Soon all eyes will be on Ismael Ozanne.
The Dane County district attorney is tasked with sorting through the investigation conducted by the state Department of Justice into the March 6 officer shooting death of Tony Robinson, an unarmed 19-year-old biracial man. Ozanne will be the one to ultimately decide whether to charge Madison Police Officer Matt Kenny with any crime related to the incident.
The shooting, which took place at the apartment of a friend of Robinson’s on Williamson Street, has launched angry protests across the city, with members of the Young, Gifted and Black Coalition calling for Kenny, who is white, to be criminally charged and dismissed from the police department. Frustrated protesters have compared the incident to shootings in Ferguson, Mo., and elsewhere, where young unarmed, young black men have been shot in altercations with police.
Attorney Hal Harlowe, who served as Dane County district attorney from 1983 to 1989, says this context almost certainly weighs on Ozanne. The state’s first black district attorney, Ozanne has campaigned on reducing racial disparities in the criminal justice system. “There is enormous pressure from the community to demonstrate decisiveness by issuing a charge,” says Harlowe.
Traditionally, says Harlowe, district attorneys have been under a different kind of pressure. “When a district attorney, particularly amid a flurry of public concern, is asked to determine whether a police officer acted improperly, it is extremely tempting to demonstrate your decisiveness by quickly announcing that you’ve reviewed all the investigative reports and have determined there was no wrongdoing on the part of the police.”
Harlowe says the rush to conclude these probes is done to “restore confidence” in law enforcement. “There is a strong inclination to do that.”
Attorney Brian Brophy, who served as Dane County district attorney between 1997 and 2000, says he doesn’t think political pressure will have much influence on Ozanne’s decision. “The reason I say that is that this is a situation in which politically, the DA can’t win,” says Brophy. “He’s got pressure from more than one side of the community.”
There have been public displays of support for Kenny and the police department in general, and media reports portraying the officer as a compassionate, dedicated and decorated officer, says Brophy. But there is also “pressure from a long disenfranchised community that has got plenty of tinder from the recent shootings of unarmed black men nationally.”
Whatever Ozanne ultimately decides, Brophy says, “He can expect that somebody is going to criticize his decision.”
Anne Schwartz, spokeswoman for the Department of Justice, says she expects the Division of Criminal Investigation report to be forwarded to Ozanne this week.
A 2014 state law now requires that investigations into officer-involved shootings be led by an outside agency rather than the police department itself. Harlowe says the independent probe should “increase the faith that people have in the report itself.”
“It’s essential that police-involved shootings be removed from their parent agencies,” he says. “That was rife with conflict.”
On March 12, Attorney General Brad Schimel announced the investigation already included more than 100 investigative reports and 60 witness interviews, as well as interviews with “40 separate households as a part of the neighborhood canvass.”
Ozanne, nevertheless, could ask for more evidence to be gathered once he reviews the reports, says Harlowe. Ozanne did not return a call seeking comment.
Harlowe says Ozanne’s office would approach this case like any other.
“The general standard for a DA in making a charging decision is to first determine if there is probable cause for the issuance of a complaint,” says Harlowe. “People think probable cause means it’s likely that a crime was committed. But the standard requires only that it be possible.”
Beyond that, the DA needs to be comfortable that, if the matter were to go to trial, there is “sufficient admissible evidence that could result in a finding of guilt beyond a reasonable doubt.”
In determining whether to charge, the district attorney would need to consider the state’s homicide statutes, the department’s policies on use of force and whether Kenny violated any written protocols, says Harlowe.
A central question will be whether the officer thought he was facing a threat of great bodily harm or death. “As the DA evaluates the case, he will take into account the likelihood of the defense being not only raised, but of it being successful [at trial].”
When Ozanne announced he would not be issuing charges against the police officer involved in the 2012 deadly shooting of Paul Heenan, who was also unarmed, he noted in a statement that, “Under Wisconsin law, which applies equally to members of law enforcement and to those who are not, any person may use deadly force to respond to a genuine fear of deadly force to that person or any other person. In this case, the officer believed he was going to be disarmed by a suspect from a potential burglary.”
Harlowe says some community members might want to see Ozanne issue charges even if the likelihood of prevailing at a jury trial is slim. That, says the former prosecutor, would be an abdication of duty. “An important part of a prosecutor’s job is to exercise discretion.”
Another factor likely to be considered by the district attorney is whether Kenny believed he was on a rescue mission when he was called to the Williamson Street residence of Robinson’s friend, says Harlowe.
“Did the officer believe he was entering that residence to intervene in an attack?” Harlowe says. “If the officer reasonably believed he was entering to prevent someone from being injured — not Tony but a victim of an attack — then that certainly explains and excuses him having walked in. It actually authorizes his entering under exigent circumstances.”
Robinson’s friend had reportedly called police to say Robinson was acting erratically and running in traffic. Other 911 calls said that Robinson had tried to batter someone outside of a Williamson Street restaurant. According to the police, once back at the friend’s house, Robinson punched Kenny in the head and knocked him down before Kenny shot him.
Turin Carter, Robinson’s uncle, later confirmed to Isthmus that Robinson had taken hallucinogenic mushrooms that day and was having a bad reaction.
Assuming the officer indicates he was being attacked with considerable force and acted to save his life, says Harlowe, Robinson’s reported use of hallucinogens — and adverse reaction — would “give any prosecutor great pause to issue charges.”
On the other hand, says Harlowe, if “the prosecutor believes that the officer had other options and chose to use deadly force, not out of fear of his imminent death or injury, but because he was frustrated or angry, then it would be appropriate to put that before a jury. “
Brophy says it will all boil down to the “reasonableness of the officer’s actions given his situation and his training.”
“Did the officer believe he was in imminent danger of death or bodily harm? Did he act to stop someone from the commission of a felony? Was the force he used reasonable?”
Harlowe says there is no question that whites and blacks, in general, experience contact with law enforcement differently. “If you are African American and have an encounter with police, you are more likely to be arrested and more likely to be charged, and once charged, you are more likely to end up with a record and a record for a more severe offense than if you are not African American.” He says he understands why young black men might be fearful when approached by police and hopes Robinson’s tragic death results in an examination of how African American young men are treated in Dane County by the police, by the district attorney’s office and by the court system.
But Harlowe says the district attorney’s charging decision must only be driven by the facts in the case.
“If the district attorney concludes that Officer Kenny acted recklessly or with malicious intent, then I certainly want to see him prosecuted,” says Harlowe. “But if that’s not the case, then it would be a travesty for him to be prosecuted as a political casualty of Ferguson.”