Updated Thursday at 9:13 a.m. CDT
A Wisconsin judge on Wednesday found probable cause to charge a police officer in the 2016 slaying of a Black man who was sitting in a parked car, taking the rare step of overruling prosecutors years after they declined to charge the officer.
Milwaukee County Judge Glenn Yamahiro said probable cause existed to charge Joseph Mensah with homicide by negligent use of a weapon in Jay Anderson Jr.’s death. He will appoint a special prosecutor to formally file the charge within 60 days.
Yamahiro’s decision marks a victory for Anderson’s family, who took advantage of a little-used provisionin state law to ask the judge for a second look at the case.
Mensah, who is also Black, discovered the 25-year-old Anderson sleeping in his car at 3 a.m. in a park in Wauwatosa. Mensah said he shot Anderson after Anderson reached for a gun, but Anderson's family disputes that and the judge on Wednesday said the evidence did not back up Mensah's version of events.
Mensah's attorney Jonathan Cermele criticized the decision and said Yamahiro heard evidence “from one side and one side only.”
“We weren’t able to be involved, we weren’t able to cross-examine or provide witnesses,” he said. “The judge made a call on a very limited amount of evidence.”
Anderson was the second of three people Mensah shot to death during a five-year stint with the Wauwatosa Police Department. Prosecutors cleared him of criminal wrongdoing in each case.
Anderson’s family asked Yamahiro to review that case under an obscure state law that allows judges to directly question witnesses and decide whether probable cause exists to bring charges in what’s known as a John Doe proceeding. At least six other states have similar statutory provisions, but attorneys say the process is rarely used in Wisconsin.
The judge said he decided that the single charge against Mensah was warranted based on testimony about the circumstances of the shooting.
Sitting behind plexiglass panels and speaking through a face mask, Yamahiro laid out in detail the evidence for close to an hour.
"The evidence has shown that on June 23, 2016, Officer Mensah drove into Madison Park parking lot in 3:01 a.m., and positioned his
vehicle approximately two car lengths facing the Anderson vehicle with his high beam lights on and his emergency flashing blue and red lights off. Failure to activate the emergency lights is significant because doing so would have automatically activated the dash camera of Officer Mensah’s SUV squad car," the judge said.
Mensah should have been aware that pulling his weapon on Anderson created an unreasonable risk of death, Yamahiro said. And he said, Mensah could have taken steps to deescalate the situation, including waiting for backup that was on the way.
Anderson's behavior was consistent with someone who was intoxicated, had been asleep and was trying but having difficulty complying with Mensah's orders, Yamahiro said.
The evidence did not back up Mensah's claims that Anderson was pretending to be asleep or that Anderson lunged for his weapon, the judge said.
The judge also noted problems with the investigation and cited what he said were structural defects with having neighboring law enforcement agencies investigate one another and nearby district attorneys make charging decisions.
, experienced the reaction in the courtroom. "Him being killed did not make sense and it should not have happened at all. So I think the tears was some level of validation that what they’ve been fighting for and they believe was correct and I am thrilled that the judge agreed with us. This was not easy," she said.
Motley believes the John Doe process brought evidence to light that the public had never heard before. She said it’s critical for the public to be engaged in this case as it moves forward. "We all know a Jay Anderson. We all know a young guy who has a daughter who is just a good guy. And his daughter is now six years old, she will never have Jay Anderson in her life. You have a right to fight for justice as long as you do it within the legal avenues. I hope people understand and understand this is still a legal process and we all need to see how this plays out."
Mensah joined the Wauwatosa Police Department in 2015. That year he fatally shot Antonio Gonzales, who identified as Latino and American Indian. Prosecutors said Gonzales refused to drop a sword.
The Anderson shooting came the next year. Then, in 2020, Mensah fatally shot 17-year-old Alvin Cole as Cole fled from police during a disturbance in a mall. Mensah said he shot Cole, who was Black, after he pointed a gun at him. That set off months of protests. Milwaukee County District Attorney John Chisholm’s decision not to charge him in that shooting led to more protests in Wauwatosa in October.
Mensah remained under pressure even after being cleared in Cole’s death and resigned in November.He collected a $130,000 severance payment and now works as a Waukesha County deputy.
Wauwatosa’s new Police Chief James MacGillis, just three days into his job, said he reached out to the Anderson family after the Wednesday decision. He said he’ll both be scrutinizing his department’s policies while working toward community trust.
MacGillis said, "And my role here is to lead this department moving forward to establish that community trust, to rebuild that trust and help the community with its healing; but again, never losing sight of the people involved — that’s the officers, and members of the community and the families."
Waukesha County Sheriff Eric Severson, who hired Mensah as a deputy in January, released a statement saying he “will be reviewing all of his options, and will have a more detailed statement and decision forthcoming.”
Attorney Motley also represents the Gonzales and Cole families. She said she is considering invoking the John Doe process for them.
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Associated Press writer Doug Glass contributed to this story.
