Police Like GOP’s John Doe Bill, Victims’ Advocates Don’t

The Senate Committee on Judiciary and Public Safety. (Photo | Isiah Holmes)

A Thursday legislative hearing brought together Republican lawmakers and pro-police lobbying organizations to argue that officers have been persecuted by activists, attorneys, and vengeful families pursuing vendettas.

“This bill – as it’s been called the ‘John Doe bill’ – really is intended to end the baseless investigations meant to harass police officers who are involved in an incident justifiably using self-defense,” said Sen. Rob Hutton (R-Brookfield), “unless there is new credible evidence presented before a judge.” Hutton was outlining the aim of Senate Bill 517  before the Senate Committee on Judiciary and Public Safety.

The call to legislate new protections for police officers and others who claim to have killed someone in self-defense has been criticized by lawyers and criminal justice advocates who say the bill will take away victims’ rights. Sitting beside Rep. Clint Moses (R-Menomonee) in a room packed with police representatives and Republican lawmakers, some of whom were former law enforcement officers themselves, Hutton explained the impetus for the bill.

Under current law, an afflicted party may call for a “John Doe” proceeding, in which arguments are made before a judge to consider further investigations into an incident. If the judge finds probable cause of a crime, then a criminal complaint may be issued and special prosecutors may be appointed to review and decide whether to pursue charges. SB-517, if passed, would eliminate the ability for citizens to seek this recourse in cases where they argue more inquiry is warranted. Denouncing what he called an “archaic” law, Hutton stressed, “this process is being used with more and more frequency against police officers.” In testimony Thursday, supporters of the effort to insulate police from the John Doe law pointed to just two cases.

A reaction to less than a handful of cases

In 2021, after protesters pounded the streets for months calling for police reform in southeastern Wisconsin, a John Doe proceeding was called in Milwaukee County to review the shooting of Jay Anderson Jr. in 2016. Anderson had been killed by former Wauwatosa Officer Joseph Mensah, who is now employed at the Waukesha County Sheriff’s Department. Anderson was the second person Mensah fatally killed within a year. In early 2020, Mensah was involved in another fatal shooting, totaling three in a five-year period.

At the time, Mensah had been the only Wauwatosa officer to fatally shoot anyone in nearly a decade. Anderson was killed after stopping  his car at a local public park late at night to sleep off intoxication after a birthday celebration. Following a John Doe hearing, Judge Glenn Yamahiro found probable cause that a felony had been committed by Mensah. Witnesses were brought to the stand who’d never been interviewed by the agencies that initially investigated the Anderson shooting. Questions were also raised about the evidence tampering at the scene by Wauwatosa officers, a lack of critical investigation, a suspicious lack of video depicting the shooting and a multitude of procedural and training issues linked to Mensah and other officers on the scene. Months passed before special prosecutors opted to not charge Mensah with a crime. Meanwhile, local law enforcement used drones to surveil the court hearings and press conferences.

Hutton claimed that the John Doe law had been used by “political activists to harass former Wauwatosa police officer Joseph Mensah, despite him being cleared of any wrongdoing after multiple investigations.”

“This obscure tactic was used also against ex-police officer Matthew Kenny,” he added, referring to a 12-year Madison Police Department veteran who killed 19-year-old Tony Robinson.

“This provision of Wisconsin statute is being abused to usurp the authority of an elected district attorney to re-evaluate the facts of a case, and reverse the decision to not issue criminal charges because the officer clearly acted in self-defense.” Hutton said.  “This bill will prevent courts from holding such hearings when the district attorney has refused to file charges because the person is acting in self-defense, unless there is new evidence presented that basically results in the fact that they were not acting in self-defense.”

Attorney Kimberly Motley, who took the Anderson case to court under the John Doe law, fears a change in the law would negatively affect crime victims. “I think that’s what’s getting lost in the conversation,” Motley told Wisconsin Examiner. Motley said that although the Mensah hearing is a key inspiration for this bill, it will “by and large affect victims of domestic violence, it will affect potentially victims of sexual assault, it will affect potentially victims of hate crimes from using this legislation to try to protect themselves if a district attorney or prosecutor chooses not to enact charges against perpetrators. And I think ultimately, it potentially makes society unsafe.” Other  lawyers and criminal justice advocates made similar arguments in  testimony against the bill.

Thais Marques, a Marquette University law student, testified as someone who has worked with domestic violence and harassment victims. “It would be bad for our criminal law system if we’re going to create more restrictions for people to file criminal complaints,” Marques told Wisconsin Examiner. “That’s already something that seldom happens…Obviously there are a lot more issues at play here.” Gregory Jones, vice president of the Wisconsin NAACP and president of the organization’s Dane County branch, agreed with Marques, saying the Republican bill is an attempt to restrict rights. “It says to me that we’re saying to the courts, ‘you can’t do something,’” Jones told Wisconsin Examiner. “We have said no, the courts is a fundamental conduit for justice and equality.”

Jones took issue with Hutton, Moses, and pro-police lobbying organizations who said the John Doe investigations are baseless. One witness advocating for the bill, as well as Republican committee members, insinuated that evidence could even be “fabricated” to get a case into court, which would be unlawful. Jones wonders where the real metrics and numbers are to support those claims. Jones feels the committee should request data from the county courts to support the notion that the law needs to be changed. Throughout testimony, supporters of the bill reference the Mensah and Kenny cases as examples of the law being used against police. As a result, Hutton and others said, police have low morale and  fear that they may be subjected to John Doe proceedings.

Attorney William Sulton told Wisconsin Examiner that the law change could benefit powerful people. “The legal standard for bringing criminal charges is probable cause,” Sulton explained. “And there are many cases where prosecutors have said, publicly, that they will not prosecute someone based on that standard, but instead will erect a higher standard — beyond a reasonable doubt.” Prosecutors may even declare an ethical duty not to bring charges against someone, unless they believe they can prove it beyond a reasonable doubt. In the Mensah-Anderson John Doe, this was the argument used by the special prosecutors in deciding to drop the case.

“But in fact, we know that prosecutors in our state regularly bring cases on the much lower standard of probable cause, and frequently argue in court that probable cause is a low standard,” Sulton said. “So there is great inconsistency there, and it appears that when these sweeping public statements are made, that they’re often made in cases involving government officials, or wealthy people, or people who have the resources to hire talented attorneys. Those folks are held to a different standard of ‘beyond a reasonable doubt,’ whereas everyone else is held to a lower standard of simply probable cause. So I think that is where victim rights groups will have, I think, problems with that change in law.”

Sulton also stressed that the John Doe statute is rarely utilized. “We’re talking about taking a sledgehammer to something that you don’t see very often,” he said. Motley’s use of the proceeding against a police officer was essentially unheard of at the time. Sulton also noted that in the case of Mensah, “They won,” referencing Motley and Anderson’s family. While the judge found probable cause for a crime, special prosecutors declined to take the next step. In that light, and that of the Robinson case, the John Doe process failed to result  in charges against an officer. Sulton said it makes him wonder why the law is so threatening to police and Republican lawmakers.

Fragmented opinions in a lop-sided debate

During his own testimony, Hutton recounted going on a ride-along with a local police officer. Hutton praised how the officer’s colleagues dealt with domestic violence situations, and was dismayed when he heard his guide was soon to leave the force. Hutton pointed to the use of John Doe against police as being responsible for a drop in morale and confidence, as well as further hurting recruitment efforts.

Moses, referring to Mensah’s John Doe case, said that the officer had killed someone in 2015. Mensah had in fact killed someone in 2015, though this was Antonio Gonzales whose case was not subject to a John Doe proceeding. In answer to a question from Wisconsin Examiner, Moses conceded he hadn’t followed the Mensah cases closely.

“I’m a little bit,” Moses said when asked how informed of the Mensah cases he was. “But I’ll be honest in my part of the state, media in the Milwaukee area is not real good. I get more Minnesota and Saint Paul and stuff. But I think this officer, obviously, was in some untimely situations is the best way to say it. But it was found that he acted in just cause in all cases.”

Asked whether he believed that the family members of people killed by police are victims as well as the police officer, Moses said, “Oh of course. They, in many cases, had no control over what happened just because a family member made a mistake, or had a life-altering event. The key to understanding this bill is if new evidence were to come forward, they could still open it back up again. It could be re-litigated, but this particular bill limits to if there is absolutely no new evidence, they can’t just continue to [bring investigations] over and over again.”

Andrew Wagner, president of the Milwaukee Police Association, disagreed with the notion that families are victims, too, in these cases. The association did not testify on the bill but registered in support of it. “I mean, I think every loss of life is tragic in every situation,” Wagner told Wisconsin Examiner. “Any time you lose somebody, you’re put into a position where that’s never a good thing.”

However, Wagner added, “If you look at a strictly legal aspect of victim vs. suspect, you don’t consider ‘family’ inside of a legal aspect of ‘victim’. So if a suspect goes out and batters somebody, is their family affected? Sure. But technically in a legal aspect, they’re not considered the victim, too. So we don’t look at it that way.”

As for the purpose of the bill,  “Our hope is that it just prevents anybody that has self defense would not have to be subject to the same type of thing year after year after year where they’re brought before charges or whatever. Everybody should be able to move on with their life after a certain period of time.”

During the 2022 Wisconsin  governor’s race, Republicans argued that judges needed more discretion and flexibility within the state constitution to consider factors in setting higher cash bail. As part of a public campaign for tough-on-crime laws, press conferences featuring crime victims from suburban communities were held at the Milwaukee Police Association’s headquarters in which speakers argued that the Milwaukee district attorney was failing in his duties to keep criminals locked up. The John Doe bill would move things in the opposite direction, taking discretionary power away from judges and granting more weight to a DA’s ruling. Neither Moses nor Wagner felt this was a contradiction. “Not necessarily, because it’s limiting the amount of times that this can keep coming back,” said Moses. “Say you have a new DA that wants to re-open the case, that would actually give more flexibility to that DA. This makes it a little more restrictive, because once that DA has already made a decision on it, it’s closed unless there’s new evidence.”

Wagner said, “I don’t think it moves in a completely opposite direction. I think it moves in the direction of fairness for people to not have to receive double jeopardy over and over again,” he explained. “I think that’s in our constitution. We should be free of prosecution…everybody should be. And not have to worry five years down the road if somebody can bring this up again after it’s already been justified as self-defense.”

Hutton did not respond to a request for comment on the bill ahead of the Thursday hearing. After the hearing, Hutton said he was late to a meeting and he was still unavailable later in the day.

During the hearing, police officers who testified were thanked for their service, courage, and testimony and asked detailed questions. Several committee members and witnesses condemned the families of people killed by police who’ve brought John Doe cases for having “vendettas” and seeking “retribution.”

When NAACP Vice President Jones and Marquette law student Marques testified, committee members appeared distracted and asked no questions. Jones said he wasn’t surprised, adding that he couldn’t help but notice that, besides a Senate staffer, two journalists and the Milwaukee Police Association’s vice president, he seemed to be among the only people of color in the packed room. Jones added that he suspected that Republican members of the committee expected no opposition to show up to testify against the bill.“They were not prepared, didn’t expect it, didn’t know how to respond to it,” he said. “But that’s Wisconsin,” said Jones. “I mean the culture was clearly demonstrated, and that’s OK.” Still, Jones implores elected officials to keep an open mind and to “debrief” on the bill even after a hearing is done. “When they get in these committees like this, they have to leave their baggage at the door.”

Republican John Doe bill praised by police, criticized by advocates for police victims was originally published by Wisconsin Examiner