Attorneys Nate Cade (far left) and Kimberley Motley (center) stand with the mother of Alvin Cole, Tracy (far right), and other members of Cole's family. (Photo by Isiah Holmes/Wisconsin Examiner)

A civil trial in Milwaukee’s federal courthouse over the fatal shooting of 17-year-old Alvin Cole by former Wauwatosa police officer Joseph Mensah ended in a hung jury on Thursday. After four days of hearing testimony and evidence, the eight-member jury was unable to come to a unanimous decision about whether Mensah used excessive and unreasonable force when he shot Cole on Feb. 2, 2020. 

A new trial has been set for September of this year, with pretrial preparations expected in August. The day began with closing arguments from attorney Nate Cade, who told the mostly white jury of seven women and one man to “remember who’s involved.” Cade showed a picture of Cole to the jury, saying, “He’s a kid, just a kid.”

Cade recounted the four days of testimony, starting with Cole’s father, Albert, who said he will be haunted by the memory of dropping off his son, the last time he saw him, “for the rest of his life.” Cade pointed to conflicting testimony about the shooting among the police officers who were there, and emphasized the testimony of David Shamsi, a combat veteran and FBI agent, who said Cole did not move or point a gun at Mensah before he fired.  

Another officer, Jeffrey Johnson, also testified that he did not see a weapon pointed at Mensah at the time of the shooting, and that Cole was on his hands and knees. Cade said that if Mensah had “paused a moment, Alvin Cole would still be alive.”

Plaintiffs’ attorneys also reminded the jury that after the shooting, Evan Olson, Mensah’s friend on the force, went off with Mensah in a squad car where they had an unrecorded conversation, in violation of polices stating officers should be kept separate after a shooting to avoid statement contamination. 

Cade stressed to the jury that in order for Mensah to be right, “everybody else has to be wrong,” and that Mensah had never apologized on the stand for the shooting.

Attorney Joseph Wirth, representing Mensah, said that night consisted of split second decisions. “Alvin Cole made catastrophically bad decisions,” said Wirth, arguing that Cole brought a gun to the mall, got into a fight, fled from and fired upon police, and then tried to fire again before Mensah killed him. “You can’t bring 20-20 hindsight,” said Wirth, urging the jurors to put themselves in Mensah’s shoes that night. Wirth refuted plaintiffs’ attorneys who said Mensah was bored in his own sector, and wanted some action. Wirth stressed that when an officer perceives danger, he has a duty to act and “it is not necessary [to prove] if this danger actually existed.” 

Wirth argued that Shamsi, who said the gun didn’t move at all, was still prepared to shoot Cole, and that the teen never stopped running, or indicated he wanted to surrender. 

Wirth also said that Cole pointed a gun both at Mensah and Olson, suggesting that the two officers are not contradicting each other. Plaintiffs’ attorneys asked for $22 million in damages, which Wirth called outrageous. 

The jury went into deliberations shortly after noon, and returned around 4:30 p.m. saying they were  unable to come to a decision. They were told by the judge to go back into deliberations until 5 p.m. When they were called back, they had still been unable to reach a unanimous decision. Judge Lynn Adelman said one main issue was the quality of squad car videos. The jury was excused, and a new trial was set for Sept. 8, at 9 a.m.

The day ends with armed marshals, and words from the family 

At the end of the day as the jury returned, at least five U.S. marshals, several of them armed, entered the court room. The arrival of the armed marshals caused a stir  in the courtroom from the gallery to the plaintiffs’ bench and attracted the attention of  Judge Adelman himself. “I don’t want marshals here,” Adelman said. It’s unclear why the marshals were there, but attorney Cade told media and the judge that it was inappropriate, and could send the wrong message to a jury. “People get screened coming into this courthouse,” said Cade. “The family has not shown out…They have not done anything dangerous, they have not made any threats.” 

Tracy Cole, Alvin’s mother, said she was satisfied with the presentation of her family’s case. “I can’t complain,” she said, “they showed the evidence, everything on the table. We ain’t gave up, we’re not going to give up.” Undiscouraged by the hung jury she said, “it just make us fight more.” Cole did say that she was hurt when she wasn’t allowed to testify during the trial. “I thought that if I would’ve spoke on it, I thought it will let some of the relief off of me, but now it haven’t because I still have that pain inside,” said Cole. “It hurts, but I’m dealing with it.”

Detective Joseph Mensah (right) testifies before the Senate Committee on Judiciary and Public Safety earlier this year. (Photo by Isiah Holmes/Wisconsin Examiner)

The third day of the federal civil trial into the death of 17-year-old Alvin Cole featured testimony from Joseph Mensah, the officer who fatally shot Cole in 2020. Now a detective for the Waukesha County Sheriff’s Department, Mensah was an  officer in the  Wauwatosa Police Department for five years, during which time he  killed Cole after a foot pursuit. 

Mensah testified about the shooting on Feb  2, 2020, at the Mayfair Mall, where he responded to a call about a disturbance involving a gun. Mensah visited the mall twice, leaving the area he was assigned to patrol to investigate the disturbance and then returning a second time when he heard on his radio that there was a foot chase underway. He arrived both times in an unmarked squad car and did not announce his presence on the police radio, something his colleagues described as a best practice but which he testified was unnecessary.

Mensah disagreed with the testimony of Wauwatosa officer David Shamsi, who testified that he was closest to Cole when he was shot, and that Cole was on the ground and had not moved when Mensah fired. Mensah said Shamsi was mistaken. The contradictory statements between Shamsi, Mensah (who claimed Cole turned to aim a gun at Mensah, either over or under his own shoulder) and other officers on scene including Evan Olson (who said Cole pointed the gun in a completely different direction from Mensah) created the issue that opened the door to this week’s jury trial in Milwaukee’s federal courthouse.

While Shamsi holds the rank of major in the U.S. military and is now an FBI agent, Mensah asserted that he was a new officer at the time of the shooting. Mensah said that since he had five years of experience at Wauwatosa and was SWAT trained, he had more extensive and relevant tactical knowledge and experience than Shamsi. In his deposition, referenced on the stand, Mensah said that besides Olson, none of the officers on scene during the Cole shooting — including Shamsi — had the level of training and experience that he had. Shamsi’s military combat experience “doesn’t mean anything,” he testified, “especially in a situation like this.” 

On the stand, Mensah described how he arrived at the Mayfair Mall on Feb. 2, 2020, and helped officers and mall security chase the fleeing teenagers. As they ran, a single gunshot went off — later determined to be fired by Cole and resulting in a self-inflicted gunshot wound which broke bones in Cole’s arm. When Mensah heard the shot, he pulled out his own weapon. Mensah said at that point he couldn’t recall how far he was from Cole, despite having replayed the shooting in his head repeatedly and viewed video and other reports from the shooting over the last five years. Mensah said that when the first shot went off, he didn’t see a muzzle or knew who fired. Cole fell to the ground and then 10 seconds later Mensah fired five shots. Later, he said Cole had pointed his gun in Mensah’s direction. 

Mensah said that the entire situation was “very fluid” and quick, and repeatedly said “I don’t remember” or “I don’t recall” throughout questioning from the Cole family’s  attorneys. Attorney Nate Cade referred to Mensah’s deposition testimony in 2023, in which he said he saw Cole fall to his hands and knees, and then crawl a short distance towards a concrete construction barrier in the Cheesecake Factory restaurant parking lot. Mensah said on the stand that although Cole turned towards him, he didn’t know if would  use the term “tucked” to describe his posture, as his colleague officer Olson did in testimony Tuesday. When asked if Cole reached under or over his shoulder, as he had previously testified, on the stand Mensah said, “I don’t recall.” 

Mensah testified that he only “vaguely” recalls his interview with detectives who investigated Cole’s shooting as part of the Milwaukee Area Investigative Team (MAIT). During his deposition, Mensah said that he saw a flash of light as he chased Cole, which he acknowledged could have been flashlights from officers and mall security. During his initial interview with detectives after the shooting in 2020, Mensah said he had not seen any muzzle flash, and on the stand Wednesday he said he couldn’t account for what MAIT detectives did or did not put in their report. Mensah said that once Cole was on the ground, he paused to assess his surroundings before he fired. When he saw a gun in Cole’s hand and felt it was being pointed at him, Mensah said he began to “prepare” his body to be shot, acquired his “target,” which was Cole, and then fired.

While questioning Mensah, Cade noted that several things that Mensah said he yelled to officers such as “the gun is out” — meaning he sees a firearm — are not in the police investigative report, nor does MAIT’s report mention that Mensah yelled “drop the gun” at Cole, as Mensah said he had done. Mensah said that the situation was “incredibly traumatic” to him and that when it comes to what he does and does not remember, “the brain works in mysterious ways.” 

Video and audio from Olson’s squad car captured after the shooting, played during the trial, captured someone yelling curse words, and then saying, “I can’t believe I just shot somebody.” Mensah said he could hear the curse words and acknowledged that it was him, but said that he couldn’t understand the words after that. Still, he argued that the recording did not show him saying what attorneys claimed, and that it was “random” radio chatter from other people. Cade argued that if it was Mensah saying those words, that suggests that he did not intend to shoot Cole, which he said showed that it was an instance of excessive use of force. The Cole family’s lawyers also highlighted Mensah’s statement after the shooting that “I was overwhelmed with emotions,” suggesting it showed that he had lost control. Mensah said some of his microphone equipment may have been malfunctioning, distorting the record of what he said at the time, but acknowledged that he was “amped up.” 

Cole family attorneys also brought up that Olson and Mensah had not separated themselves that night, which is required by MAIT protocols and is done to avoid contamination of statements. Mensah denied that he and Olson actually discussed anything about the shooting, and both officers said on the stand that they were friends then and remain friends today outside of work. When attorney Jasmyne Baynard, representing Mensah, questioned the officer, he said he grew up in the Wauwatosa area, and that he became an officer after seeing a friend get in trouble, and that he wanted to help people “truly in need.” He graduated from the police academy in 2012, and was hired by Wauwatosa in 2015, though he’d been an unarmed reserve officer since 2009. 

Answering questions about his actions on the night of Feb 2, 2020, Mensah said that police officers are not required to stay in their patrol sector, and that he went back to the mall after the foot pursuit was called out, because such pursuits can be unpredictable and dangerous. When he approached Cole on the ground, Mensah said he didn’t know the teen was hurt or that he’d shot himself. 

Mensah said that Cole didn’t do a “drastic turn around” to aim his gun, and that the motion he saw was “over the shoulder,” which contradicted his prior testimony. Mensah said that he couldn’t second-guess himself in the heat of the moment. “I don’t get that luxury in the fraction of a fraction of a second,” he said. 

“I’m not focusing on the gun anymore,” Mensah said, describing the moment as he prepared to fire. Instead, he said, he was focused on stopping a threat, and that he kept firing his weapon until he felt the threat was stopped. Mensah said he did not see a gun pointed at Olson, which Olson told MAIT in 2020 and testified to during the trial. During questioning, Mensah became emotional, and said, “I didn’t want to do it.” 

On the stand, Mensah was asked whether he felt either Shamsi (who didn’t see the gun or Cole move at all and was closest to Cole) or Olson (who was further away and said the gun was pointed at him, which would mean away from Mensah) were liars. Mensah said that he believes Shamsi was “mistaken” and then suggested the same about his friend Olson. Mensah said that he does not believe that he could have been wrong when he killed Cole. 

Once Mensah’s testimony concluded, Milwaukee police detective Lori Rom was called to the stand. Rom was one of the MAIT investigators initially assigned to interview officers involved in Cole’s death. Rom said that her department typically does not record officer interviews after shootings, and that had Mensah told them things like calling out that he saw the gun, or if he saw a muzzle flash, that it would have been documented as important information. Attorney Joseph Wirth, representing Mensah, noted that MAIT statements are not court statements made under oath. 

Tracy Cole, Alvin’s mother, was expected to testify, but this was not allowed after a chamber conversation between the judge and attorneys. Mensah’s defense attorneys called Sarah Hopkins, a civilian witness to the shooting to the stand next. Hopkins said she was outside the Cheesecake Factory when she saw the chase and shooting. Hopkins said she never saw Cole surrender or throw his hands up, but instead that he stopped running and turned towards officers in a shooter’s stance she recognized from taking concealed carry classes — something none of the other witnesses,  including Mensah,  said had happened. She’d initially claimed to be about 40 feet from the shooting, but later questioning determined that it had to have been at least 200 feet. Cole family attorney Cade highlighted that “we’re now in day three of trial” without anyone else having claimed to have seen what Hopkins said she saw. 

A mall security guard was also called to the stand, who helped chase after Cole and his friends. The guard said he heard a shot, saw a flash of light, and dropped to the ground. Like other witnesses, the guard said that Cole was on his hands and knees at one point, but that when he heard the first shot he got down to the ground for safety. The guard said he never saw Cole point a gun at anyone. Defense attorneys called former Green Bay police officer and Waukesha Area Technical College instructor Mike Knetzger, a certified instructor in defense and arrest tactics. Defense attorneys questioned Knetzger about use of force, noting that officers don’t need to go through each level of force before deadly force, especially if a situation happens quickly. Knetzger said that “special circumstances” such as the suspect’s behavior, could escalate the use of force. He later acknowledged, however, that shooting someone facing away from an officer without a gun pointed in their direction may not be an appropriate use of force. Knetzger said that use of force has to be considered from the perspective of a hypothetical “reasonable officer” and not specifically from the perspective of Mensah, who was the only officer on scene to fire his weapon at Cole. 

Closing arguments are expected on  Thursday, after which the jury will begin deliberations.