The Cole family and their attorney’s talk to press outside the federal courthouse. (Photo by Isiah Holmes/Wisconsin Examiner)
For the second time, a federal trial in the 2020 shooting death of Alvin Cole by then-Wauwatosa police officer Joseph Mensah ended in a hung jury on Thursday. Deliberations began shortly after 5 p.m. on Wednesday, going until around 8 p.m. Jurors returned Thursday morning, and deliberated for a total of nearly 10 hours, more than doubling the amount of time deliberations lasted during the first trial, before deciding that they were hopelessly deadlocked. Plaintiff attorneys asked the jury for a total of $9 million ($5 million in compensatory damages, and $4 million in punitive damages), a figure far lower than the $22 million they asked for last time.
Following the trial, Mensah attorney Joseph Wirth said “it’s still proven a difficult case for the jury to reach a conclusion.” Wirth and his partner, attorney Jasmyne Baynard, declined to talk about settlement discussions with the media, but said they plan to talk to the jurors. “We have felt strongly about the merits of this case,” said Baynard. “I’ve felt strongly about my representation of Joseph Mensah and every other police officer that I represent. Feel strongly about his actions in this situation, and we’re going to go forward under that belief.”
Cole family attorneys Kimberly Motley and Nate Cade said that while they wanted a different outcome, “We are pleased that it was a hung jury.” Motley stressed that “it’s important for the public to be aware that Joseph Mensah killed three people in five years as a Wauwatosa police officer, that’s really important, and that this jury did not believe what he was saying. Now we have a jury that came back — and they were hung — but they deliberated longer, they had more evidence, and the evidence is just not good for him.” Motley said that Mensah’s story “doesn’t make sense.”
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During deliberations, jurors asked for transcripts of interviews of officers on the scene of the Cole shooting conducted by the Milwaukee Area Investigative Team (MAIT), a request initially denied by Judge Adelman, due to questions about whether the interviews had been admitted as evidence. Later, Adelman reversed his decision and allowed the jury to see MAIT interviews of officers David Shamsi and Evan Olson. The two officers gave contradicting statements to MAIT investigators in 2020 about whether Cole moved or pointed his gun shortly before Mensah fired. Jurors also asked for Mensah’s deposition testimony, in which plaintiff attorneys say Mensah implied that when he fired on Cole, he was only concerned about his own safety. On the stand this week, Mensah said that he fired to protect himself and everyone else around Mayfair Mall.
Throughout the trial, defense attorneys argued that the unrecorded officer interviews by MAIT were little more than hearsay, and attempted to limit the jury’s access to them. Besides arguing that MAIT reports are hearsay in the second trial, defense attorneys noted in the first trial that officers are not under oath when they talk to investigators after a police shooting. The debates in court raised questions about the policies and practices that MAIT relies on when investigating officer-involved deaths, which also inform whether prosecutors will charge officers with crimes after killing civilians.
Baynard said that “I don’t think that we’re in a position to comment on MAIT’s investigation, and truly that was not really an issue in this case to be decided, so no, I don’t have any issues.” Baynard added that, “I have seen plenty of MAIT investigations, I have seen plenty of investigations done by the [state Division of Criminal Investigation], I think they did a fine investigation here. I think that sometimes people forget that officers in these situations are afforded the exact same rights as anybody else would be afforded, and beyond that I’m not really interested in commenting on MAIT’s protocol.”
Cade stressed that the MAIT statements “are not heresy, ’cause they’re the statements.” Calling the heresy argument “nonsense”, Cade said that the problem with MAIT “is that they allow the officers to make decisions about it being recorded.” While Cade accepts that Mensah himself may have Fifth Amendment rights in such a case he said “the other officers don’t”. By contrast, civilian witnesses are recorded far more often than officers after police shootings. “Why do they bend over backwards for officers who are not even directly involved in terms of shooting,” asked Cade. “That’s a handicap. They said that MAIT was supposed to be designed to give the public confidence. How can you have confidence if you’re not going to tape officer’s conversations, so we know exactly what they said?”
Wirth said that Mensah “is absolutely disappointed that we weren’t able to obtain a verdict today,” adding that Mensah is no longer in law enforcement, “and it weighs heavily on him.” Wirth said “it’s a very important case to the Cole family, it’s a very important case to Joseph Mensah.”
The last day of testimony
On Wednesday defense attorneys called Joshua Boye, a video editor and graphic designer who reviewed squad car video from the Cole shooting. Boye testified that he had been paid by defense attorneys to edit the video as they directed by modifying audio, adjusting color and contrast, and adding a “spotlight” around Cole as he ran.
During cross examination, plaintiff attorneys drew attention to a timestamp in Boye’s video which does not appear in the raw version, leading plaintiff attorneys to question whether Boye had been given an altered version by defense attorneys. Later on, when this issue was raised again, Judge Adelman said that he hadn’t seen anything to suggest that the video had been tampered with. Boye repeatedly said that any edits he made to the video were done “at the direction of attorneys.”
Wauwatosa officer Evan Olson, who was one of the officers who responded to Mayfair Mall the night that Cole was killed, testified as uniformed Wauwatosa officers flowed into the courtroom to sit around Mensah’s wife, as they had during each day of the trial. A Wauwatosa PD spokesperson said in a statement to Wisconsin Examiner that “some officers chose to attend the trial in uniform to show their support for a former colleague, which is not uncommon in high-profile cases. Their attendance was voluntary and did not impact patrol staffing or the department’s ability to respond to calls of service.”
Attorney’s Jasmyne Baynard (left) and Joseph Wirth talk to press outside the federal courthouse (Photo by Isiah Holmes/Wisconsin Examiner)
Cole’s family, as well as the parents of Jay Anderson Jr., Mensah’s second fatal shooting in 2016, also attended every day of the trial. Motley and Cade took issue with the presence of uniformed Wauwatosa officers. “This isn’t the city of Wauwatosa,” said Motley, “so I was kind of concerned about what was happening in the city of Wauwatosa with all these police officers that came in uniform to sit in court for hours and hours, for a person who no longer works for Wauwatosa as a police officer, and is no longer a Wauwatosa officer period. So I think that the taxpayers should demand why that happened.”
Cade called the uniformed officers’ presence intimidating for the jury. “We aren’t allowed to say anything about the thin blue line and backing the blue, but it was obvious,” he said. During the first trial plaintiff attorneys were told that the Cole family was not allowed to wear any clothing with messages about Alvin.
Olson testified that he arrived at Mayfair Mall responding to a report about disorderly conduct involving a gun. After arriving, Olson immediately encountered at least two teens who were part of Cole’s group, and ordered them to the ground. Off in the distance, he could see Cole running from officers and mall security, before hearing a single shot. Olson testified to seeing Cole “in what I would say is a low ready position,” similar to a stance taken in football. He said that Cole pointed a firearm at him, making him move out of the way of what he thought would be more gunfire, and prepare to shoot himself. Olson called Cole a “lethal threat”, and said that after Mensah fired, Cole went from the football-like position to lying prone on the ground. Plaintiff attorneys argued that Olson was seeing Cole in the act of falling. Olson kicked the gun from Cole’s hand and assisted in CPR.
Olson, Mensah and Shamsi gave contradicting statements, opening the door for the trial. Both Olson and Mensah said that the gun was pointed in their directions, but they were positioned on opposite sides of the parking lot. Shamsi, who was the closest officer to Cole, testified that Cole and the gun didn’t move after Cole fell. Olson said he didn’t think other officers who didn’t see the gun move were lying. Every officer testified that foot pursuits are dangerous, unpredictable situations especially when guns are involved.
When Olson left the stand, he took a seat in the gallery near Mensah’s wife and the other Wauwatosa officers. Olson, like the rest of the officers, was uniformed every day of the trial. On Thursday, when the jury continued deliberations, Olson and a Wauwatosa police sergeant came to court in civilian clothes.
Sarah Hopkins, a civilian witness, claimed to have been outside the Cheesecake Factory restaurant when she saw Cole being chased by mall security. Hopkins said that Cole stopped running at one point, making her think that he was surrendering, but then that he turned and pointed a gun at the officers. Hopkins said that Cole “was like fumbling around” and that “all of a sudden we hear rapid shots.” Plaintiff attorneys questioned the fact that Hopkins described Cole doing a motion which no one else described seeing. Davion Beard, a former Mayfair Mall security guard, initially helped to locate the group of teens, and participated in the foot chase. Beard, who ran track, testified to essentially being the closest person to Cole with just a foot or two separating them. When the first shot was fired, Beard said he dropped to the ground, with Shamsi not far behind him, and that he didn’t see Cole crawl, turn his body, or point a gun.
The Cole family and attorneys talk to press outside the federal courthouse. (Photo by Isiah Holmes/Wisconsin Examiner)
Testimony concluded with Mensah’s attorneys calling Michael Knetzger, a certified instructor in Defense and Arrest Tactics (DAAT) and former Green Bay police officer. Knetzger repeatedly implied that the jurors should put themselves in Mensah’s mindset at the moment of the shooting. When cross examined, plaintiff attorneys drew attention to Knetzger’s lack of “real world experience” dealing with shootings and homicides, and that his doctorate and degrees had come from online universities including one that marketed itself as the nation’s “most affordable online Christian University.”
During closing arguments Cade reminded the jury that Cole was a kid who made stupid decisions like many young people, including his own sons who Cade called “knuckleheads.” Cade stressed that “for Joseph Mensah to be right, everybody else has to be wrong,” referring to the testimony from multiple officers, Beard, and other witnesses that Cole had not turned toward Mensah or moved after he fell to the ground. Cade said that Olson testified to support his friend Mensah, and that Mensah himself had incentive to change his story.
Attorney Baynard, representing the defense, said that Cole made “catastrophically dangerous” decisions which went beyond the sort of mistakes people make when they’re young. Baynard said that “police are not required to gamble with their lives”, and that while Cole’s death was tragic, “we are in court today because of his actions.” Baynard said that “Cole was in control of the situation” and that “he was driving the bus”, saying in her closing argument that “I’m not sure how many more opportunities he should have been given to comply.” Baynard described the turning motion Cole allegedly made as “a quick shift,” and made claims about prior witness testimony which Cade later refuted.
The Cole family said they are undeterred by Thursday’s hung jury. “We’re a strong united family,” said Tracy Cole, Alvin’s mother. Despite the hung jury, Cole said that she is encouraged because “somebody sees that my son was killed for no reason,” and that she believed her son was killed as he attempted to surrender.
“We are going to fight you Joseph, we ain’t gave up Joseph,” she added. “And my lawyers ain’t gave up.”
Motley echoed the sentiment. “It’s a good result,” she said of the hung jury, “and we’re going to keep fighting…because this is an important case.”
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