Wisconsin legislators left police officers at the mercy of the John Doe Law. This is wrong, and it should be changed.

A travesty of justice is unfolding in a Milwaukee County courtroom, where an already exonerated (many times) police officer is having to rely on the fairness of a former public defender/Jim Doyle appointed judge whose ex-wife and the mother of his child has been calling for the officer to be criminally prosecuted for months.

Judge Glenn Yamahiro outrageously found probable cause that former Wauwatosa Police Officer/now Waukesha County Sheriff’s Deputy Joseph Mensah committed homicide in the shooting death of Jay Anderson, which occurred five years ago. He then appointed not one, but two, special prosecutors to ultimately determine whether or not to charge Mensah, who was cleared in MULTIPLE reviews YEARS ago by everyone from the elected District Attorney to federal authorities.

This hearing shouldn’t be happening in the first place.

The fact that it is happening is the fault of the Wisconsin Legislature. However, the legislature can change this. If they don’t, we fear the Anderson case could set an extremely dangerous precedent for Wisconsin law enforcement. [Update: In March 2022, months after this story first ran, another petition in an old Madison police shooting death, that of Tony Robinson, was filed with a judge. The Legislature has failed to act.]

Here’s what happened in the Mensah case. BLM Attorney Kimberley Motley has used a little-known section in the state’s John Doe law to ask a judge, in this case, Yamahiro, to issue criminal homicide charges against Mensah, basically usurping the authority of the elected DA who already cleared him. One of her witnesses was a man whose expertise has been questioned.

Mensah, of course, has already been cleared. And cleared. And cleared again. He was cleared by the elected district attorney, John Chisholm. A federal investigation resulted in nothing. Years ago. He was cleared by an independent investigator, former US Attorney Steve Biskupic, who wrote that there was insufficient evidence he did anything unlawful.

The Milwaukee Police Department did an exhaustive investigation, which you can read here. 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.

Yet this little-known loophole in the state’s John Doe law (read it here) is allowing Motley, years later, to pass the “should he be charged ball” to a man with an arguable ethical conflict on the case. Even if Yamahiro didn’t have that conflict of interest (his ex-wife has worked hand-in-hand with Motley on the Mensah cases, including Anderson’s death), this would be wrong. As the Chicago Tribune put it, Anderson’s family and their lawyer, Motley “invoked a rarely used legal process in a bid to get around prosecutors who cleared the officer.”

Wisconsin’s John Doe Law

Republicans in the state Legislature saw, years ago, how dangerous John Doe laws can be when they are used as a political cudgel. We are talking, of course, about the sweeping Joe Doe investigation into former Gov. Scott Walker and his aides. After that mess, the state legislature acted to rewrite the Doe statutes, and they exempted a series of political crimes that could affect legislators. We acknowledge that John Doe laws serve an important function in some instances, such as when DAs use them to compel witnesses to testify under oath in a major drug case or murder.

The Legislature limited John Doe investigations to certain crimes, such as violent felonies and drug crimes.

Outrageously, perhaps not predicting the current rush to judgment vitriol against law enforcement, the Legislature EXPRESSLY included law enforcement officers as falling under the John Doe laws, which reads that it also covers “any conduct that is prohibited by state law and punishable by fine or imprisonment or both if the individual who allegedly participated in the conduct was a law enforcement officer; a correctional officer; or a state probation, parole, or extended supervision officer and the individual was engaged in his or her official duties at the time of the alleged conduct.”

To be clear, we are not arguing that police officers should not be investigated in use-of-force deaths. What we’re arguing is that it’s wrong to have a rare law that allows a judge to usurp the decision-making of an elected DA in these cases and issue charges that the DA already found unwarranted. We are concerned by the provision in the statutes that was used here and which allows any citizen to petition a judge to hold a hearing and possibly charge officers in line-of-duty deaths.

In 2016, 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.

Wisconsin legislators left police officers at the mercy of the John Doe Law. This is wrong, and it should be changed.

Even worse, according to the Tribune, the John Doe Laws allow a judge to “initiate the investigation and decide whether to run it publicly or in secret. The citizen or his or her attorney can question witnesses in front of the judge with no cross-examination.” The judge then decides whether to issue criminal charges and appoint a special prosecutor to handle them in court.

In this instance, Yamahiro opted to hold the hearing in public, but it’s shocking that he could have chosen to do this in secret and that there is no place for Mensah’s lawyer at the table (because he’s not a defendant yet; it’s a proceeding to determine whether charges should be filed). Still, it doesn’t feel fair. The Tribune could only come up with six other states with such a provision; the newspaper said that, in Wisconsin, citizen Does only happen about once or twice a decade. We’re worried the Mensah case could give BLM activists ideas since any one of them could ask a judge to review any past police shooting.

Ballotpedia says of the law’s secrecy provision:

“The extent to which the judge may proceed in an examination under sub. (1) or (2) is within the judge’s discretion. The examination may be adjourned and may be secret. Any witness examined under this section may have counsel present at the examination but the counsel shall not be allowed to examine his or her client, cross-examine other witnesses, or argue before the judge. Subject to s. 971.23, if the proceeding is secret, the record of the proceeding and the testimony taken shall not be open to inspection by anyone except the district attorney unless it is used by the prosecution at the preliminary hearing or the trial of the accused and then only to the extent that it is so used. A court, on the motion of a district attorney, may compel a person to testify or produce evidence under s. 972.08 (1). The person is immune from prosecution as provided in s. 972.08 (1), subject to the restrictions under s. 972.085.”

We have elected District Attorneys for a reason. It’s their job to decide whether to charge. If you don’t like their decision, there’s an effective recourse: Vote them out. It’s simply wrong for a random judge to be able to usurp the decision-making of an elected DA and criminally charge a police officer for a shooting already ruled justified, years ago. It’s wrong for that officer, even if exonerated yet again, to have to go through the stress and pressure of such a proceeding years later, with John Doe Law acting as an ever-present Damocles’ sword.

No Time Limits

We are also concerned that there is no time limit on this. Witness memories and evidence is not as fresh years later as it was when the DA first reviewed this case. It’s outrageous that a judge could criminally charge Mensah five years after he was cleared, even if this judge chooses not to do so.

Can you imagine the floodgates this could open? Which shooting death should we open up next? Find a liberal Doyle-appointee judge to look at any old police shooting in the current climate, and all bets could be off.

Legislators, please close this loophole. And do it now. (And, yes, we get that Gov. Tony Evers would veto it, but that’s another story.)