Dylan Brogan
Seven years after Matt Kenny fatally shot 19-year-old Tony Robinson, calls have accelerated for Kenny to face criminal charges.
It’s been seven years since Madison Police Officer Matt Kenny fatally shot 19-year-old Tony Robinson in the stairwell of a Williamson Street apartment. Since then, Sharon Irwin-Henry, Robinson’s grandmother, has tirelessly campaigned for Kenny to face criminal charges for the officer’s use of deadly force in the controversial shooting.
“I’m not asking anyone to take my word for it. We have the evidence and the case against Kenny is strong. All I want is the facts to be presented to a jury in accordance with the law,” Irwin-Henry tells Isthmus. “The truth will do the rest.”
Kenny is still on the Madison police force and has never faced criminal charges stemming from the “check person” call that turned deadly on March 6, 2015. But that could change due to a rarely used provision in state law that allows citizens to ask a judge to issue criminal charges. In March 2022, Irwin-Henry filed a petition in Dane County Circuit Court to authorize homicide charges against Kenny. Syovata Edari is one of seven criminal defense attorneys working to help Irwin-Henry navigate what are somewhat uncharted legal waters in Dane County.
“There are a lot of procedural questions we are grappling with now because this statute has not been invoked very often in Wisconsin. We hope this case can help establish procedure in Dane County for exactly how this process works because it’s potentially a powerful tool for victims in this community,” says Edari. “ The first step is for the judge to review the evidence and determine whether probable cause exists that Officer Matt Kenny committed a crime, in this case homicide.”
The decades-old state statute that allows citizens to petition for criminal charges can only be invoked “if a district attorney refuses or is unavailable to issue a complaint.” Dane County District Attorney Ismael Ozanne declined to issue charges against Kenny two months after Robinson’s death. Ozanne did not respond to Isthmus’ request for comment. But during a May 2015 press conference Ozanne concluded that Robinson’s “tragic and unfortunate death was the result of a lawful use of deadly police force, and that no charges should be brought against Officer Kenny.”
Robinson’s mother, Andrea Irwin, was successful in a federal civil rights lawsuit filed against Kenny and the city of Madison in 2015. The lawsuit was settled in 2017 for $3.35 million — which was the highest amount ever awarded in Wisconsin in a civil case over an officer-involved shooting. Irwin-Henry’s petition relies on the expert testimony and other evidence in the civil trial to argue there is probable cause to charge Kenny criminally.
“Not only do we have the initial state law investigation and decision, there is a voluminous record and judicial rulings from the subsequent federal case which at the very least cast substantial doubt on Ozanne’s finding that the shooting was justified,” states the petition. “If the person who shot Robinson had been a civilian rather than a police officer, there is no question that probable cause would be found to support a charge of reckless homicide, or more likely, first-degree intentional homicide, even if the defendant claimed self-defense.”
After the federal trial, Irwin-Henry hoped Ozanne might reconsider charges against Kenny.
“I met with Ozanne five times and asked him to look at the new evidence. He refused. The police, the DA’s office, they just want us to forget about this and I won’t let them,” says Irwin-Henry. “It’s been a struggle but my grandchild did not deserve to die. No one is above the law whether you wear a uniform or not.”
Sharon Irwin-Henry, Tony Robinson’s grandmother: ‘My grandchild did not deserve to die.’
The death of Robinson in 2015 sparked protests against the Madison Police Department that continue to this day. After the police killing of George Floyd in 2020, nightly protests for police accountability in downtown went on for weeks and “fire Matt Kenny” was frequently chanted in the streets. Graffiti can still regularly be spotted around Madison with the phrase, “ARREST MATT KENNY.”
“We are demanding community control of the police,” activist Ayomi Obuseh told Isthmus at the height of the 2020 summer protests. “The city not firing Matt Kenny is just one traumatizing example of why we are fighting so hard for change.”
In December 2021 Madison’s new police chief, Shon Barnes, met with Kenny to discuss the possibility of the officer retiring early — Kenny declined to do so.
The new efforts to criminally charge Kenny are expected to take months, if not years. Irwin-Henry’s petition was filed in March but Edari says it could be awhile before a judge rules on whether there is probable cause to issue a criminal complaint against Kenny.
“When a court finds probable cause that a crime has been committed, that’s not a very high bar,” says Edari. “We don’t believe a higher standard should be required here.”
In Robinson’s federal trial, Kenny sought to have the case dismissed on summary judgment. But U.S. Federal Judge James Peterson refused to do so.
“The court concludes that the parties’ expert evidence is admissible. And, based on this evidence, what happened in the stairwell on March 6, 2015, is sharply and genuinely disputed,” Peterson wrote in his decision denying Kenny’s motion for summary judgment. “Kenny’s version [of events] is far from unimpeachable.”
Court documents show discrepancies in what Kenny told law enforcement immediately after the shooting and the testimony he gave three days later after being allowed to walk through the scene and review video and audio recordings of the incident. Expert witnesses at the federal trial also disputed whether Robinson actually attacked Kenny before the officer used deadly force and where Kenny was located when he fired seven shots at Robinson in the stairwell. What isn’t in dispute is that the teenager was intoxicated during the incident and was acting erratically.
“When the case reached federal court, the factual landscape changed dramatically from the initial DCI/MPD investigations and charging decisions,” states Irwin-Henry’s petition. “Outside experts in police practices said that Kenny’s actions were unreasonable from the moment he entered the stairwell at 1125 Williamson St. without backup and his actions continued to be unreasonable all the way through the firing of the last shot.”
Isthmus requested comment from Kenny through the Wisconsin Professional Police Association, which declined to provide a response.
Edari has two decades of experience in criminal defense work but in recent years she’s been focused on her business, CocoVaa Chocolatier.
“I came out of retirement to work on this case to get the petition filed. Others agreed to assist for the ultimate hearing. None of them hesitated. This is the sort of cause we went to law school to fight. It’s a case that strikes at the heart of a pattern in this country where police are historically and routinely not held accountable for killing citizens — young black men in particular,” says Edari. “Sharon Irwin-Henry has been vilified publicly, dismissed by people in power. I could see that just the filing of the petition gave her some peace of mind. And I’m proud to stand with her as she seeks justice for her grandson.”
Former Dane County District Attorney Hal Harlowe thinks the legal avenue Irwin-Henry is pursuing is pretty straightforward but procedurally unusual in that the required hearing prohibits cross-examination of witnesses by the district attorney or the prospective defendant (the judge can ask questions). But he agrees with Edari that petitioning a judge to file a criminal complaint “is seldom used.”
“That’s been true in my experience and I suspect that’s the case more broadly,” Harlowe tells Isthmus. “I do think it’s sensible to have a check on a DA’s exercise of discretion, which is extensive. But this is seldom used because ultimately you end up with the court going through the same analysis and applying the same standards as the district attorney would.”
Harlowe says a judge isn’t required to defer to the DA’s judgment.
“But most judges are unlikely to second guess that decision if the DA fairly considered the case and declined to pursue it because of legal or factual problems. But there is certainly room for a difference of opinion,” says Harlowe. “That’s why this statute exists. It is primarily designed to give an avenue of relief in cases where a district attorney has clearly abused their discretion.”
A petition to file criminal charges was somewhat successful in a 2016 officer-involved shooting in Wauwatosa. Milwaukee County District Attorney John Chisholm declined to issue charges against Wauwatosa police officer Joseph Mensah, who fatally shot Jay Anderson Jr. while he sat in a parked car.
In July 2021, Milwaukee County Judge Glenn Yamahiro disagreed with Chisholm and found probable cause to charge Mensah with negligent handling of a dangerous weapon. A special prosecutor was appointed and given the final authority on what charges to file against Mensah. After a lengthy investigation, the special prosecutor appointed by Yamahiro decided there was not enough evidence to bring any criminal charges — effectively agreeing with Chisholm’s original decision.
A hearing in the Kenny case is expected to be held in the fall before Circuit Court Judge Juan Colás.
Editor’s note: This article has been updated because it initially, in error, stated Sharon Irwin-Henry’s attorneys were working pro bono. A photo caption was also updated to correct Tony Robinson’s age.
