MADISON, Wis. – A judge will decide this week whether there's enough evidence to charge a Wisconsin police officer who killed a man sitting in a parked car, after the man's family invoked a rarely used legal process in a bid to get around prosecutors who cleared the officer.
Joseph Mensah shot Jay Anderson Jr. in 2016 after he discovered him sleeping in his car after hours in a park in Wauwatosa, a Milwaukee suburb. Mensah said Anderson was reaching for a gun.
Anderson was the second of three people Mensah killed during a five-year stint with the Wauwatosa Police Department. Prosecutors cleared Mensah in each case. But an attorney for Anderson's family stumbled onto an obscure legal option to force a grand jury-like proceeding against Mensah in which a judge rather than a jury hears evidence.
A Milwaukee judge could implement the little-used procedure on Friday and find probable cause to warrant charges against Mensah. It's a case being 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 charge Mensah. “They let him get away with murder is 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 and killed Antonio Gonzales, who identified as a Latino and American Indian. Prosecutors said Gonzales refused to drop a sword. The Anderson shooting came the following year.
In 2020, Mensah shot and killed 17-year-old Alvin Cole as Cole fled from police following a disturbance in a mall. Cole was Black. Mensah said he shot Cole because Cole pointed a gun at him. That shooting sparked months of protests, and Chisholm's decision not to charge Mensah set off several more nights of protests in Wauwatosa in October.
Mensah resigned from the Wauwatosa Police Department the following month, collecting a $130,000 severance payment. He now works as a Waukesha County sheriff's deputy.
Kimberley Motley, an attorney representing the Gonzales, Anderson and Cole families, said she was researching the use of grand juries in Wisconsin in hopes of finding another avenue for charges and found what's known as the John Doe option.
Wisconsin law dating to the state's territorial days set up such proceedings as a check on prosecutorial discretion. Similar to grand jury investigations, prosecutors can invoke the process to subpoena witnesses and question them under oath and in secret in hopes of gathering enough evidence to justify charges against someone. Prosecutors used the process in the early 2010s to investigate then-Republican Gov. Scott Walker's campaign operations. Walker was never charged.
An even more obscure section of the John Doe law allows citizens to ask a judge to open a John Doe when a prosecutor has declined to file charges. The judge can choose to initiate the investigation and decide whether to run it publicly or in secret. The citizen or his or her attorney can question witnesses in front of the judge with no cross-examination. The judge can then decide whether charges are warranted and appoint a special prosecutor to handle 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 alleges she was raped collected enough petition signatures last month to force a grand jury investigation after prosecutors declined to file charges.
Citizen-initiated John Does are rarely used in Wisconsin. Marcus Berghahn, a criminal defense attorney and adjunct law professor at the University of Wisconsin-Madison, said they happen perhaps once or twice a decade in the state. Motley said she's not aware of any John Does being used against police officers.
Motley filed a petition seeking one in February. She argued in the filing that no Wauwatosa officer besides Mensah has shot and killed anyone in the line of duty in more than 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 during their career and multiple homicides by a single officer is an even rarer occurrence,” she wrote.
She alleged that Anderson never touched the gun on the passenger seat, and said Chisholm faces a conflict of interest whenever he reviews an officer-involved 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 agreed to open an investigation, and heard testimony at five public hearings.
Motley has asked Yamahiro to find probable cause to charge Mensah with second-degree reckless homicide and homicide by negligent use of a weapon.
Mensah’s attorney, Jon Ceremele, didn’t return a message. He said in February that Mensah has been cleared of any criminal liability, he clearly acted in self-defense and Motley didn't have any new evidence to present.
Wauwatosa Police Chief Barry Weber testified in May that he considered Anderson armed, the Milwaukee Journal Sentinel reported.
Motley subpoenaed Mensah, but Ceremele said he would simply invoke his Fifth Amendment right against self-incrimination and wouldn't speak. He didn't appear in court after Yamahiro accepted that contention, Motley said.
Motley said Anderson's case could point the way for other families who have lost loved ones to police and want to pursue the accountability they feel they didn't get when a prosecutor decided not to charge an officer. She said she's weighing whether to pursue 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 the Mensah hearings. He said the family is trying to familiarize itself with the John Doe process. A Kenosha County prosecutor cleared the officer in Jacob Blake's case, saying Jacob Blake had been fighting with officers and was wielding a knife.
“It would be just tremendous if we were able to indict this criminal cop," Justin Blake said, referring to Mensah. "That would lay the groundwork for our family to get justice for Little Jake when we’ve had no justice. There’s just so much leeway for cops to get out when they do criminal stuff. This is a way to keep their feet to the fire.”
Follow Todd Richmond on Twitter at https://twitter.com/trichmond1
This story was first published on June 20, 2021. It was updated on July 28, 2021, to correct that the judge considering the Anderson case was finding whether probable cause existed to charge the police officer, rather than bringing charges directly.