Op-Ed: Arcane OH Self-Defense Law Leaves Officer at Risk of Conviction

Editor's Note: Since this article was written, a mistrial was declared in the court case discussed below, and prosecutors have announced that they will retry the case.

Today is the third day of deliberations in the murder/manslaughter trial of police officer Ray Tensing, and this afternoon Judge Megan Shanahan once again sent the jury back to deliberations after they told her that they were still unable to arrive at a unanimous verdict.

Ray Tensing, you may recall, is the Univesity of Cincinnati police officer who shot and killed black motorist Sam DuBose when the driver attempted to flee a traffic stop after refusing to show the officer a driver’s license. The events were captured in a rather shaky maneer on Tensing’s bodycam, as we covered way back in July of 2015: Sam DuBose Shooting: Let’s Go to the Video Tape.

We obviously don’t yet know what the verdict, if any, will be, and I’m not here to address the merits of the case again–although it doesn’t appear that my assessment in the July 2015 post is subject to any real change.

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.

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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.

...[I]t is almost certainly the case that Tensing remains in legal jeopardy in this trial only because of the arcane self-defense burden-of-proof requirements of that lone hold-out state, Ohio.

Click here to read this excellent article in its entirety at LegalInsurrecton.com.