Judge denies Tosa chief’s attempt not to testify in Jay Anderson hearing

The second hearing in the John Doe case involving the shooting of 25-year-old Jay Anderson Jr. raised more questions about the 2016 incident. Early in the hours-long hearing, Judge Glenn Yamahiro denied a motion to quash a subpoena calling Chief Barry Weber to offer witness testimony. Weber’s motion to quash relied heavily on the argument that the Wauwatosa Police Department (WPD) was not involved in the shooting investigation.

During the hearing Judge Yamahiro highlighted several reports written by various WPD officers related to the investigation. Some of them describe WPD detectives making contact with potential witnesses near where the shooting happened days after Anderson was killed. Other reports were made by other WPD officers, who recovered surveillance footage from a nearby school which captured the shooting.

“It does raise issues,” said Yamahiro, “And I believe some of the testimony in the last date was that some of these interviews took place days after the shooting. So that is inconsistent with my understanding of what it means to turn over an investigation. I don’t know if there was anything done that shouldn’t have been done. But the issue, right now, is whether or not there’s a basis for the chief to testify.”

After denying Weber’s motion to quash the subpoena, Yahahiro set a date for May 4 for the chief to testify. Besides addressing the subpoena against Weber, in the hearing several more witnesses were called to the stand. Among them was former MPD sergeant and current member of Assembly Speaker Robin Vos’ task force on racial justice Pamela Holmes, retired Washington D.C. homicide detective James Trainum as well as Anderson’s father Jay Sr. and fiance Starkeshia Delarosa.

Anderson was sleeping in his car at 3 a.m. in a local park when former WPD officer Joseph Mensah arrived for a routine check. Mensah parked in front of Anderson’s car and activated his squad’s bright take-down lights to illuminate the vehicle. These lights are different from the red and blue emergency lights, which would have automatically activated Mensah’s dash camera if they were turned on.

In a statement to MPD investigators, Mensah said it took a couple of attempts to wake the sleeping man. Anderson’s family assert that he was sleeping off intoxication after having gone out with a close friend. Once Anderson was awake, Mensah stated, he asked Anderson for identification, which he claimed Anderson denied having. During the interaction, Mensah stated, he noticed a pistol with an extended magazine sitting beside Anderson on the front passenger seat. At that point, Mensah raised his own weapon and claimed he ordered Anderson not to reach for the gun.

That is where the only video which depicts the shooting begins. Mensah stated he attempted to turn on his cameras without success. Anderson’s hands lowered a few times during the interaction, the last time just before he was shot. Mensah claimed Anderson lunged for the weapon, though Trainum testified that Anderson’s wounds and blood spatter don’t indicate any lunging.

Attorney Kimberley Motley brought up several problems with the way Mensah handled the shooting which appear inconsistent with training and policy. First, he parked in front of Anderson’s car rather than behind, which is contrary to how law enforcement officers are trained to position themselves during traffic stops. Second, he failed to activate his emergency lights and therefore did not activate the dash camera.

Problems with the way the scene was handled afterward include other WPD officers removing the gun from Anderson’s car without taking any pictures for evidence. A normal sized, non-extended magazine was also recovered from the back seat. Milwaukee police detectives from the Milwaukee Area Investigative Team (MAIT) had also not yet arrived at the scene, nor had firefighter and medical personnel. An I.D. for Anderson was also recovered by other WPD officers who searched Anderson’s body on the scene.

Both Jay. Sr. and Delerosa testified that they were  questioned by MPD investigators about whether Anderson sold drugs and why he had money with him. Anderson worked three jobs, including at Ruby Tuesdays as a cook and did yard work and snow removal with his father. Jay Sr. stated that investigators never asked him if his son was employed, and didn’t ask about his gun.

Motley argues that the Anderson shooting is a case of officer-created jeopardy on the part of Mensah. In other words, his choices and actions contributed to the outcome of the encounter. Part of the purpose of the John Doe hearing is to determine whether probable cause exists to file felony charges against the officer. These could include second-degree reckless homicide and homicide by negligence with a dangerous weapon.

“I can’t say he is criminal, but I can say he is reckless,” Holmes testified. “If this is the way he worked this night, just imagine how many other times he’s been in violation on other calls? It could have all been avoided.” When examining how he approached the car, the fact that he didn’t wait for backup and other factors, Holmes feels Mensah “didn’t take advantage of all that training that we’re taught.”

She also noted parking in front of the car near the park’s only entrance would have created a more dangerous situation for his back-up if a shoot-out actually occurred. The questions surrounding the death of Jay Anderson Jr. have exposed the tensions within suburban Wisconsin.

Motley asked Holmes on the stand why various aspects of the incident weren’t more seriously examined. “When’s the last time you’ve heard about the Wauwatosa Police Department doing anything besides the Black face stuff from years ago?” Holmes noted. “So that they don’t suffer any kind of liability, or have to pay out for this officer’s wrong-doing.” She added, “Sometimes things go wrong. Admit it, and move on. Don’t cover it up.”