Deja Vishny, the ex wife of the judge who issued the unprecedented decision that there is probable cause that already cleared former Wauwatosa Police Officer Joseph Mensah committed homicide appeared in a press conference last year in which she trashed Mensah and vowed that she and attorney Kimberley Motley would “use every legal means at our disposal to continue this fight. To continue the fight to make sure Mensah is never a police officer.”
You can watch the video later in this article.
In addition, Vishny, a former public defender who works for Motley’s law firm on an of counsel basis, has written many anti-Mensah screeds on Twitter, calling for him to be fired. She also wrote a tweet that somewhat presaged what her ex-husband, Milwaukee County Circuit Judge Glenn Yamahiro, decided as a result of a rare John Doe hearing requested by Motley and the family of Jay Anderson, who Mensah shot to death. Vishny, who has helped Motley represent the Anderson family as a lawyer, was listed as an attorney of record on the John Doe case with Motley for about a week before withdrawing when Yamahiro was selected as judge.
Vishny is also the mother of Yamahiro’s child. Yet Yamahiro decided he didn’t have a conflict of interest, although he did disclose the tie in court.
On March 25, Vishny tweeted, “Police practices expert James Trainum testified there is probable cause to charge Joseph Mensah with reckless or negligent homicide for killing Jay Anderson.#justice4jay.”
That’s close to what her ex ended up finding in his decision this week, although a special prosecutor will ultimately decide whether to charge Mensah and the judge claimed there is probable cause that he committed the crime of homicide by negligent use of a dangerous weapon. However, Yamahiro is also choosing that special prosecutor. The decision, after a one-sided hearing led by Motley in which Mensah’s side wasn’t able to present a defense or cross-examine witnesses, runs counter to investigations by the DA, a former US attorney acting as an independent investigator and federal prosecutors, all of whom did not find that Mensah acted unlawfully in the 2016 shooting.
In November 2020, Vishny tweeted, “Joseph Mensah must never be a cop again, anywhere.#justiceforjayanderson #justiceforalvincole #justiceforantoniogonzales.” He is now a Waukesha County Sheriff’s detective, and Waukesha County Sheriff Severson has announced that he is keeping Mensah on the job for now.
In addition, Vishny has exhibited extreme animus against Wauwatosa police, a review of her tweets shows. She claimed on Twitter the Wauwatosa police sent her name to the FBI because of her legal work against them, alleging they must think her legal work is “dangerous.” She called herself one of the “lawyers for the families.” That includes the Jay Anderson family.
We first extensively detailed Vishny’s ties to the judge in May; however, the October 2020 video we’ve unearthed makes the alleged conflict of interest even clearer. Fox 6 ran a video of a press conference that Motley and Vishny held after the arrest of the mother and sisters of Alvin Cole, who was shot and killed by Mensah. Mensah has shot and killed three people in the line of duty; he was cleared after extensive investigations into each death.
“We will, as attorney Motley said, use every legal means at our disposal to continue this fight. To continue the fight to make sure Mensah is never a police officer, to continue the fight for justice for the Cole family, the Anderson family, the Gonzalez family, to continue the fight for justice for the people who have been illegally arrested and physically abused by the police last night and in other times in Wauwatosa and to continue the fight on behalf of the residents of this city, who care about changing their city,” Vishny said in the above video.
She claimed a special investigator concluded in a report that “Joseph Mensah has not been fit for duty in the past, he is not fit for duty now, and he will never be fit for duty as a police officer anywhere in the future. Why? there are a number of reasons. Besides just the fact that he’s he killed three people if that isn’t reason enough which is what we are saying he was found to be untruthful. He is not a credible enough police officer to put on the stand which is crucial to the administration of justice.”
Vishny went on to trash Wauwatosa, saying, “Why is Wauwatosa protecting this officer? There are many reasons to fire him, and this police chief could have done it now. Why has this police chief protected him? Why has this city protected him? Why is this city dragging the mother, a grieving mother and her living children out of a car it hasn’t even been a year yet since her son was killed by this police department? Why is this police department illegally arresting journalists? All of you journalists know here that curfews have to have exemptions. We haven’t even seen a written copy of this we don’t even know if this curfew is legal.”
Vishny has also tweeted about Wauwatosa police, the John Doe, and the Anderson shooting.
July 6, “Apparently my legal work is dangerous enough so I ended up on a list sent by Tosa PD to the FBI.”
On April 20, she wrote, “Justice has been done for George Floyd. Where is justice for Eric Garner, Amidou (sic) Diallo, Breonna Taylor, Michael Brown,Tamir Rice and others killed by police. Not to mention all the Wis men killed – Dontre Hamilton, Jay Anderson, Derrick Williams, Alvin Cole.#Weneedjusticenow.”
In February she shared a story on the John Doe hearing being held by her ex and tweeted, “Read about the hearing to charge Joseph Mensah.” That same month, she wrote, “The hearing asking a judge to appoint a special prosecutor to charge Joseph Mensah has started with expert testimony that he was not acting in self defense and the investigation was corrupt.#policeviolencemustend.”
That same month, she wrote, “Cops like Joseph Mensah have to be stopped from job hopping. #Stopwanderingpolice” and “Good riddance Chief Weber. Tosa, will you hire a chief who will make changes? #Tosaneedsjustice #Blacklivesmatter.”
In November, she wrote, “Joseph Mensah’s resignation is long overdue. While we welcome the news; it is tragic that the WPD under Chief Weber’s leadership failed to address his shortcomings for years. It is time for new leadership in the WPD!#stillfightinginTosa.”
In January, she promised, “Joseph Mensah was hired as a Waukesha County Sheriff- this fight is still underway. Clearly Waukesha County needs a new sheriff with better judgment. #fireMensah #voteoutsheriffseverson.”
In October 2020, she wrote, “Police must be held accountable for killing people. Their job is to uphold public safety and preserve life. We are continuing the fight. #alvincole #jayanderson #antoniogonzles.” That same month, she wrote, “Kimberley Motley, the Cole family and I will be meeting with DA John Chisholm Wednesday afternoon and we think he will likely tell us his decision in this investigation. We are hoping for the best- and that justice prevails. Alvin Cole should be alive today! #justiceforalvincole.” Mensah was cleared in the Cole shooting because Cole was armed with a gun that discharged near officers after fleeing from them outside Mayfair Mall.
In August 2020, she wrote, “The Wauwatosa Police and Fire Commission meeting is rescheduled for Monday (8/17) at 5PM via Zoom. They still won’t let us, the lawyers for the families, speak.”
Her page is filled with diatribes against the police; she criticized the DA’s exoneration of the Kenosha police officer who shot and killed Jacob Blake, for example.
She’s had some very negative things to say about conservatives, too. In March, she tweeted, “Glen Grothman is a racist pig.” She called President Trump an “orange monstrosity” in several tweets. She wrote of Ron Johnson, “The health department needs to get an order to confine Ron Johnson until he’s virus free. #QuarantineRonJohnson.”
Yamahiro is also a public defender and was initially appointed to the bench by former Democratic Gov. Jim Doyle before being reelected.
For months, Vishny and Motley have been joined at the hip in calling for criminal charges against Mensah, working as lawyers for the Anderson family, firing off a letter opposing a settlement agreement that Mensah entered with the city, demanding open records in Mensah’s cases from the city, and challenging curfew violations.
How close are the pair? “Best partner EVER!!” Motley declared about Vishny, a former Milwaukee public defender.
Conflict of Interest or Perception Thereof?
We contacted Judge Yamahiro to see if he had any comment on the alleged conflict with Vishny in the past. His clerk got back to us and said that the issue was “discussed on the record at the time” and the judge had no further comment. We contacted Mensah’s attorney Jon Cermele and left a message and didn’t hear back, when we first wrote about the issue.
For our first story on this, we also contacted Rick Esenberg, a legal expert who is president of the Wisconsin Institute for Law and Liberty. Specifically, we asked him whether the judge was mandated to recuse and whether this kind of conflict is a violation of judicial ethics. He said that’s unclear and open to interpretation; some judges have voluntarily recused in somewhat similar cases to remove, minimally, perception issues of fairness, though.
The Wisconsin case State v. Crystal Harrell involved “a case tried by the district attorney’s office, a circuit court judge, whose spouse is an assistant district attorney in the same county.” The Supreme Court was asked to consider whether state statutes prohibit a judge “from hearing a case when a close relative is ‘counsel thereto’ for either party.” The court found that statutes do not require “a judge to disqualify himself or herself in such a situation as long as his or her spouse did not participate in, or help prepare, the case.”
The 1996 Wisconsin Supreme Court decision also found that a conflict extends to “the attorney of record and any other attorneys who appear or participate in the case.” That case differed in some keys ways from this set of circumstances, though; for example, the court found that prosecutors don’t have a financial interest in the outcome of a case, making the conflict less problematic. In this case, Vishny has been repeatedly identified as an Anderson family attorney, although it’s not clear if she’s getting paid.
Did she help prepare the case? Did she participate?
Esenberg believes Vishny’s deep involvement in the issue makes the question of recusal more complicated.
“The judicial code defines a member of the judge’s family as follows: ‘Member of the judge’s family’ means the judge’s spouse, child, grandchild, parent, grandparent and any other relative or person with whom the judge maintains a close familial relationship.’ A judge may not sit on a case in which a member of his family is a lawyer,” Esenberg told WRN.
“Maybe recusal is not required by this provision because 1) she is not a lawyer ‘in the proceeding” and 2) the two are divorced. The first argument can work – Justice Ann Walsh Bradley recused herself from the Doe case because her son’s firm was involved – although others read it differently. I recall Justice Steinmetz sitting on cases involving Foley & Lardner even though he had a son and two sons-in-law at the firm. But her involvement in other aspects of the matter make this tougher. The other point – that they are divorced – could succeed as well but may turn on the nature of their relationship. There are other provisions that might be said to apply and also the appearance of impropriety standards that are general and broad but that the judge ought to consider.”
Overall, he said it’s not clear or a settled matter in the law.
Certainly, Glenn Yamahiro could have chosen to recuse even if not mandated to remove any perception issues in such a contentious case; surely, there are a number of other judges without such close ties to one side who could have heard the case.
Court records show that Vishny, whose real name is Deborah Vishny, was divorced from Yamahiro in 2010. They were joint petitioners and there was a petition for child support. He is remarried. A 2004 article on the Urban Milwaukee website confirms that Vishny, a former public defender, was married to Yamahiro. “I’m Glenn’s wife,” she told that reporter, who wrote that “the couple has one child,” who was then in elementary school.
A 2016 article by the Neighborhood News Service quoted Vishny gushing about Motley and says she was her former supervisor.
There’s more. “Lawyers Kimberley Motley and Deja Vishny issued a letter to Wauwatosa Common Council members, City Attorney Alan Kesner, Police and Fire Commission (PFC) president Dominic Leone, and others on Nov. 18 outlining the ‘strong objections’ they have to the (Mensah settlement) agreement,” according to ABA Journal.
“Motley and Vishny have represented the families of those Mensah has killed, including 17-year-old Alvin Cole. The Motley Legal firm also filed complaints against Mensah on behalf of the families of 25-year-old Jay Anderson, Jr. and 28-year-old Antonio Gonzales.”
What are the rules of judicial recusal? The American Bar Association says:
Other “close personal relationships”—such as amicably divorced individuals who maintain joint custody—require that the judge follow the dictates of rule 2.11(C), which provides for a remittal of disqualification. That rule reads: A judge subject to disqualification under this Rule, other than for bias or prejudice under paragraph (A)(1), may disclose on the record the basis of the judge’s disqualification and may ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive disqualification. If, following the disclosure, the parties and lawyers agree, without participation by the judge or court personnel, that the judge should not be disqualified, the judge may participate in the proceeding. The agreement shall be incorporated into the record of the proceeding.
WTMJ described Vishny as an “Anderson family” attorney.
“There are a lot of changes that need to be made in policing and Wauwatosa Police Department has been a problem,” Vishny told WTMJ.
“Vishny and Kimberley Motley were recently retained by the Anderson family. The attorneys are also working with Alvin Cole’s family,” the television station reported.
They’ve hosted fundraisers together.