Special Prosecutors Won’t File Charges in Jay Anderson Killing

The brilliant sun and bright blue sky over Milwaukee on the first day of June didn’t penetrate the downtown Safety Building and circuit court where, on Wednesday, the parents of Jay Anderson Jr., dressed in black as if in mourning, navigated the massive concrete complex’s long hallways toward a courtroom. This was the day the public was to learn whether charges would be issued against the officer who killed Anderson nearly six years ago. The dozens of supporters who filled the courtroom were unaware of what Anderson’s parents, Jay Sr. and Linda, learned the night before. No charges would be issued against former Wauwatosa police officer Joseph Mensah, who was hired by the Waukesha County Sheriff’s Department last January.

The final decision not to pursue charges against Mensah largely hinged on proving beyond a reasonable doubt that a crime had been committed. That was the point special prosecutors Scott Hansen, of the Milwaukee-based law firm Reinhart Boerner Van Deuren, and La Crosse County District Attorney Tim Gruenke returned to repeatedly throughout Wednesday morning.

“One thing that we can prove beyond a reasonable doubt is that officer Mensah intentionally shot, and caused the death of Jay Anderson,” Hansen said during the court hearing before Milwaukee County Circuit Court Judge Judge Glenn Yamahiro. People in the gallery who cheered at the statement were immediately chastised by the judge. “The other part of it is that we have to prove, beyond a reasonable doubt, that officer Mensah was not exercising his right to self-defense when he shot him,” Hansen continued. “If we can’t prove that unanimously to a Milwaukee jury, beyond a reasonable doubt, then we can not convict him of a crime.”

What lies beyond a reasonable doubt?

In July 2021, when attorney Kimberley Motley asked Judge Yamahiro to look at evidence in a John Doe investigation, the judge found that probable cause existed to charge Mensah with Anderson’s death. The 25-year-old was asleep in his car, sitting in a park at nearly 3 a.m. when Mensah approached the car. Less than 30 seconds of mute dash footage is all that was captured of their interaction. Mensah didn’t activate his squad’s flashing emergency lights, which would’ve automatically activated the camera. Rather, he shined his squad’s bright take-down lights through Anderson’s windshield. At the time, Wauwatosa Police Department (WPD) officers were also not equipped with body cameras. It was only after Mensah shot Anderson that he remotely activated his squad’s camera, which had recorded the prior 30 seconds without sound. Anderson was shot after his arms lowered multiple times. While Mensah stated he was reaching for a gun, Anderson’s family asserted he was intoxicated and falling back asleep.

The John Doe hearing re-examined the many lingering questions in the case. Within the 25-page special prosecutor report, charges of first- or second-degree intentional homicide, and first- or second-degree reckless homicide were explored. Hansen said in court that “the decisive question that we ultimately focused on was self-defense.” He added that this “required us to look at what the parties were doing, what Mr. Anderson was doing just before Mensah shot him, that might have caused a reasonable person to fear for their lives.”

For the special prosecutors, the “key piece of evidence,” Hansen noted, was the dash camera video. “We looked at that. I personally looked at that video countless times. I looked at the stills, I’m sure that Mr. Gruenke did, too. I showed it to probably over 30 people, lawyers, criminal defense lawyers, civil lawyers, retired judges, sitting judges, that are not involved in this case. And I know that Mr. Gruenke did as well; we were trying to get as wide a view as possible.”

Hansen and Gruenke also convened a “mock jury” of nine Milwaukee County residents eligible for jury duty. Wisconsin’s self-defense laws were explained to the mock jurors, Hansen explained, before they  viewed the video and stills. “The overwhelming result of all of that was that people believed that that motion that Mr. Anderson made seconds before he was shot was enough to cause somebody in Mensah’s position to fear that if he didn’t shoot first, he was going to be shot himself.” The prosecutors discounted blood spatter evidence and Anderson’s through-and-through gunshot wounds, which suggested Anderson wasn’t lunging for the passenger seat, as inconclusive. They stated the Medical Examiner was unable to determine which shot landed first, and that blood was found on one of the passenger windows.

We’ll never know the identities of the mock jurors. “Their names won’t become public,” Hansen told Wisconsin Examiner. “In fact, we only know them by their first names and last initial. The firm that interviewed and recruited them promised them confidentiality.” Nevertheless, the outcome of the mock jury affected the prosecutors’ confidence that they could prove wrongdoing beyond a reasonable doubt. Recalling the conversation with the Andersons, Hansen said in court, “You could see the pain that the family has gone through. This wasn’t fair to them. They didn’t do anything to deserve this. And I’m only sorry that there’s nothing that we can do to help heal those wounds.”

Motley countered that legally  the special prosecutor and John Doe process require a criminal complaint to be filed. “Although there’s very limited case law on this statute, there are some cases that we believe support this.” She asserted that since Hansen and Gruenke felt they couldn’t prove the case beyond a reasonable doubt, new prosecutors be appointed. “We don’t believe that the current special prosecutors have the right to override, frankly, what this court has done. This court has found that there is probable cause.” Yamahiro countered Motley’s request to withdraw the prosecutors calling it, “erroneous in several respects.” The judge noted that one of the cases Motley relied on, of which just two exist in the state of Wisconsin, occurred before the statute was changed from the court “shall” issue a charge to “may.”

There’s also the issue of “officer induced jeopardy,” wherein officers resort to force after unwisely putting themselves in danger. Yamahiro conceded that the record shows, “that officer Mensah did not follow his training here in many respects. And to that extent, there is certainly an argument to be made that he created the risk that led to the shooting of Mr. Anderson. That entire line of logic has been eliminated by the Supreme Court.” The judge added that, based on Supreme Court decisions, “you can create the risk, you can break the law in doing so, and you can still claim self-defense. And that’s a heavy burden to overcome, and that’s a burden any prosecutor would have to overcome in this case. And it largely makes a lot of that evidence less relevant.”

“There are many legal issues with proving this case beyond a reasonable doubt,” he added.

Contaminated evidence and an indictment of the system

Since finding probable cause in the case, Yamahiro has had no qualms about discussing the case’s many problematic features. The handgun which Mensah said was in the passenger seat remains one of the biggest problems. Two Wauwatosa officers, Ralph Salyers and Stephen Mills, were involved in removing the handgun from Anderson’s car before outside investigators arrived to take over the scene.

They were among those officers who were offered immunity by Hansen and Gruenke in exchange for testimony. However, that immunity only applied to what they said in their interviews. Neither Mensah nor former Wauwatosa Chief Barry Weber were interviewed by the prosecutors. Mensah communicated through his lawyers and only in writing; the prosecutors felt Weber wouldn’t have anything to add to the investigation.

When asked by Wisconsin Examiner how Salyers and Mills could justify moving the gun by saying Anderson was still a threat, after already saying that he didn’t have a pulse and was not breathing, Hansen simply replied, “exactly.” Hansen added that he felt the officers had a “spur of the moment” reaction to the gun.

Despite Wisconsin law requiring that officer-involved shootings be investigated by an outside agency, Wauwatosa PD remained present throughout the 2016 investigation. Wauwatosa detectives, some of them from WPD’s Special Operations Group, went to the medical examiner’s office as Anderson’s body was inspected. WPD detectives also canvassed the neighborhood for witnesses and gathered video from a nearby school days after the shooting had been turned over to the Milwaukee Police Department.

Less than a month after shooting Anderson, Mensah was reassigned from patrol to temporary light duty in the Wauwatosa detective bureau, where he reported to a lieutenant who acted as the “investigative commander” on the scene of Anderson’s shooting prior to Milwaukee PD arriving. At some point WPD also obtained reports generated by MPD after Anderson’s cell phones were downloaded. One of the phones remains at WPD to this day.

Anderson’s shooting was investigated by Milwaukee PD, through the Milwaukee Area Investigative Team (MAIT). The team is comprised of  a rotating cast of investigators from every local department, allowing various departments to investigate each other’s shootings. MPD and WPD have both investigated one another’s officer-involved shootings several times.

“There are always going to be a lot of unanswered questions here, unfortunately,” Yamahiro said, adding that “there were mistakes made here, there’s no question about that.”

The judge decried the fact that the gun was moved by the same officers who also couldn’t recall where they retrieved Anderson’s State I.D. card, when Mensah said Anderson denied having one. “There are a lot of unanswered questions that will never be answered, I believe,” Yamahiro said . The case also highlighted what Yamahiro called “systemic” criminal justice issues, “such as the selective use of body cameras, which continues to be a problem. Could be very easily remedied by the Legislature. I don’t know why we have the turning on and turning off of body cameras, squad cameras, any other type of camera that’s going to lend transparency and legitimacy to what people are doing.” Yamahiro further admonished MPD investigators for not  recording Mensah’s interview, and called the MAIT “although well intentioned,” “fatally flawed.” Officers who rely on one another “should never be put into the position of investigating each other,” said Yamahiro.

During a press conference, Gruenke noted that officers are placed in awkward positions during investigations. “That officer is a victim, also potentially a suspect, and also a responding officer that’s required to write a report in his employment,” the district attorney of La Crosse County said. “And when we start doing a criminal investigation, or even a civil lawsuit, like Scott said, you can see how these interests become at cross purposes, and it’s harder to get answers because there’s things hanging over people’s heads.” Gruenke told Wisconsin Examiner that he’d prefer if a state agency conducted the investigations, rather than local departments through MAIT, “so there is more of a distance between local officers.”

Nevertheless, both Gruenke and Hansen felt the team didn’t botch the Anderson investigation beyond repair. “I didn’t see anything in the investigation that I thought was covered up, or a conspiracy, or anything hidden,” Gruenke told Wisconsin Examiner. “It’s not unusual to have local agencies help the investigating agency like canvassing a neighborhood. This isn’t a case where I think there was any evidence lost by doing that, or compromised by doing that. I understand some people question the integrity of that, and that’s fair. But at the same time, I don’t see that there was any evidence that was manipulated or hidden by those activities. The main evidence of this incident was the video, and that was preserved. The rest of it, it would be better if they hadn’t done it. But I didn’t see anything that I saw that was dishonest or hidden.” Gruenke told Wisconsin Examiner that he didn’t feel that his own involvement in the John Doe investigation would negatively impact his standing as a prosecutor in the eyes of officers he works alongside in his capacity as La Crosse County district attorney.

Moving forward

Motley stated that she will continue legal actions in Anderson’s case, and others related to Wauwatosa PD. Currently, both Anderson’s family and the family of Alvin Cole, a teen killed by Mensah in 2020, have ongoing civil cases. Additionally, Motley noted, the statute of limitations doesn’t run out on homicide charges. Hansen and Gruenke, in their 25-page report, recommended a legislative avenue to prevent similar situations in the future.

A bipartisan bill with support from the Wisconsin Bar Association, AB-112, died when the Legislature ended its last session early, but it could be revived in a future session. The bill would create an independent use of force review advisory board, which would conduct independent investigations of deaths and serious injuries to police officers, and officer-involved shootings. Similar to aviation review boards, the board would analyze such incidents to recommend policies to prevent repeat episodes.

Anderson’s family and their supporters are undeterred. “We will be moving forward with our federal case,” said Motley. “We will be deposing Joseph Mensah, we will be asking him questions under oath, we will not stop fighting.” Linda Anderson, Jay’s mother, echoed that resolve. Saying she felt “the best way I can,” Anderson said, “I’m going to keep dealing with it because, like Kim said, we’re not finished. I’m not finished fighting. I want Joseph Mensah in jail, so we’re going to continue to fight.” When asked what she’d say to Mensah if she could speak to him Anderson said, “I’m not going to stop until you’re in jail. And I’m not scared of you.”

Special prosecutors won’t pursue charges in Jay Anderson case was originally published by the Wisconsin Examiner.