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Judge With Alleged Conflict of Interest Finds Probable Cause Joseph Mensah Committed Homicide

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Judge Glenn Yamahiro, whose ex-wife and the mother of his child has represented the families of men shot by former Wauwatosa Police Officer Joseph Mensah, used a rare John Doe procedure on Wednesday to find probable cause that Mensah committed homicide by negligent handling of a dangerous weapon in the death of Jay Anderson five years ago.

Yamahiro’s decision, which is unheard of in Wisconsin, runs counter to the decision years ago of an elected prosecutor and former prosecutor. Mensah was already cleared in the 2016 death of Anderson by the elected district attorney John Chisholm and by former US Attorney Steve Biskupic in a report as an independent investigator. Furthermore, a federal review amounted to nothing, and the Milwaukee Police Department did an exhaustive review at the time.

He will appoint a special prosecutor to consider whether to bring a homicide charge. Remember that any charges would need to be proven beyond a reasonable doubt before a jury. That’s a higher standard than probable cause.

[Read our story: 14 key facts to remember about Yamahiro’s decision here.]

In 2016, John Chisholm, the DA, “told Anderson’s family that Mensah’s actions were justified self-defense when he saw Anderson’s hands drop during their interaction,” the Milwaukee Journal Sentinel reported in 2016. Former US Attorney Steve Biskupic also found after a 2020 review that there was insufficient evidence to find Mensah did anything illegal. Biskupic wrote that Mensah said he repeatedly told Anderson not to reach for a firearm on Anderson’s car seat and fired when Anderson reached toward it anyway. Mensah’s lawyer has said Motley doesn’t have any new evidence.

Yamahiro, and only Yamahiro, found otherwise.

“The court finds probable cause that Officer Mensah committed the crime of homicide by negligent handling of a dangerous weapon,” said Yamahiro, citing testimony by a slew of defense experts, including one whose credibility has been challenged.

“This record is filled with testimony of alternative choices that Officer Mensah could have chosen…without shooting Mr. Anderson, including waiting for back up that was already under route.”

He said there was probable cause to believe that Anderson “never lunged for a weapon.” He said the case would be adjourned for 60 days for the court to appoint a special prosecutor.

The charges come at the request of the attorney for Anderson’s family, Kimberley Motley. Yamahiro’s ex-wife, Deja Vishny, was listed as an attorney on the John Doe hearing for the Anderson family for about a week before withdrawing. Vishny works for Motley’s law firm on an “of counsel” basis. Vishny has worked extensively with Motley as a legal team in her persistent efforts to get Mensah charged with homicide. Yamahiro and Vishny also share a child together; Vishny has served as a high-profile Anderson family attorney in the Mensah matters alongside Motley for months.

State law did not allow Mensah’s lawyer to cross examine witnesses during this hearing as he was not a defendant; he did not testify.

Mensah was cleared in two other fatal shootings of men who had weapons at the time. Yamahiro was only asked by Motley to consider a homicide charge in the Anderson death.

It’s unheard of for a law enforcement officer to be charged by a judge after being cleared by prosecutors in Wisconsin, and only a few states have a provision that allows any citizen to request they do so, which was utilized here. (We previously wrote an opinion piece urging the Legislature to close this loophole.)

In a lengthy hearing that started at 10 a.m., Yamahiro went through a detailed description of evidence in the case. That included citing testimony from an expert whose credibility has been questioned.

William Harmening, the Jay Anderson family “expert” who testified against former Wauwatosa Police Officer Joseph Mensah in a new effort to get Mensah criminally charged in the six-year-old shooting death, was rejected as an expert in another police shooting case because a federal judge believed he “lacked the needed expertise” in key areas.

In addition, Wisconsin Right Now found that the professor – who told a judge that Mensah’s use of force was not “reasonable” – was previously accused of presenting a conclusion against a police officer that was “riddled with errors.” Harmening’s expert testimony was limited in other cases, and another judge raised questions about some of his findings. In a Fresno case, he was accused of injecting “mere speculation and conjecture” into his testimony. Read our story on Harmening here.

Mensah is now a Waukesha County Sheriff’s deputy.


What Happened to Jay Anderson Jr.?

The previous report by former U.S. Attorney Steve Biskupic, who said there was insufficient evidence to charge Mensah, gave these details:

On June 22, 2016, Anderson left his home to meet a close family friend at a bar in Milwaukee. Biskupic says that “friends and family members describe Anderson as mild-mannered and pleasant to be around. He was a proud father. Occasionally the stress of having young children at home caused Anderson to want a break to hang out with friends to drink and smoke marijuana.”

Anderson possessed a firearm, a Ruger model SR9c, 9mm, semi-automatic pistol. A friend of Anderson said Anderson possessed it for safety because he lived in a dangerous neighborhood. The gun was purchased by a third party Anderson knew through pick up basketball. How and when it came into Anderson’s possession is unknown.

Anderson had a prior misdemeanor conviction for possession of a firearm while intoxicated.

That night he consumed brandy and smoked marijuana with a friend, who suggested that Anderson go home. His blood alcohol level several hours after leaving the bar was still 0.11. Instead of going home, he drove alone to Madison park in Wauwatosa. The friend said he went there to “chill” and relax.

He entered the park at 1:37 a.m. He likely smoked more marijuana (the car was still filled with marijuana odor when examined by police officers an hour and a half later; and a very small amount of marijuana residue was in a paper fold in Anderson’s pocket.)

Biskupic believes Anderson “likely fell asleep while sitting behind the wheel of the car. His loaded firearm was on the front passenger seat next to him.”The parking lot that night was very dark.
The park was closed per Milwaukee County ordinance.

Mensah driving a Wauwatosa Ford Explorer SUV, entered the parking lot at 3:01 a.m.

He became a probationary police officer on 2015. He completed his probationary period on 2016. He was previously a Dane County deputy sheriff and UW-Madison patrol officer. He was “well-liked by his colleagues and considered by them to be a good officer. His fellow officers continue to strongly support him.” Mensah’s personnel file contains only one disciplinary incident, a letter of reprimand for negligently causing a minor collision. His file contains 14 pages of commendations from citizens and other police departments.

The evidence of what happened is in Mensah’s statements, limited recorded dispatch audio and limited videotape activated by Officer Mensah after he shot Anderson.

Mensah drove into Madison park on routine patrol. The report gave Mensah’s account to another investigator.

It says that he stated that he went to do a park check. The park was extremely dark. He approached Anderson’s vehicle and activated his lights. He thought he saw movement in the vehicle. He approached the vehicle from the passenger side. He used a flash light. He observed the driver was “breathing fast” as if nervous or scared and was lying back against the car seat. He felt he was faking being asleep.

He tapped the passenger front window and announced his name and didn’t get a response. After tapping a few more times, the drive woke up and looked at Mensah, he scanned his uniform and then looked down toward the front passenger seat, and then shrugged his shoulders and closed his eyes, leaning back in the seat.

Officer Mensah reintroduced his name and said “Wake up. Gotta talk to you.” He also said he was with the Wauwatosa Police Department. The drive woke up again, turned the key, and rolled down the window. Mensah asked for an ID. The driver said no.

Mensah was standing an arm length away from the passenger front door. He observed the driver make several glances over to the passenger front seat then back up at him.

Mensah asked the driver if he had anything that would identify his name. The driver said no. Mensah became concerned the driver made several separate and distinct glances toward the passenger front seat. He stepped forward and looking into the interior of the vehicle. Mensah observed a handgun with extended magazine on the front seat.

He said it as hazy with the exact chain of events moving forward but he believed he immediately unholstered his weapon, kept it close to his body and pointed the barrel down tot the group. “I see the gun! Keep your hands where I can see them!” he said.

The driver initially complied and placed his hands in the air about chest or shoulder height. “However he suddenly reached toward the seat with his right hand while looking at the weapon (on the seat.) Mensah stated he immediately moved his weapon to the high ready position and ordered hand’s up and radioed he has a gun! Step it up! The driver placed both hands in the air stating , ‘What? There’s nothing there! It’s nothing!”

Mensah said, “I see the gun! Don’t reach for it!” The driver again reached toward the front passenger seat. Mensah ordered, “Stop reaching for the weapon!” The driver pulled back and said, “It’s nothing.” Mensah said the driver made at least four separate movements with his right arm toward the front passenger seat. Each time Mensah ordered him to stop and the driver returned both of his hands into the air.

Mensah stated the last time the driver made a movement, instead of just his right arm moving toward the gun on the seat, his whole body lunged toward it. Mensah yelled, “Keep your hands up,” but the driver did not comply and Mensah discharged his weapon 3-4 times, Mensah told investigators.

He felt exposed because he was in an open parking lot without any cover. He said he discharged his weapon because he knew the firearm was on the passenger front seat of the vehicle. He stated he ordered and pleaded with the driver numerous times to not reach for the weapon. He shot because the driver reached for the weapon and he believed the driver was going to use it against him.

Previous checks of the park resulted in illegal drugs, stolen cars, and foot pursuits, etc. The squad video shows Mensah standing outside the passenger door with his right arm extended. A subject is sitting in the driver seat and his right arm can be observed in the air. The driver was moving around with both hands in the air. Then, the driver’s right hand was moving side to side. Then movement by the driver is observed and the right hand can be seen extending toward the passenger front seat. The right hand dropped from view. That’s all according to the Biskupic report.

The medical examiner report says Anderson was struck by four of the six gunshots from Mensah’s firearm. Three shots struck Anderson in the head.


The Judge’s Alleged Conflict of Interest

The judge’s ties to Vishny were raising serious concerns about fairness in some corners for months, yet it hasn’t been explored at all in the news media.

For months, Vishny and Motley have been joined at the hip in calling for criminal charges against Mensah, working as lawyers for the Anderson family, firing off a letter opposing a settlement agreement that Mensah entered with the city, demanding open records in Mensah’s cases from the city, challenging curfew violations, and standing arm-in-arm at press conferences calling out Mensah and Wauwatosa in the strongest of terms.