Steven Potter
In a March 6 news conference, Anand Swaminathan, an attorney representing Tony Robinson's family, points to a chart showing where bullets struck Robinson. Although the lawsuit has been settled, the lawyers made their research and arguments in the case public.
Attorneys for the family of Tony Robinson released new information today that they claim makes it “unambiguously, unequivocally clear” that Madison Police Officer Matt Kenny’s version of events the night he shot and killed Robinson two years ago cannot be true.
Anand Swaminathan, an attorney from the Chicago firm of Loevy & Loevy, says the “objective, forensic evidence...illustrates why the shooting did not and cannot have happened in the way that Officer Kenny claimed it did.”
The evidence was gathered during a recently settled civil lawsuit and was unveiled at an afternoon press conference on the second anniversary of Robinson’s death. It is being made available through a website and includes deposition testimony, documents, images, audio, video and reports from forensic scientists, says Swaminathan.
Early in the evening on March 6, 2015, Kenny was dispatched in response to calls that a young man was jumping in and out of traffic on Williamson Street and assaulting people. Kenny entered a nearby home looking for the young man. Moments later, he shot the unarmed, 19-year-old Robinson seven times. Kenny, who remains on the force, was cleared of wrongdoing by both Dane County District Attorney Ismael Ozanne and the Madison Police Department.
Swaminathan says they are releasing the information, which includes reports and emails between members of the police department and its internal investigators, “to give the public access to the information so they can reach their own conclusions” about the case.
The civil wrongful death lawsuit, brought on behalf of Robinson’s estate by his mother, Andrea Irwin, was settled two weeks ago for a record $3.35 million. The family’s attorneys say the documents include “individual pieces of evidence that make it abundantly clear that Officer Kenny’s story is not true. There is piece of evidence after piece of evidence that breaks down his story.”
Kenny told investigators that when he arrived at 1125 Williamson St., “he was faced with a rapidly evolving scenario,” and believed Robinson was assaulting someone in the upstairs unit. Kenny said he responded in an effort to help, but was confronted in the stairwell by Robinson, who he said punched him in the head and continued to repeatedly swing at him. Kenny said he feared that he would lose consciousness and be disarmed, so he shot Robinson in an effort to protect himself.
A representative from the Madison Professional Police Officers Association, as well as Mayor Paul Soglin and Kenny’s brother, condemned the lawsuit settlement, saying it was the city’s insurance agent, Wisconsin Municipal Mutual Insurance Company, that chose to settle the case.
Jim Palmer, executive director of the Wisconsin Professional Police Association, says he doesn’t know what information the attorneys plan on sharing. “We find it difficult to reconcile the Robinson family’s efforts to try their case in the court of public opinion, after they chose to settle the case and stay out of a court of law,” he says. “If they felt as confident about their claims as they suggest, we would have preferred they hadn’t agreed to a settlement. Which was a choice that Matt Kenny did not have. Matt Kenny would have preferred a trial and the opportunity to clear his name again.”
The Robinson family attorneys insist that forensic and video evidence prove that Kenny lied about what happened the night Robinson was killed. In particular, they say that synchronized audio and video from the incident show that Kenny couldn’t have been at the top of the stairs when he began firing.
“The audio and video show that Officer Kenny was at the base of the stairs — it doesn’t take a forensic scientist to see that. He couldn’t be at the top of the stairs for the first shot and then be coming out the [bottom] doorway by the second shot,” says Swaminathan. “That means that Officer Kenny’s story about being punched at the top of the stairs and responding with a shot is untrue.”
He adds: “The location of the bullet casings are all at the base of the stairs and outside, indicating the shots were fired at the base of the stairs. There is no high-impact blood spatter anywhere above the halfway point of the stairs — that’s strong evidence that there were no shots fired at the top of the stairs.”
The family attorneys also fault the police department’s internal investigation, saying it was aimed to clear Kenny. Most specifically, Kenny was never questioned.
“This is the main problem with the internal investigation: They asked zero questions. This isn’t a case where they asked some questions but didn’t ask other questions,” says Swaminathan. “They asked zero questions of an officer whose story at even first glance, was problematic. That’s a broken internal investigation process.”
In response, Madison Police Department spokesperson Joel Despain points to a blog post by Police Chief Mike Koval, which states, among other things, that Koval is “confident in both the process and outcome of internal review of the incident.” But the police chief adds in a statement to media that he cannot respond to specific charges raised by Robinson’s lawyers.
“We cannot comment on a one-sided version of facts that will never be subjected to the cross-examination afforded by a trial,” Koval says. “To suggest that you have ‘new’ evidence supplied by experts paid by the plaintiffs, should be considered in the context from which it is proffered.”
Meanwhile, state Rep. Chris Taylor (D-Madison) has introduced two bills that would change the way investigations are handled for officer-involved deaths and is drafting another aimed at reforming police use-of-force policies.
Taylor says the bills she’s already introduced “provide common-sense, but needed changes to the officer-involved death law” and that she was working on them before news of the Robinson settlement broke.
Her first bill would require that a judge appoint two outside prosecutors to review internal investigations into officer-involved deaths. These outside investigators would decide whether or not to criminally charge an officer, taking that decision away from local district attorneys.
Vesting this power in the DA is problematic, says Taylor. “District attorneys work very closely with local law enforcement, and they have to do that to do their job,” she says. “It’s really hard for [the DA] to make a decision to charge a police officer because it may damage their ability to do their job in the future.”
In an email to Isthmus, Police Chief Mike Koval says he doesn’t buy that claim. “To suggest that a district attorney is more worried about currying favor from cops than being a responsible officer of the court is making huge assumptions about the integrity of the process and our district attorney’s character.”
District Attorney Ismael Ozanne did not immediately respond to a request for comment.
Taylor’s second bill would “create a conflict-of-interest standard” to ensure that the two lead investigators don’t have a close relationship with the department they’re investigating, she says. Under this bill, those investigating an officer-involved death “can’t have worked for the department where the officer is employed in the last 10 years, and [the investigators] can’t have a close family member who worked for the department where the officer is employed in the last 10 years.”
Koval writes that this would not be a “radical departure” from what is already being done. “Our independent investigations have been conducted by the [state’s Division of Criminal Investigations], who operate under the Attorney General’s Office. I know that DCI works diligently to maintain its independence and to avoid any hint of impropriety.”
Taylor is also drafting a bill to establish new guidelines directing police use of force; it would establish that police, when subduing people, are to “preserve life.” It would also require the minimal amount of force always be used and lethal force allowed only as a last resort. The bill, says Taylor, would also provide guidance for officer training in de-escalation techniques and require “law enforcement to intervene when they witness a colleague using excessive force.”
Koval says many of these recommendations are already in place. “[Our] standards of training already incorporate many of the things that Taylor infers are absent,” he says. “Police are always researching ‘best practices,’ and constructive reforms are always appropriate.”
He adds: “Continued emphasis placed on de-escalation, professional communication and crisis intervention techniques are a prominent part of both pre-service as well as continuing education for police officers in our department, and have been for years.”
A march and vigil remembering Robinson is planned for 5:30 p.m. today at East High School, 2222 E. Washington Ave.
