Family seeks second chance to indict officer in man’s death
MADISON, Wisconsin – A judge will decide this week whether to indict a Wisconsin police officer who killed a man sitting in a parked car, after the man’s family raised a rarely-used legal process in an attempt to bypass the prosecutors who cleared the officer.
Joseph Mensah shot Jay Anderson Jr. in 2016 after discovering him sleeping in his car after hours in a park in Wauwatosa, a suburb of Milwaukee. Mensah said Anderson was looking for a gun.
Anderson was the second of three people killed by Mensah during a five-year stint with the Wauwatosa Police Department. Prosecutors cleared Mensah in each case. But a lawyer for Anderson’s family stumbled upon an obscure legal option to force a grand jury-like proceeding against Mensah in which a judge rather than a jury hears the evidence.
A Milwaukee judge could implement the little-used procedure on Friday and indict Mensah directly. It’s a case watched by at least one other family frustrated by a prosecutor’s decision not to charge a police officer who shot their loved one.
“We kind of thought that was it,” Anderson’s father Jay Anderson Sr. said of Milwaukee County District Attorney John Chisholm’s decision not to indict Mensah. “They let him get away with a murder, that’s what they did.” He called the hearing a “blessing to me and my family.”
Mensah, who is black, joined the Wauwatosa Police Department in 2015, the same year he shot dead Antonio Gonzales, who identified himself as a Latino and an American Indian. Prosecutors said Gonzales refused to drop a sword. The Anderson shooting took place the following year.
In 2020, Mensah shot dead Alvin Cole, 17, as Cole fled from police following a disruption at a shopping center. Cole was black. Mensah said he shot Cole because Cole pointed a gun at him. The shooting sparked months of protests, and Chisholm’s decision not to indict Mensah sparked several more nights of protests in Wauwatosa in October.
Mensah resigned from the Wauwatosa Police Department the following month, receiving severance pay of $ 130,000. He now works as a Waukesha County Sheriff’s Deputy.
Kimberley Motley, an attorney representing the Gonzales, Anderson and Cole families, said she is researching the use of grand juries in Wisconsin in hopes of finding another avenue of indictment and has found what is known as l ‘John Doe option.
Wisconsin law dating from the state’s territorial days has put in place such procedures to control prosecutorial discretion. Similar to grand jury investigations, prosecutors can invoke the process to summon and question witnesses under oath and in secret in the hope of gathering enough evidence to justify charges against someone. Prosecutors used the process in the early 2010s to investigate the campaign operations of then Republican governor Scott Walker. Walker has never been charged.
An even more obscure section of the John Doe Act allows citizens to ask a judge to open a John Doe when a prosecutor has refused to file a complaint. The judge can choose to open the investigation and decide to conduct it in public or in secret. The citizen or his attorney may question witnesses before the judge without cross-examination. The judge can then decide to lay charges and appoint a special prosecutor to deal with the case.
At least six other states, including Kansas, Nebraska, and North Dakota, have similar provisions for citizen-initiated grand juries. A Kansas woman who claims she was raped collected enough petition signatures last month to force a grand jury investigation after prosecutors refused to press charges.
Citizen-initiated John Does are rarely used in Wisconsin. Marcus Berghahn, criminal defense attorney and assistant law professor at the University of Wisconsin-Madison, said they occur perhaps once or twice a decade in the state. Motley said she was not aware of any John Does used against police officers.
Motley filed for one in February. She argued on the record that no officer in Wauwatosa other than Mensah has shot anyone in the line of duty in over a decade. She also highlighted the 19 shots he fired in the three incidents, calling it an “extraordinary number”.
“Most police officers never fire a single shot in the line of duty in their careers and multiple homicides by a single officer are even rarer,” she wrote.
She alleged that Anderson never touched the gun in the passenger seat and said Chisholm faced a conflict of interest whenever he reviewed an officer’s death. The risk Mensah poses to public safety is too great not to appoint a special prosecutor, she said.
Milwaukee County Circuit Judge Glenn Yamahiro has agreed to open an investigation and heard testimony in five public hearings.
Motley asked Yamahiro to charge Mensah with second degree reckless homicide and negligent homicide.
Mensah’s attorney, Jon Ceremele, did not return a message. He said in February that Mensah had been cleared of criminal liability, had clearly acted in self-defense and that Motley had no new evidence to present.
Wauwatosa Police Chief Barry Weber said in May he considered Anderson armed, the Milwaukee Journal Sentinel reported.
Motley sued Mensah, but Ceremele said he would simply invoke his Fifth Amendment right against self-incrimination and not speak up. He did not appear in court after Yamahiro accepted the claim, Motley said.
Motley said Anderson’s case could pave the way for other families who have lost loved ones to police and wish to pursue the responsibility they feel they did not have when a prosecutor decided not to not charge an officer. She said she plans to continue the same process for the Cole and Gonzales families.
Justin Blake, whose nephew Jacob was paralyzed from the waist down after being shot by a Kenosha police officer in August, attended one of Mensah’s hearings. He said the family is trying to familiarize themselves with the John Doe process. A Kenosha County prosecutor exonerated the officer in the Jacob Blake case, claiming Jacob Blake had fought with officers and was brandishing a knife.
“It would be just great if we could indict this criminal cop,” said Justin Blake, referring to Mensah. “It would lay the groundwork for our family to get justice for Little Jake when we didn’t get justice. Cops have so much leeway to get out when they’re doing criminal stuff. It’s a way to keep your feet on the fire. “
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