Ray Tensing, the former University of Cincinnati police officer who shot motorist Sam DuBose in the head from point-blank range as DuBose tried to drive away, has avoided conviction… at least for now.

Former University of Cincinnati’s police officer Ray Tensing was charged with murder and voluntary manslaughter for shooting Sam DuBose during a traffic stop in July 2015.

The jury was directed to consider murder first during deliberations. If they were unable to reach a verdict, or if they found Tensing not guilty, they were to move on to voluntary manslaughter.

The jury could not reach an unanimous decision on either charge, they told the court. Judge Megan Shanahan declared a mistrial and thanked the jury for their service. She also told them that they are now allowed to discuss the trial.

Hamilton County Prosecutor Joe Deters said he thought the jurors did their best and pointed out that the trial involved a great amount of evidence and was a complicated case.

He added jurors were leaning toward a lesser conviction of voluntary manslaughter and acquittal on the murder charge, but they could not reach agreement.

The jury listened to about five days of testimony in Tensing’s trial. He’s charged with murder and voluntary manslaughter, though the jury was instructed that he may only be convicted of one or none — not both charges.

As Andrew Branca has noted, Tensing would have a solid self-defense case in just about any other state, but Ohio has unique laws governing the use of deadly force.

Rather, I’m writing to note that had this trial been taking place in any state other than Ohio, Officer Tensing would already almost certainly have been acquitted, or at the very least be even further from a conviction than he is with this current Ohio jury.  The only reason for this is because the trial is taking place in Ohio, and Ohio is the last state to retain a very arcane burden of proof in self-defense cases.

Tensing is charged with murder (and the lesser included charge of voluntary manslaughter, murder under adequate provocation).  Both are intentional killing offenses.

Tensing’s defense centers on self-defense, essentially: yes, I shot Sam Dubose and I did so deliberately, but I did so in necessary defense of my life.  In this case Tensing specifically argues that DuBose was using his vehicle as a weapon to threaten Tensing with imminent death or grave bodily harm, the degree of threat required to justify Tensing’s shooting of DuBose.

Given that Tensing is charged with a deliberate killing offense and that he has raised the legal defense of self-defense, the question naturally arises:  who has the burden of proving/disproving self-defense, and by what standard of proof (amount of evidence)?

In forty-nine states, all but Ohio, once a defendant has raised the legal defense of self-defense it becomes the responsibility of the prosecution to disprove self-defense beyond a reasonable doubt. There’s not accepted mathematical figure for how much evidence constitutes “beyond a reasonable doubt,” but it is an overwhelming majority of the evidence. For purposes of illustration let’s pretend it means 90% of the evidence.  So to defeat self-defense in 49 states, the prosecution must come up with 90% of the evidence in its favor.

In Ohio, on the other hand, once a defendant has raised the legal defense of self-defense it remains the defendant’s obligation to prove self-defense by a preponderance of the evidence.  For purposes of illustration, let’s pretend that means simply 51% of the evidence.  Of course, as a practical matter if the defense must prove self-defense by 51%, that’s just another way of saying the prosecution needs to disprove self-defense by 50%–just enough to deny the defense it’s 51%.   If the prosecution can disprove self-defense by even 50% of the evidence they’ve prevented the defense from meeting it’s obligation, and the claim of self-defense fails.

The fact that the Ohio jury in the Tensing trial has not yet come to a verdict means that there is at least one jury who does not believe that the prosecution has disproved Tensing’s claim of self-defense by 50%–if they did believe the prosecution had done so, then self-defense would have failed, and given that Tensing necessarily admitted to deliberately shooting DuBose there is no rational basis on which to find him other than guilty of either murder or manslaughter.

We’ve consistently held that Hamilton County Prosecutor Joe Deters grossly overcharged Tensing when he decided to charge him with murder, when this shooting was either manslaughter at worst, or a legitimate case of justified self-defense.

The jury deadly locked on whether Tensing should be convicted of murder or manslaughter, not that he a viable self defense case.

Prosecutors are likely to retry Tensing, but if they want a conviction they need to drop the absurd murder charge, and focus on the correct charge of voluntary manslaughter only.