The Lies That Justify

On May 4th 2021, we returned to Milwaukee County Courthouse Branch 34 in front of Judge Yamahiro for day 3 of the John Doe Hearings for the death of Jay Anderson Jr. by former Wauwatosa Police Officer Joseph Mensah.  The morning started with several off the record issues surrounding records that Wauwatosa Police Department hadn’t handed over before the hearing and getting the details of these issues on the record.  For starters, Attorney Kim Motley and the attorney for the City of Wauwatosa met in the judge’s chambers to receive records that should have been in Joseph Mensah’s Personnel File years prior that no one had received until now.  It was also noted on the record that Attorney Motley had asked via an open records request for 8hrs of Mensah’s squad video and only received 7 minutes worth of footage.  Footage the City Attorney claims either no longer exists or never existed.  Motley also asked for 5hrs of video from the Madison Park Elementary School of which she only received 2 ½ hrs. worth of video.  Again the City Attorney claimed the video no longer exists or never existed.  It was also put on the record that there was a protective order on Mensah’s Medical Records, which could not be released per Wisconsin Open Records Law.

The Public Information Officer and Records Custodian Lt. Joseph Roy would take the stand and testify to his involvement in the investigation of the Anderson shooting.  Roy would testify that he was assigned to canvas the Madison Park area for any witnesses who may have seen or heard anything surrounding the incident.  Roy noted two residents in his reports that said they heard noise in the area.  His canvass of the area was done at 6am, hours after the lead investigating agency; Milwaukee Police Department would arrive on scene to take over.  Roy also testified that after he wrote his report, a supervisor approved it; it was entered into the system but does not recall if his report ever went to MPD and MPD did not reach out to him regarding his report.  In August 2020, Roy testified that he handed over the complete personnel file for Joseph Mensah which we would find out that file was not only missing documents, but documents would later be added to it in a suspicious manner.  Roy noted that the officers on the scene of the Anderson shooting should not have handled evidence but that the “officers were still dealing with a situation”, as an excuse for why they did.

The moment everyone had been waiting for, Wauwatosa Chief of Police Barry Weber would take the stand next.  You can hear the entire testimony from the chief here:

Weber testified that he has been Chief of Police for 31yrs and supervises 96 officers.  He is part of the International Chiefs of Police Association, Milwaukee County Law Enforcement Executives Association, Wisconsin Police Executive Group, Tosa Rotary Club, Tosa Chamber of Commerce and the FBI National Academy Associates.

In December 2016 the Assistant District Attorney Kent Lavern declined to file charges against Mensah as did the DOJ.  These letters outlining this decision Weber stated he “didn’t see”.  When Weber was asked if he had communicated with Mensah on June 23rd 2016, Weber testified “I saw him at the scene around 3:45am. He was in the back of a squad car”.  This was a detail that is not mentioned in any report taken by WPD or MPD and a crucial detail because Weber tried to get out of testifying due to him having no knowledge of the incident and investigation.  In a previous hearing date it was noted that Weber also went down to the Medical Examiner’s Office and viewed Anderson's body.   This was another detail that is not in any official report.  These are serious incidents that can have great influence regarding the case and investigation.

Motley asked the chief to describe his duties as police chief.  Weber responded that he describes his duties as “not to run the police department, but that the department runs well.  Officers report to Sergeants, then to Lieutenants, then to Captains and Captains report to me”.  Motley asked him if he was the primary policy writer for the Wauwatosa Police Department and he responded “Yes. I used to write all the policies, now I delegate those responsibilities” and he later approves the policies written by others.

Joseph Mensah received a Medal of Valor in 2016 after the Anderson shooting for the shooting and death of Antonio Gonzalez that happened in 2015.  Even though Mensah was placed at a desk and currently under investigation, Weber justified giving him the medal because it was a separate incident despite the fact that he could have rescinded the commendation.  Weber testified that Mensah was “deserving of the medal for the Gonzalez shooting.

One of the most notable portions of Weber's testimony came when asked questions about Mensah’s Fitness for Duty evaluations.  Weber stated that there was “not a standard written policy” within the department pertaining to Fitness for Duty evaluations.  Motley asked the chief what the standard guidelines were set forth by the International Chiefs of Police Association and Weber responded that he “doesn’t know the standard”.  The Chiefs Association “thinks they’re the experts in everything and one size fits all”.  What we need to understand is that the ICPA sets the standards for all Fitness for Duty Evaluation Guidelines across the country.  It is the only standard that is supposed to be followed and there are very specific protocols set in place.  This is a policy that every police department has to follow.

Weber went on to testify that there was no documentation that a Fitness for Duty Evaluation was in Mensah’s file following the Gonzalez shooting.  There was also not an internal investigative file found in 2017 after the Gonzalez shooting.  The internal investigation documents would not appear in the file until November 2020 where two reports have no dates or signatures on them which Weber stated “would be important”.  Three more documents related to Mensah’s Fitness for Duty after the Jay Anderson shooting would also not appear in the file until 2020.

Mensah ultimately resigned from the Wauwatosa Police Department and accepted a position with the Waukesha County Sheriff’s Department after Weber wrote a letter of recommendation, stating that Mensah, in each of the shootings “was confronted by an individual with a weapon who refused to put the weapon down”.  Motley fired back asking Weber if multiple times “who told you Anderson had a weapon”?  After some back and forth banter between the two, Weber responded “Anderson had a weapon right next to him; I considered Anderson armed because the weapon was next to him and he reached”. 

This banter would iconically produce a meme that has widely spread across social media “You sticking with that?  It’s ok if you made a mistake Chief”.  Weber also went on to testify that he had no knowledge of Mensah having equipment “malfunctions or reporting malfunctions”.  The internal investigation of the Anderson shooting was not done until 2018.

Weber went on to testify that he told Investigator Biskupic who was tasked with the investigation into the shooting incident, that Anderson’s gun was “on the center counsel” and that he knew this from several reports he read.  Yet there isn’t a single report that states Anderson gun was on the center counsel.  This was a fabricated piece of information that Weber told the investigator.  Motley asked Weber “isn’t it important for a supervisor to give accurate information”?  Weber simply responded “Yes”.  The testimony shifted to Mensah’s designated patrol area the night of June 22nd and Weber stated “Mensah was assigned to that area”.  Motley responded with “he wasn’t assigned to Madison Park area” and Weber responded with “I don’t know”.  Motley had mentioned the lead investigator for the Milwaukee Police Department and Weber stated “I don’t even know who that is”.  Weber does not consider Mensah firing his weapon 19 times in a 4 ½ year period an “anomaly” despite no fatal shootings have occurred from January 2010 to current date by any Wauwatosa Police Officer nor has a Wauwatosa Police Officer fired their weapon that many times including Weber who has never fired his weapon in 31yrs of service.

One of the most damning witnesses we saw in the first hearing date William Harmoning returned to take the stand again on Day 3 and his testimony once again would be extremely eye opening in how WPD and Weber handle department affairs.  Harmoning testified that the 3 letters that magically appeared in Mensah’s file in 2020 “has no resemblance of a Fitness for Duty & Psych Evaluation”.  “Fitness for Duty is “not taken lightly, they are structured and a complex process” Harmoning stated.  There are “specific guidelines under Federal Statute”.  “A proper Fitness for Duty Evaluation includes interviews and psychological testing.  They are designed to identify psychological problems, diminish emotional function, and identify officers attempting to put on a good picture of themselves.  It includes a recommendation categorized as Fit, Unfit, or Fit with Modifications”.  Harmoning stated there are two evaluations that are done.  The first is a psychological evaluation that “takes place after the critical incident typically in the first week, then 1 month, 3 months, and then on the 1st Anniversary of the incident.  The next would be a Fitness for Duty Evaluation if any evidence in the Psychological evaluation suggests the officer is affected and this is done to make sure it’s safe for the officer and the public”.  Harmoning testified that Mensah should have been “involved in 3 psychological interventions” and that he would argue “three shootings in a short amount of time would be enough for a Fitness for Duty Evaluation”.  When Motley asked who sets the standards for a Fitness for Duty Evaluation, Harmoning stated there is “only one” and that is the “International Chiefs of Police Association which is endorsed by the American Psychological Association.  They “regulate who can complete a Fitness for Duty Evaluation”.  Motley then asked if Harmoning thought that Weber followed the guideline and Harmoning stated “No I don’t, I don’t see where any guidelines were followed”.

In a Fitness for Duty Evaluation it can only be completed by a Psychologist or Psychiatrist who is an APA Board Certified individual with Police & Forensic Psychology.  “They have to have a keen awareness of police duties” Harmoning stated.  Harmoning does not believe any of the individuals Weber used to clear Mensah to return to work “even know how to do one, because the letters don’t resemble what a Fitness For Duty Evaluation look like”.  Harmoning went on to mention that not only are these people “not qualified, they could be committing ethics violations”.  He testified that Fitness for Duty reports are generally between “10-30 pages, objective evidence leading to the evaluation, the request has to come from the chief and that they include, interviews of officers, family, coworkers, Psychological tests and then a recommendation”.  The report then goes to the chief.  He added that the “officer is not the client, the chief is and the officer can’t decline”.  Due to Weber’s testimony that he conducts the Fitness for Duty over the phone and Harmoning testified that this is “not normal and not professional.  It could jeopardize their career or at least their accreditation”.  Harmoning mentioned that one of the individuals who cleared Mensah was a “social worker” who is not qualified because they need a “PhD Level”.

“This causes me distress; this department has no procedures in place and doesn’t recognize the National Standards”.

It was noted in Harmoning’s testimony that there were “no routine performance evaluations, no Field Training Officer evaluations and no Academy Evaluations in Mensah’s Personnel File”.

Harmoning would refer back to the Graham v. Connor case that we heard about in day 1 of the hearing from him, where the iconic Supreme Court Case outlines “would a reasonable officer react the same”.  Harmoning testified that there are three factors that are looked at; underlying crime, did the subject pose a threat of injury or death to the officer, and did they actively resist or escape”.  So let’s look at each element.

Underlying Crime – the underlying crime was an ordinance violation which is not a crime.  Harmoning stated that the “district attorney stated the underlying crime was that Anderson was armed”.  This is a “misinterpretation of Graham and stretching that standard as far as they can to make it work”.  It is “not a crime in America to be armed.  It’s a crime to be illegally armed.  It’s a crime to do something illegally while armed”.  When Mensah “fired at Anderson, he had no probable cause of a crime at that point.  It is improper to say the crime was that he was armed”.

Did Subject Pose A Threat – Harmoning “doesn’t believe there was any threat”.  The video “shows Mensah didn’t shoot because he reached for a gun.  He was shot because he lost sight of Anderson hands.  Mensah put himself in that position and he shouldn’t have”.  The “question Mensah can’t answer is why with Anderson’s hands moving did he decide to shoot on the 5th time and not before?”  Harmoning didn’t notice anything change in the hand movement and believes Mensah also “stretched the Graham standard”.  “I think he added the narrative of lunging with his body”.

Harmoning went on to testify that there was “no objective source on where the gun was found.  A Wauwatosa officer picked it up and put it in the trunk of a car.  The evidence is contaminated.  Mensah improperly had his gun pointed at Anderson.  You have to have a reason to point a gun at someone.  I don’t see that reason because he was not under arrest, nor did he have probable cause to arrest him for anything at that point.  You don’t pull your gun out unless deadly force is likely to be justified.  As I testified last time, I don’t believe Jay Anderson had a chance once that gun was pointed at him”.

Another element that was interesting during Harmoning’s testimony that we hadn’t heard before is that Mensah still had access to his squad car.  Harmoning testified “Mensah should have been removed and taken to another location until interviewed and his squad car becomes part of the crime scene”.  In a report during the investigation it was noted that the takedown lights on Mensah’s car were turned off and his red/blue lights that weren’t previously on during the encounter were now on.  Presumably the only person to have access to Mensah’s car was Mensah himself.

Former Milwaukee Police Detective Ricky Burems who specializes in Crime Scene Reconstruction took the stand next.  Some crucial testimony from Burems to pay attention to in this hearing where he noted that “bullet holes 5 & 6 went through the head rest of Anderson’s car indicating Mensah was still aiming at Anderson’s head where he was positioned in the car.  The entry position and trajectory wounds aren’t consistent with a person lunging and there was no blood splatter on the passenger seat, center counsel, items on the passenger seat or the passenger side floor board.  Burems went on to testify “Had Anderson been leaning or lunging for his gun on the passenger seat when Mensah shot him, there would have been blood splatter on the passenger side of the car and Anderson would be laying across the center counsel and the passenger seat when other officers arrived”.  Based on the pictures and reports there “was only blood splatter on the driver side of the car”.  This would mean Mensah was not truthful in his statements that Anderson was lunging, but in fact sitting straight up, unarmed when Mensah shot and killed him.

Attorney Kim Motley is set to be back in court May 19th at 9:45am for closing arguments.  This is an ongoing story and we will continue to cover it.

Read About The Previous Hearing Dates:


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