of municipal courts now use blended lists to summon prospective jurors, according to the Ohio Jury Management Association, a non-profit for court personnel based in Columbus.
Talk of expanding Hamilton County's jury pool source lists has grown louder with the approach of Tensing's retrial. It was discussed in great detail in two pretrial public forums sponsored by the Black Lawyers Association of Cincinnati.
On Thursday, 200 potential jurists filled out questionnaires at the Hamilton County Courthouse. A pretrial hearing is scheduled for Friday.
Tensing, a former University of Cincinnati police officer, faces murder and voluntary manslaughter charges in the shooting death of unarmed black motorist Sam DuBose in 2015. Tensing pulled over DuBose in Mount Auburn for a missing front license plate, a traffic stop that escalated quickly before Tensing fired a single shot into DuBose's head.
Tensing testified in his first trial, which ended Nov. 12 in a hung jury, that he feared for his life when DuBose tried to drive away during a July 2015 traffic stop.
Motions pending Friday before Hamilton County Judge Leslie Ghiz include challenges to planned expert testimony on body camera video.
His attorneys want to block from the trial a T-shirt depicting a Confederate battle flag that Tensing wore under his uniform, saying it was irrelevant but could be inflammatory.
"The way we're doing it is not the best," said Rodney Harris , a member of the Black Lawyers Association, which advocates for the use of additional source lists.
"Something needs to be looked at," added Harris, who has researched the issue as a member of the organization's community action committee. He is director of the felony division in the Hamilton County Public Defender's office.
The jury in the first Tensing trial consisted of six white men, four white women and two black women. Hamilton County Prosecutor Joe Deters said a straw poll of jurors after the mistrial showed that they voted 10-2 to convict Tensing of manslaughter.
Civil rights advocates would like to see the county's juries fall more consistently in line with its overall population; they say that's not the case now.
"We, as African-Americans, have to be willing to serve when we're called, but the pool needs to be expanded to bring more of us into the process," said Joe Mallory, first vice president of the Cincinnati NAACP branch.
Of Hamilton County's 809,099 residents, 211,984 or 26.2% are African-American, according to Census Bureau estimates. Whites make up 555,851 or 68.7% of the county.
The county has 581,411 registered voters 18 and older and 620,520 residents 18 and older. So about 39,000 people are old enough to vote but are not registered. If they were brought into the jury pool through other source lists, on average, about 1 in 4 of them would be African-American.
The current format of using a single public records source list has supporters as well as its detractors.
State Sen. Cecil Thomas, a North Avondale Democrat, said he plans to introduce legislation in the General Assembly this fall that would require counties to use driving and state ID records when picking jurors.
"The argument we hear against it is that they get a sufficiently diverse pool," Thomas said. "But we end up consistently seeing a discrepancy in the jury selection process."
Bishop Bobby Hilton, the senior pastor of Word of Deliverance Ministeries in Forest Park, who attended the first Tensing trial, agrees with Thomas that changes need to be considered.
"Hamilton County should use additional options available to expand jury pools," said Hilton, president of the local chapter of the National Action Network, the civil rights organization founded by the Rev. Al Sharpton. "The optic of diversity and fairness with juries should be a priority."
Related:
Black motorist's family after mistrial: 'Sam we are fighting for you'
Judge declares mistrial in case of Ohio officer who killed black man at traffic stop
Hamilton County Common Pleas Judge Steve Martin favors keeping the jury selection process the same.
"I think we use the best system we can to get the most representative group," he said. "Registering to vote is absolutely free, so it does not skew" to either extreme of the economic spectrum.
Martin said he is concerned that using driver's licenses would place a financial burden on some low-income citizens.
A four-year Ohio driver's license costs $23.20 for people 21 and older. Non-driving state identification cards cost $8.50.
Ohio's Bureau of Motor Vehicles does not track licensed drivers and non-driving state ID holders by race. But the bureau does track licensed drivers and ID holders by ZIP code. In ZIP code 45229, which covers the predominantly black Avondale neighborhood and surrounding areas, 5,811 people 18 and older are licensed drivers. Another 3,363 people 18 and older have non-driving state ID cards.
Sociologists nationwide who've studied the diversity of jury pools and juries say economics are a reason many African-Americans and some other low-income people try to avoid serving. Hamilton County courts pay $19 a day to jurors. Oftentimes, workers have jobs that do not pay if they don't show up.
Requiring a list drawn from both voter registration and driver's license records is law in most states.
Diverse juries are important, say advocates and judicial watchdogs.
A 2012 study by Duke University shows that all-white juries convicted black defendants 16% more often than those that had at least one black member.
In 1999, a report commissioned by the Ohio Supreme Court and the Ohio State Bar Association recommended that counties use driver's license, state IDs and other appropriate public records to expand jury pools. Common Pleas Judge Marsh was a commission member.
"It's not a matter of a guilty person going free," said Black Lawyers Association member Harris. "It's a matter of preventing an innocent person from being convicted."
Contributing: The Associated Press. Follow Mark Curnutte on Twitter: @MarkCurnutte