Probable cause found in Mensah case
Attorney took 2016 shooting to judge in rare process
A Milwaukee County judge announced Wednesday that he has found probable cause to charge former Wauwatosa Police Officer Joseph Mensah in the 2016 fatal shooting of Jay Anderson Jr.
“This decision has not been taken lightly, nor was it predetermined,” Milwaukee County Circuit Judge Glenn Yamahiro said.
The decision came more than five years after the shooting, which occurred June 23, 2016, at Madison Park in Wauwatosa. At the time, the Milwaukee County District Attorney’s Office ruled the shooting justified self-defense.
“Based upon the totality of the circumstances, the court does find probable cause that Officer Joseph Mensah operated a weapon, in a matter constituting criminal negligence, and in so doing, caused the death of Jay Anderson Jr.,” Yamahiro said.
“Therefore, the court finds probable cause that Officer Mensah committed the crime, homicide by negligent handling of a dangerous weapon. The basis for this finding rests on the testimony received over the course of these hearings.”
Yamahiro said Mensah created an “unreasonable and substantial risk of death” in the shooting.
Yamahiro is expected to appoint a special prosecutor on Sept. 28. That person will review the case and will determine whether they believe there’s probable cause to charge Mensah with a crime.
Mensah has shot and killed three people in the line of duty during a fiveyear span while he was employed with the Wauwatosa Police Department. The Milwaukee County District Attorney’s Office ruled all three shootings justified self-defense, including the most recent shooting of 17-year-old Alvin Cole in 2020.
Mensah is now a deputy with the Waukesha County Sheriff ’s Department.
After District Attorney John Chisholm decided not to file charges against Mensah in 2016, Anderson’s family sought a federal review for a civil rights violation. In February 2017, the U.S. Attorney’s Office for Eastern Wisconsin declined to prosecute Mensah.
Kimberley Motley, the attorney for the Anderson family, used a rare legal process to pursue charges against Mensah in connection with the shooting.
Under Wisconsin law, if a district attorney “refuses or is unavailable to issue a complaint, a circuit judge may permit the filing of a complaint.”
Before the court can do that, the judge must find probable cause to believe that a person should be charged with an offense.
Motley had been trying to prove that the shooting was unreasonable throughout four hearings that were held from February to May. During the final hearing, Motley told Yamahiro she doesn’t believe Anderson was ever a threat to Mensah during the incident.
A spokesperson for the Waukesha County Sheriff’s Department said, “In light of Judge Glenn Yamahiro’s decision regarding Joseph Mensah, Sheriff Eric Severson will be reviewing all of his options, and will have a more detailed statement and decision forthcoming.”
Family responds
After the hearing, the Anderson family walked out of the courtroom celebrating the decision.
About 75 people were there supporting the family. Supporters chanted Jay Anderson’s name outside the courtroom.
“We’re feeling great,” said Jay Anderson Sr. “We still got a ways to go, but this is good to hear. This is a good thing for us.
“I broke down. That broke me down. That’s justice. The judge gave us justice,” Anderson Sr. said about the moment he heard the decision in the courtroom.
Tracy Cole, the mother of Alvin Cole, said the decision was “justice for all three families.”
“Now I can sleep better. Now I can sleep a lot better,” Cole said. Motley was pleased by the decision. “It’s a long time coming. It confirmed what we believed — I believed — since we took this case,” Motley said.
“This is getting things one step closer to justice,” she said.
Motley emphasized that it’s ultimately up to the special prosecutor to actually charge Mensah.
Wauwatosa police chief responds
During a news conference after the decision on Wednesday, newly hired Wauwatosa Police Chief James MacGillis said he met in private with the Anderson family to express his condolences for their loss. He said he’s praying for their healing.
He also called the decision from Yamahiro “part of the legal process.”
“Now is the time to process the judge’s decision, and then move forward. Again, the legal process has played itself out, and it’s going to continue to play itself out,” he said. “My role is to lead this department, look at processes, look at how we function as an organization.”
“My role here is to move this department forward, to establish that community trust. To rebuild that trust and help the community with its healing. And again, never losing sight of the people that are involved. That’s the officers and members of the community and the families,” he said.
The shooting
Mensah was alone in his squad car on June 23, 2016, while patrolling Madison Park overnight.
Anderson was sleeping in his car at 3 a.m., but when Mensah approached the vehicle, he said he saw Anderson reaching for a gun. Dashcam video from Mensah’s squad shows the officer shooting into Anderson’s parked car.
Mensah told investigators he saw a handgun on Anderson’s passenger seat.
He said he drew his service weapon and ordered Anderson to raise his hands and not to reach for the weapon. Anderson raised his hands, but at least four times he started to lower his right arm while leaning toward the front passenger seat, where the gun was, according to the investigative report.
Mensah then fired into the vehicle. Anderson was shot five times in the head and once in his shoulder.
Motley brought forward former law enforcement officers and experts during the hearings. Two witnesses had not been permitted to offer testimony in other prior cases, but Yamahiro allowed them to offer testimony in his court.
Yamahiro said he’s aware of two cases in which one witness was not permitted to offer testimony in cases about false confessions. He said this case didn’t deal with false confessions.
Yamahiro also said he was aware of two cases in which forensic psychologist William Harmening was not permitted to testify as an expert.
“The court has reviewed those cases and does not find that they form the basis to disqualify him from offering testimony in this matter,” Yamahiro said.
Harmening, and other former law enforcement officers, said they believed the shooting was unreasonable, as they said Mensah could have taken other approaches to de-escalate the situation.
Yamahiro said he didn’t believe Anderson’s intent was to harm or shoot Mensah during the incident.
“This record is filled with testimony of alternative choices, that Officer Mensah could have chosen to de-escalate the situation, or recover the weapon, without shooting Mr. Anderson,” Yamahiro said.
The special prosecutor will now have to “decide which charge, or charges, if any, they believe can be proven, beyond a reasonable doubt,” Yamahiro said.
“It’s a long time coming. It confirmed what we believed ... since we took this case. This is getting things one step closer to justice.” Kimberley Motley attorney for Anderson family