Wisconsin judge finds probable cause to charge police officer in fatal shooting

A judge announced Wednesday that he has found probable cause to bring homicide charges against a Wisconsin police officer, five years after a local district attorney declared the officer was justified in his use of deadly force on a man he found sleeping in a car in a suburban Milwaukee park.

Milwaukee County Circuit Judge Glenn Yamahiro said at a hearing that there is probable cause that former Wauwatosa police officer Joseph Mensah committed the crime of homicide by negligent handling of a dangerous weapon when he killed 25-year-old Jay Anderson Jr. in 2016.

"This decision has not been taken lightly, nor was it predetermined. It is the result of a careful and extensive review of the evidence in this case," Yamahiro said.

Yamahiro came to his conclusion after holding a rarely used "John Doe hearing," which provides a forum and a procedure in Wisconsin for a citizen to ask a court to review a district attorney’s decision not to issue criminal charges in cases where the citizen believes one or more crimes have occurred.

“There is reason to believe, based on the testimony, that Officer Mensah created an unreasonable, substantial risk of death," Yamahiro said as he read his lengthy decision in a courtroom packed with Anderson's relatives.

Yamahiro said he will appoint a special prosecutor within 60 days to review the case and "decide which charge or charges, if any, they believe can be proven beyond a reasonable doubt, a far higher standard than probable cause."

Anderson's loved ones, including his parents, burst into tears and applause upon hearing the judge's decision. Outside the courtroom, a large crowd of supporters cheered and began chanting Anderson's name.

"It's awesome, I can breathe," Anderson's mother, Linda Anderson, said after the hearing.

Anderson's father, Jay Anderson Sr., added, "We feel good. This is something that should have been done five years ago. This is justice, you guys, this is justice."

Now a Waukesha County, Wisconsin, deputy sheriff, Mensah left the Wauwatosa Police Department after fatally shooting 17-year-old Alvin Cole in 2020, an incident that sparked large protests in and around the Milwaukee area.

It was the third on-duty fatal shooting in five years that Mensah was involved in. His use of deadly force was justified by Milwaukee County District Attorney John Chisholm in each case, including the 2015 killing of 29-year-old Antonio Gonzales.

The Milwaukee County District Attorney's Office declined to comment on Yamahiro's ruling.

"What happened today is historic not just for the state of Wisconsin but for this country," said Kimberley Motley, an attorney for the Anderson family who requested the John Doe hearing.

Motley also represents the families of Gonzales and Cole.

Anderson's death unfolded just after 3 a.m. on June 23, 2016, when Mensah found him sleeping in a car in Madison Park.

“Approximately five and one-half minutes after Officer Mensah entered the park, Mr. Anderson was shot," Yamahiro said.

Mensah claimed he opened fire in self-defense when Anderson "lunged for a gun" that was in the passenger seat of the car he was in, according to evidence presented at the John Doe hearing Yamahiro held between Feb. 19 and May 19 of this year.

During Wednesday's hearing, Yamahiro said Mensah failed to activate his body-worn camera until after the shooting and did not turn on his squad car's emergency lights, which would have automatically switched on his vehicle's dashboard camera. Mensah's body-worn camera, however, activated automatically and recorded about 25 seconds of the incident without audio and captured the shooting.

"The court has also heard testimony that Officer Mensah failed to activate his emergency lights or recording equipment at the time Antonio Gonzales was shot in 2015," Yamahiro noted.

In an interview with Milwaukee Police Department investigators, the agency assigned to conduct an independent investigation of the shooting, Mensah claimed that when he approached the vehicle Anderson was in, he saw a handgun through the open passenger-side window lying on the passenger seat.

Mensah claimed that Anderson initially complied with orders to put his hands up, but during the encounter, he claimed Anderson appeared to reach for the gun with his right hand four different times before he lunged for the weapon, according to his statement to investigators.

During the John Doe hearing, two retired police homicide detectives testifying as expert witnesses claimed Mensah's story of how Anderson was shot conflicted with the physical evidence at the crime scene and the findings of an autopsy that showed Mensah was shot three times in the right side of his head and once in the right shoulder.

Ricky Burems, a retired Milwaukee Police Department detective who has investigated more than 1,000 homicides, testified that if Anderson had been lunging for the gun, he would have sustained wounds to the front of his body, the front of his head or his upper chest and even the top of his head. Burems also said there would have been blood on the passenger seat.

"All of the blood was on the driver's seat, the driver's floor, the roof of the driver's seat, the backrest, the pad or bottom where your legs and butt are and also the driver's headrest," Burems said, according to a transcript of his testimony that Yamahiro read in court Wednesday.

"So that tells me that when Mr. Anderson was shot, he was facing straight ahead. If Mr. Anderson had been lunging toward the passenger seat, that’s where his body would have been," Burems testified. "So there’s no way that he could be shot while extending or leaning or lunging toward the passenger seat and then afterward be upright in the driver's seat with his hands on his lap."

Yamahiro also said that before Milwaukee police investigators arrived at Madison Park, the crime scene was compromised by other Wauwatosa police officers who removed the gun from Anderson's car without first taking photos of the weapon and the position it was in when Anderson was shot.

“That is critical evidence that the Milwaukee Police Department didn’t get to, because Wauwatosa had already handled the gun and already moved it from the car, and already cleared it," Yamahiro said. “I don’t know if that means they unloaded it or if they looked and saw there were no bullets in it, to begin with."

Efforts by ABC News to reach Mensah on Wednesday were unsuccessful.

The Waukesha County Sheriff's Office, where Mensah now works, released a statement saying, "In light of Judge Glenn Yamahiro's decision regarding Joseph Mensah, Sheriff Eric Severson will be reviewing all of his options, and will have a more detailed statement and decision forthcoming."

Wauwatosa Police Chief James MacGillis, who has been on the job for just three days, read a statement during a brief news conference, saying, "The officers of the Wauwatosa Police Department continue their dedication to public safety for all citizens and understand that this is a time for community healing and trust-building."

MacGillis said he has contacted the Anderson family in private to express his condolences.

"Now is the time to process the judge's decision and then move forward," MacGillis said. "The legal process has played itself out, and it’s going to continue to play itself out. My role is to lead this department, look at processes, look at how we function as an organization."