Controversial Souvenir T-shirt Not Allowed as Evidence in Police Officer's Retrial

The State of Ohio vs. Raymond M. Tensing case will not feature juror views of this controversial T-shirt. (Image via Ally Kraemer, Twitter)

Prosecution and defense teams often crave swift justice, but the lawyers who are handling the State of Ohio vs. Raymond M. Tensing case are approaching two years of litigation. On Tuesday, all set to begin jury selection, the attorneys learned their wait for resolution will last even longer. However, whenever they present evidence in the retrial of Tensing, a police officer who shot and killed unarmed African-American motorist Samuel DuBose during a July 2015 traffic stop, they will not argue the relevance of the souvenir T-shirt that the former University of Cincinnati police officer wore that fateful day. Judge Leslie Ghiz ruled Friday that the item is "too prejudicial to the jury."

The garment, which Tensing testified last fall came from a relative who had visited Tennessee’s Great Smoky Mountains National Park, has proven controversial because it features the flag of the Confederate States of America, the 11 states dubbed “the South” in the American Civil War. Given the slave-holding status of those breakaways, depictions of the thread-based symbol continue to cause contemporary discomfort, and jurors in the initial trial, which ended without a unanimous verdict, saw the shirt that Tensing said meant nothing to him.

Defense attorney Stew Mathews, whose May 1 motion claimed jurors do not need to see the apparel because it “contains nothing of evidentiary value, is irrelevant and highly inflammatory,” reiterated that stance Friday by saying the item was part of a plan to make race a central element of the proceedings.

“If it had been … an all-black T-shirt that said ‘All people are God’s children,’ I still would exclude it,” Ghiz said in noting the prejudicial value “far outweighed” the potential evidentiary value.

The uncertainty surrounding the retrial has led the judge to gain a bit of notoriety in the last six days. Along with prohibiting inspection of the shirt, the Hamilton County figure sought to prevent the presence of photography and the use of electronic media during jury selection and indicated opposition to releasing juror questionnaires until the trial’s conclusion regardless of redacted names and identifying information. On Tuesday, following a meeting with Mathews and the prosecutors, she decided to release the initial 46-person pool of possible jurors and revoked the Friday orders.

“The court of appeals put a decision out that said my order restricting the media access to the jurors, the juror questionnaire, was invalid as a matter of law,” Ghiz declared the same day. “As a result of that, I am not bringing the jury in until I can figure out how we do it in a different manner.”

Those utterances led to an emergency hearing set for today. The sudden alteration to the retrial timeline means that inhabitants of the Queen City, who have expressed an interest in having the case concluded, will need extra patience when wondering what their peers will decide for Tensing, who contends he shot DuBose when he felt the driver, in starting his engine, had begun to drag him.

“The family’s very upset that the case is being delayed,” Al Gerhardstein, representing the deceased’s family, said. “They would like to see that the legal system can even hold a police officer accountable, and now we can’t even get the trial started.”