Prosecutors in the case against Ohio police officer Ray Tensing argued that the confederate flag T-shirt he was wearing under his uniform when he fatally shot an unarmed black man was relevant evidence and should be included in the upcoming murder retrial.
Attorneys for Tensing attempted to keep the "Great Smokey Mountains" T-shirt out of the officer's second trial -- but prosecutors combated those attempts, arguing that the shirt was relevant to the case against him.
A photo of the shirt was shown during his first trial, which ended with a hung jury and a mistrial. Tensing claimed that he shot Samuel DuBose out of fear for his life on July 15, 2015. He said at the time that he was being dragged by DuBose's car as it fled the stop. Prosecutors argued, however, that his undamaged uniform showed he was not being dragged when he shot DuBose.
Body camera footage also showed that Tensing pointed his gun at DuBose's head after the man restarted his car, but before it moved. He reportedly shot DuBose before the car moved.
"The defendant is putting forth a defense that his killing of Sam DuBose was legally justified," prosecutors wrote in court records, WXIX reported. The statement continued:
The defense is that he was being dragged by the defendant's car. The admission of the defendant's clothing and police equipment is extremely important to show the defendant was not being dragged. The clothing shows no damage and is therefore relevant. The State contends that the T-shirt's probative value is substantially outweighed by the danger of unfair, prejudice, confusion of the issues, or of misleading the Jury. The State contents that the T-shirt's probative value is not 'substantially' outweighed as stated in the rule. The rule does not prohibit unfavorable evidence to the defendant.
Tensing's attorneys said that the confederate flag shirt "contains nothing of evidentiary value, is irrelevant and highly inflammatory," and that showing it to the jury during the retrial would "unduly arouse the passions of the jury, rendering them unable to perform their duties as an impartial fact-finder."
"In order to preserve [Tensing’s] constitutionally guaranteed rights of due process a fair trial and an impartial jury, any evidence related to the T-shirt should be excluded," the attorneys argued.
Some readers felt as though Tensing's shirt was indeed a factor that should be considered in his new trial.
"Maybe don't kill a black person in suspicious circumstances while wearing a confederate flag shirt.. just a tip," one Daily Mail reader commented.