Mensah decision could cause sweeping change for prosecuting officer-involved shootings

Joseph Mensah with Waukesha County Sheriff's Department
Posted at 6:36 PM, Jul 28, 2021
and last updated 2021-07-29 17:42:33-04

WAUWATOSA — The decision by a Milwaukee County Judge finding probable cause to charge a former Wauwatosa Police Officer, Joseph Mensah, in connection to the shooting death of Jay Anderson Jr. opens up the possibilities for families to get justice for loved ones killed by police.

“It definitely feels like validation to the fight we’ve embarked on for several months,” Attorney Kimberly Motley, the attorney for the Anderson family said. “The family has been involved for years.”

Mensah currently works as a Detective with the Waukesha County Sheriff's Department.

Joseph Mensah with Waukesha County Sheriff's Department
Joseph Mensah in new role with Waukesha County Sheriff's Department

Motley filed a John Doe proceeding so Judge Glenn Yamahiro could see more information and directly interview witnesses to make a decision.

It’s a strategy not often used, but could reshape how prior officer-involved shooting cases are legally pursued.

The decision is a small victory for Motley. Mensah hasn’t been charged with anything to this point, but she says this could vindicate the families who have lost loved ones to police shootings.

“It opens the door to the Alvin Cole and Antonio Gonzalez families,” Motley said. “Frankly, other families throughout Wisconsin and this country that may have had questions on whether or not the investigation of police-involved shootings were actual investigations.”

“I can see several potential paths for them,” Keith Findley, a University of Wisconsin Law School Professor, said. “It’s leaving it entirely up to the Special Prosecutor to decide what charges, if any, to bring. I don’t know whether that would encompass him to charge for these additional shootings as well, but it is possible.”

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Findley says whether the other families’ cases are involved isn’t the only path. He believes they could also file John Doe proceedings in their individual cases.

“The other families could replicate the process and file their own requests with a judge for the appointment of a Special Prosecutor, or for the imitation of charges. Or they can at least take some vicarious solace in knowing that Officer Mensah is being held accountable for at least one shooting.”

The accountability will have to wait on a Special Prosecutor’s decision. That person will be selected by Judge Yamahiro in the coming weeks.

“It’s an important distinction that the judge’s ruling is that he would permit a complaint to be filed and then that’s going to be up to a Special Prosecutor that the judge will now appoint,” Craig Mastantuono, a local attorney, said. “The Special Prosecutor will not be from the District Attorney’s Office, which declined to prosecute former Officer Mensah. So that attorney will be charged with making the decision on what to prosecute Mr. Mensah with.”

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While Mastantuono acknowledges the difference between probable cause and actual charges, he says this decision carries weight in the expectation to charge Mensah.

“In his ruling, he focused on homicide by negligent use of a firearm, which is a felony in Wisconsin,” Mastantuono said. “By focusing on homicide by negligent use of a firearm, the judge, in my opinion, was providing a clear indication of what he thought rose to the level of probable cause. That’s as good a prediction as any as to what a Special Prosecutor may be looking at. The standard that any prosecutor has to meet to charge someone with a crime is probable cause. The judge said that exists here.”

While the use of this proceeding is rare, it’s not setting a precedent, according to Mastantuono. He praised Motley for utilizing this strategy but says there’s still a ways to go before the Anderson family receives any justice.

Kimberly Motley
Kimberly Motley

“It’s unusual and significant to see this statutory provision used and used successfully in obtaining a court’s agreement that a criminal charge should be filed when the District Attorney’s Office declined to do so,” Mastantuono said. “Probable cause is different than prove beyond a reasonable doubt. It’s important to note that former Officer Mensah did not have the right to cross-examine witnesses or defend himself in other ways in this special proceeding. He would be afforded those rights at a trill and the standard of evidence that needs to be met for conviction raises significantly from probable cause to proof by evidence beyond a reasonable doubt; the highest standard in the system. This is a clear path forward there would be a greater path with a higher hurdle necessary to achieve conviction of former Officer Mensah of a crime.”

But it’s the start of a new process in this case and possibly other cases across the country. Motley says she’s been contacted by families of people killed by police in Texas, California and New York about how this worked.

“This is a blueprint that has been set today,” Motley said. “This is an historic moment and I hope others in communities around the country can use this decision and use the steps we took in order to, perhaps, find justice in their communities.”