Dane County District Attorney Ismael Ozanne may have to review evidence in the 2015 slaying of Tony Robinson by Madison Police officer Matt Kenny and decide again if his office would pursue prosecution of Kenny.
Judge Juan Colas is currently deliberating about how to move forward with a petition asking him to find probable cause to charge Kenny with Robinson’s murder. Robinson’s family, led by his grandmother Sharon Irwin-Henry, asked Colas to find probable cause for a criminal complaint for reckless homicide against Kenny for his controversial shooting of 19-year-old unarmed Robinson.
Irwin-Henry has petitioned the court through a seldom-used Wisconsin statute, 968.02(3), that says a private citizen can ask a judge to find probable cause and authorize a criminal complaint if the district attorney declined or was unable to do so.
On August 25, Colas conducted an ex parte hearing (meaning that neither Kenny nor his representatives were present) to discuss how proceedings could move forward. He explored hypotheticals with attorneys representing Robinson’s family about what a trial would look like if one was held using this statute.
“Right now, I’m just trying to get probable cause,” Irwin-Henry told The Cap Times outside the courtroom. “The same thing the district attorney does, they should be doing here. My ultimate goal is that anybody who comes up behind me doesn’t have it as hard.”
The Wisconsin statute relies on situations when a district attorney has declined or refused to issue charges in a particular case. Judge Colas wants to make sure that Ozanne is currently refusing to prosecute Kenny.
On March 6, 2015, Kenny responded to a call to check on Robinson, who had been exhibiting erratic behavior, jumping in and out of traffic and yelling things at people who were not there. Robinson’s friends called 911 because they were concerned about his well-being. As he approached the stairwell of a residence on Williamson Street, Kenny alleged he could hear the sounds of a disturbance. Less than a minute later, Kenny shot and killed Robinson in the stairwell, according to court documents.
Evidence was presented during a 2017 civil lawsuit against the Madison Police Department and the City of Madison that shows inconsistencies in Kenny’s story. Judge Colas is deliberating about whether or not Ozanne has refused to review that evidence, which would allow Colas to more cleanly determine that the court needs to take up the prosecution of Kenny.
“We’re trying to get guidance on what happens and what should happen if this moves forward,” Syovata Edari, one of the attorneys representing Irwin-Henry, said of the hearings so far. “The judge could also send it back to Ozanne saying he finds probable cause, prosecute this guy. It sounds like he (Colas) is going to want a showing of refusal after another review of the federal record.”
Edari is referring to evidence that was presented during a 2017 federal civil lawsuit Robinson’s family brought against Kenny, the Madison Police Department, and the City of Madison. Forensic evidence brought forth for those proceedings appeared to directly contradict Kenny’s version of events.
Edari and others believe that Ozanne never reviewed any of that evidence to begin with. Irwin-Henry said that following the 2017 lawsuit (in which Robinson’s family received a $3.3 million settlement) she has personally confronted Ozanne on multiple occasions asking him to review the evidence and charge Kenny.
“I don’t know that Ozanne went back and reviewed the civil lawsuit,” Edari said. “It’s not like he didn’t know it was happening or the evidence existed. This has been all over the news. He could have, at any time, gone and reviewed this. She’s been pleading with him to take another look and he hasn’t done anything.”
Some in the community believe that the word of police officers about what transpired during shootings and violent detentions of Black people has traditionally been given a lot of weight by juries as well as the media.
“If you do wrong, you do wrong,” Edari said. “It shouldn’t matter who you are. If our system is to mean anything, you can’t let this go unprosecuted.”
Ozanne did not respond to Cap Times attempts to ascertain if he would review evidence if asked, or what he would do if asked by Colas to either prosecute this case or not.