This Wasn't An Investigation, This Was Justification
On February 25th, 2021, Attorney Kimberly Motley’s petition to the court for a John Doe Hearing commenced. Before we get into the specifics of the initial hearing, what exactly is a John Doe Hearing and why is this important? Under Wisconsin Statute 968.02 (3) “if a District Attorney refuses or is unavailable to issue a complaint, a circuit court judge may permit the filing of a complaint, if the judge finds there is probable cause to believe that the person to be charged has committed an offense after conducting a hearing. If the District Attorney has refused to issue a complaint, he or she shall be informed of the hearing and may attend. The hearing shall be ex parte without the right of cross examination”. During “ex parte” hearings there is no right to cross examination and witnesses have no right to counsel during questioning. This is a historical moment in Wisconsin legal history as no “John Doe” hearings have ever been filed against a police officer. We could see this special type of hearing become more common considering the vast amount of District Attorney’s refusing to file charges against law enforcement personnel during critical incidents that involve death of another and strategically be used as another way to bring justice to families who lost a loved one. After what I heard in this initial appearance all critical incidents should be handled this way to avoid “bias” and “corruption”.
On June 23rd, 2016, Jay Anderson was parked in his car asleep at Madison Park where he would be confronted by then Wauwatosa Police Officer Joseph Mensah who opened fire on Anderson alleging Anderson lunged for a gun. Anderson was struck four times by Mensah resulting in his death. Anderson’s death would be Mensah’s second death related shooting.
Prior to the hearing Former Wauwatosa Officer Joseph Mensah who is responsible for shooting and killing three individuals, (Antonio Gonzales, Jay Anderson, Alvin Cole) within a five year period, filed a Motion to Quash his Subpoena. I don’t think anyone expected Mensah to testify during this hearing and we will more than likely see Mensah plead the 5th in order to protect himself from incrimination. Argument on this motion is scheduled for March 12th. It will be interesting to hear a judge’s ruling on Mensah’s 5th Amendment right to remain silent on the stand considering Mensah violated Department Policy by openly making statements to the media about his involvement in the three shootings. Because of these public statements Mensah may not be afforded the right to stay quiet.
During an interview Mensah gave on the Dan O’Donnell radio show, Mensah states “This is crazy because if you were to look at my department, and other departments as well, there are several officers that have fired way more”, referring to Motley’s notice of Mensah firing his weapon 19 times during the three shootings. Mensah goes on to state like a 3yr old pouting, regarding his suspension that he “violated no policy, no procedures”. “I did absolutely nothing wrong, yet I’m still suspended. For what”. I’ll get into Mensah’s policy violations later in the article that everyone seemed to overlook or ignore during the initial investigation. Mensah goes on during the interview to talk about other critical incidents that other officers were involved in and states that “Honestly, some of them worse than mine”. According to records there are no other incidents involving a Wauwatosa Police Officer involved in a critical incident worse than Mensah’s by which an incident resulted in death. Mensah is the only officer during a ten year period that fired their service weapon that resulted in anyone’s death. It is worthy to note that the common council voted unanimously to "fire" Mensah, but he was only suspended.
Current Chief of Police for Wauwatosa, Barry Weber has also filed a Motion To Quash his Subpoena. Some key verbiage in Weber’s Motion to pay very close attention to which I will highlight later in this article, “Chief Barry Weber has no competent, relevant, or material evidence to offer regarding the subject matter of these proceedings, nor does he have any documents responsive to the request contained within the subpoena”. It also states that “Wauwatosa Police Chief Barry Weber…did not participate in this investigation in any capacity”. “The sole investigative body reviewing this matter and the death of Mr. Anderson was the Milwaukee Police Department. As a result, Chief Weber possesses no first-hand knowledge of any of the facts and circumstances surrounding the officer involved death of Jay Anderson Jr. and was not a participant in or witness to the subsequent investigation”. Arguments for this motion will also be heard on March 12th.
During Attorney Kimberly Motley’s opening statement in front of Judge Glen Yamahiro she made several points that I will touch on in this article where “Joseph Mensah has conflicting statements regarding the shooting of Jay Anderson Jr”. Motley believes “the District Attorney’s Office was a conflict to investigate all three shooting cases”. And “Mensah’s interaction was reckless, & inconsistent with his training and not objectively reasonable”.
The first witness called to the stand was Hakim Fudge who was the last person to see Anderson before his fatal encounter with Mensah. During the line of questioning Fudge spoke of his relationship with his friend “Baby Jay”, noting that Anderson was not a confrontational individual. Fudge stated numerous times that when the two friends hung out that they would go to “safe places” where they felt comfortable where no altercations would occur. On the night of June 23rd, 2016 Fudge stated that the two spent the evening at a local bar. A critical point to note in Fudge’s testimony was that the two needed a valid ID to enter the bar and that they were both ID’d before entering. This is an important piece of information that would come up in later testimony and also conflict with statements given by Mensah.
The second witness that testified was Dr. Wieslawa Tlomak, a Pathologist for the Milwaukee County Medical Examiner’s Office. Dr. Tlomak testified that Anderson was brought to Froeddert Hospital and pronounced dead at 4:05am. She did not gain access to Anderson until 8:20am when she conducted the autopsy. Tlomak testified that several people where in the room during the autopsy, a forensic investigator with the ME’s Office, a Milwaukee Detective (Michael Braun-Writer) and a Wauwatosa Detective (Joseph Lewandowski). She stated it is not uncommon for law enforcement to be present during an autopsy. In the synopsis, she mentioned it stated as to Anderson’s death that a “25yr old male was shot by Wauwatosa Police Officer because he failed to obey commands to exit the vehicle”, but she could not recall who told her this information.
Tlomak went on to testify to the gunshot wounds that struck Anderson. As Tlomak testified, images of Anderson and the gunshot wounds loaded onto a viewing screen in the courtroom. She testified that there were six shots total, four of which struck Anderson resulting in four entrance wounds and two exit wounds. The first gunshot entered Anderson on the right side of his head by his right ear and the exit was behind the left ear. This resulted in a “straight through and through” wound. The second shot struck Anderson above the right ear and again exited behind the left ear, resulting in a “straight through and through” wound. The third shot struck Anderson in his right cheek and produced no exit wound. The fourth shot struck Anderson on top in the right shoulder and was lodged in his left side back muscles. The direction of these wounds is going to be vital when it pertains to “straight through and through”. Anderson’s Blood Alcohol Level (BAC) was 0.114 at the time of the shooting. Tlomak testified that unlike our metabolism working alcohol through our system, when a person dies the body stops metabolizing the alcohol in the system. She determined the cause of death was the result of gunshots and the manner of death was “Homicide”. Tlomak testified that there are “five manners of death”. “Natural, Accident, Suicide, Homicide and Undetermined”. Homicide by its simplest definition is “death by the hands of another”. Tlomak labeled it a Homicide further than just the simple definition after extensive review of the investigation, videos during the scene, police reports, medical records and her own investigation during the autopsy. Tlomak’s testimony was crucial when speaking of the reasons she determined the death of Anderson to be a Homicide above the simple definition in medical language. She signed off on the autopsy and Homicide death of Anderson on July 19th 2016. Motley questioned if at any time was “Chief Barry Weber present during the autopsy or have access to Anderson’s body”. Tlomak stated “he was not and it would have to be logged if Weber viewed the body”. Pay close attention to this detail later.
The third and final witness for the day was William Harmoning, a retired Law Enforcement Officer of thirty seven years whose career is pretty notable and now acts as an expert witness for “critical incident” cases revolving around “officer involved shootings”. He has worked approximately 200 cases in 31 states some more notable such as Michael Brown, Dontre Hamilton and currently George Floyd. Harmoning testified that there is “bias in investigations” which is “almost always present”, because there really isn’t a “comprehensive independent investigation”. He then went on to testify “unless there is tension between departments” a review will be bias.
Under Wisconsin Statute 175.47 (3)(a) must require an investigation conducted by at least two investigators, one of whom is the lead investigator and neither of whom is employed by the law enforcement agency that employs a law enforcement officer involved in the officer involved death. This law is the result of the Michael Bell shooting that happened in Kenosha back in 2004. This law is going to play a vital role as I outline the investigation and misconduct by the Wauwatosa Police Department.
Harmoning would testify that he “does not believe Mensah had a reasonable fear for his safety” under the 1985 case Tennessee v. Garner, where a civil case in which the Supreme Court, held that, under the Fourth Amendment, when a law enforcement officer is pursuing a fleeing suspect, the officer may not use deadly force to prevent escape unless "the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." Harmoning reviewed the evidence surrounding the Anderson death and in his expert opinion evaluating the “totality of evidence” and “reasonable officer standard” that Anderson posed “no active or imminent threat” to Mensah as seen in the 1989 case Grahm v. Connor where the Supreme Court determined that an objective reasonableness standard should apply to a civilian's claim that law enforcement officials used excessive force in the course of making an arrest, investigatory stop, or other "seizure" of his person.
Harmoning testified to reviewing Mensah’s training, background, discipline, prior shootings, and video and looked into whether Mensah had any Forensic Psychological review after the Antonio Gonzales shooting. He stated that as police officers are “human” and “not robots” any officer involved in a “critical incident involving deadly force” should be “evaluated and supervised”. “Regardless if a critical incident is justified or not, it has impact on the officer”. To our knowledge Wauwatosa Police Department does not have a policy for officers to undergo any type of evaluation and there is no evidence Mensah was evaluated or supervised per his return after each shooting.
Harmoning testified that he “believes evidence was compromised by the Wauwatosa Police Department” during the investigation. Attorney Motley loaded the dash cam video of the Anderson shooting and Harmoning walked her through a variety of moments in the video. He noted that at the start of video, Mensah had activated his body cam after the shooting which went back 28 seconds. This is “against policy”. He also noted that Mensah was in a “shooting position”. Harmoning stated that there would be “no reason” for Mensah to be in this position as he had “no probable cause” that Anderson had committed a crime. Mensah would not have had time to notice Anderson being intoxicated, nor would he know if the gun in Anderson’s car was legal or not as Wisconsin is an “open carry” state. At the time of Mensah’s interaction with Anderson it was nothing more than an ordinance violation for being in a park past 10pm. He stated that this was “not consistent with police training”.
Motley loaded up the Wauwatosa Police Department Vehicle Training slide on the screen and dove into questioning with Harmoning. He testified that again, Mensah “broke policy” that his “positioning of the squad car was not safe”. Typically during a traffic stop law enforcement pulls their vehicle behind yours at least a car length behind and slightly offset on the driver side allowing some cover for the officer against traffic. During the stop, the officer would shine their squad light into your rearview mirror. This is intended to “blind the person” Harmoning stated so they can’t see the “approach of the officer”. The approach is the most dangerous time during a traffic stop. Mensah positioned his car in front of Anderson and turned his light on which meant Mensah put himself in an unsafe view by illuminating himself which was "inconsistent with his training” Harmoning testified that Mensah had three “safer” options that night; back up to his own vehicle and waited for backup; could have approached from the other side of the vehicle and asked Anderson to not reach for the weapon; or he could have asked Anderson to step out of the car. Had Mensah chosen any of these options “Anderson would be alive today” he stated. Mensah created a dangerous situation. Anderson wasn’t shot because he reached for a gun, he was shot because Mensah lost sight of his right hand. Anderson didn’t have a chance that night”, Harmoning added.
What’s critical in the statements Mensah gave during the investigation is that initially he never states Anderson lunged for a gun. Mensah added this detail later into the investigation. Harmoning believes Mensah “needed to find a reason” to have shot and killed Anderson which is why Mensah added a “furtive movement” later in his statement. A “furtive movement is either subtle or abrupt movement that alerts an officer a subject may become hostile. During statements given, Mensah notes that Anderson lifted and lowered his hands 5 times. Leaves question as to why Mensah didn’t shoot the first 4 times. Harmoning questions the 5th time which again, Mensah later adds the lunging for the gun. If we go back to Dr. Tlomak’s testimony with the angle of the first three gun shots they were “straight on” which would not be consistent with Mensah’s statements that Anderson lunged. The angle of the entry wounds would not be straight on. It’s quite clear in the dash cam video that the first shot was in fact to Anderson head, “straight on”. It is also notable that considering Anderson's BAC level and the fact he was abrubtly woken up, he would have been impaired enough and startled resulting in his hands raising and lowering and his body potentially slouching. This was something else that Harmoning took issue with, the 6 shots. Knowing that law enforcement is trained to shoot until the threat stops, Harmoning questioned why Mensah continued firing his weapon if the first shot was the “shot to the head”. Because Mensah had no probable cause Harmoning testified that “all 6 shots were excessive”. During the initial investigation, Mensah stated he was called to the scene where Anderson was, yet there is no record of a 911 call or a dispatch call to Mensah. Mensah had no knowledge of any crime that Anderson would be committing, and realistically being in a park after close is nothing more than a ticket.
Remember the Wisconsin Statue where agencies can’t conduct their own investigations? In a Wauwatosa Police Report an officer searches Anderson’s pockets. In his left pocket he notes findings of a cell phone, a green plant in a bag, currency. He also notes an ID but doesn’t specify which pocket the ID was found. Mensah would make a statement during the investigation that Anderson didn’t have an ID and later states Anderson claims to not have an ID, which we know to be untrue since Fudge testified they needed their ID’s to get into the bar and the Wauwatosa Officer noted finding an ID. Later when Milwaukee Police would inventory Anderson’s belongings they would note the contents in the right pocket of Anderson, not the left. But in a statement given by Mensah the cell phone and currency was on the passenger seat. In another document it is noted that during the search of Anderson’s pocket he felt a “faint pulse” on Anderson but never performed CPR which is department policy. An ambulance would not arrive for 12 minutes. In another document, Detective Lewandowski would interview fire/paramedics which is concerning because the detective would hold influence interviewing staff from the same city. In total around 20 Wauwatosa Officers conducted investigations while on the scene and the following days after Anderson death. The gun that was in Anderson’s car was also removed by a Wauwatosa Officer, and seen in squad car video. What is also alarming you can see officers remove the gun and proceed walking with their back to the camera intentionally and calling officers away from the view of the camera. This video was shared on the Never Stop Voices YouTube Channel. Wauwatosa PD inventoried Mensah’s gun and the bullets. When handling Anderson’s gun they did not inventory anything other than the gun “was cleared”. Later in a document 16 bullets would be inventoried along with one in the chamber. Harmoning testified that Wauwatosa PD should have only “safeguarded the scene” and “removed themselves once Milwaukee PD arrived”. No Wauwatosa Officer should have touched evidence, bottom line” Harmoning stated. There have been multiple conflicting reports that each contradict another.
Motley pressed on with questioning and asked if Harmoning had seen any documents that involved Chief Weber reviewing Anderson’s body. Harmoning testified that in an internal document Chief Weber admits to going to the ME’s office and reviewed the wounds on Anderson’s body, all which contradicts Weber’s Motion To Quash argument that Milwaukee was the only agency to conduct an investigation and that Weber had no knowledge of anything to do with Anderson or the investigation. Harmoning would testify that he has “concern with the chief being at the ME’s office because he would have great influence”. If Tlomak had no knowledge of Weber in the ME’s office and this visit was not logged, who let Weber in?
Speaking of Chief Weber’s blatant lies not only to the public and the courts, he also lied to Mensah’s new employer, the Waukesha County Sheriffs Department where in a letter of recommendation, Weber states that Mensah was “involved in three shooting incidents in our city. In each of them he was confronted by a person who was armed and refused to put down their weapon”. According to testimony and evidence in this John Doe Hearing that was ignored during the initial investigation is that Jay Anderson Jr. never reached for a weapon. It’s also factually true that Alvin Cole never pointed a gun at Mensah either.
The hearing adjourned there at 5pm and is scheduled to continue March 25th, 2021 as long as things stay on schedule. Harmoning is scheduled to continue testimony. Several more witnesses are scheduled to testify in later appearances. Quite a lot of evidence was presented that puts Wauwatosa Police Department once again in the spotlight and not for anything good. It is said that evidence presented in this hearing has not even begun to reach the most damming evidence against Mensah or Wauwatosa PD.
This is an ongoing story and we will continue coverage.
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