‘Unusual proceedings:’ Dane Co. judge to review Tony Robinson shooting

MADISON, Wis. – A Dane County Circuit Court judge shared plans to hold an evidentiary hearing to determine if there is probable cause to pursue charges against Madison police officer Matt Kenny, who shot and killed Tony Robinson in 2015.

Seven years after District Attorney Ismael Ozanne determined Robinson’s death to be the result of lawful use of deadly police force, his grandmother is petitioning the court to reconsider probable cause for reckless homicide.

“We’re really, really happy to finally have a judge that’s going to be looking at the evidence,” said petition supporter Kristen Mathews. “That’s all we’ve ever asked for, to have that looked at and reviewed.”

It’s a decision usually left to the district attorney, but Wisconsin Statute 968.02 allows a judge to make the call if the DA refuses or is unable.

RELATED: Tony Robinson’s supporters continue to fight for accountability on 7th anniversary of his death

On Thursday Robinson’s grandmother, Sharon Irwin Henry, was represented by seven lawyers urging Judge Juan Colás to make his finding based on written filings and documentary evidence. 

“The amount of information that is already in the record dwarfs that of what a prosecutor would typically provide to the court system,” said attorney Nick Gansner.

After some debate, Colás determined an evidentiary hearing was necessary to make his decision, but because the use of Statute 968.02 is so uncommon, there isn’t a clear rulebook on what kind of evidence would be permissible.

“These are unusual proceedings,” Colás said. “There really are not many cases involving this.” 

So far, Colás has indicated there would be live testimony, but has yet to determine if hearsay would be allowed; Irwin Henry’s attorneys think it should be because it’s allowed when the DA reviews police reports and in preliminary hearings.

Colás plans to meet with Irwin Henry’s lawyers next week to work out the rules for the evidentiary hearing and set a date.

“This is a matter of great importance to the community and Dane County,” Colás said.  “The very purpose of it is to make transparent the evidence on which a charging decision might be made is part of scrutinizing the decision that led to the refusal by the district attorney.”

If the judge goes on to determine there is probable cause, he would then need to decide whether to allow a criminal complaint to be filed and whether to appoint a special prosecutor.