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Judge declines to appoint special prosecutor in police killing of Tony Robinson

Dane County judge dismissed a petition from Robinson's grandmother, citing lack of authority under Wisconsin law

A sign says "Dane County Courthouse" on the outside of a building.
The Dane County Courthouse on Thursday, May 25, 2023, in Madison, Wis. Angela Major/WPR

A Dane County judge will not appoint a special prosecutor in the killing of Anthony Robinson, an unarmed Black 19-year-old who was shot by a white Madison police officer in March 2015.

Judge Stephen Ehlke dismissed a petition brought by Robinson’s grandmother, Sharon Irwin-Henry, a court order signed Friday shows.

In her request filed last year, Irwin-Henry argued a rarely-used section of Wisconsin law allows someone to petition a judge for a special prosecutor in situations where probable cause of a crime can be established and a district attorney “refuses or is unavailable” to charge someone with that crime.

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Dane County District Attorney Ismael Ozanne announced in May 2015 that he would not file charges against Matt Kenny, the officer who shot Robinson. Ismael said he concluded the “tragic and unfortunate death was the result of a lawful use of deadly police force” by Kenny and cited an investigation by Wisconsin’s Department of Criminal Investigation, which concluded Kenny opened fire after Robinson assaulted him.

In the order entered Friday, Ehlke did not weigh the question of whether there was probable cause that Kenny committed first or second degree reckless homicide. Instead, Ehlke wrote that, given the circumstances, he lacks the authority under Wisconsin law to appoint a special prosecutor.

He referred to a 2015 Wisconsin Supreme Court case, which found that one of nine reasons listed in state law must exist for a special prosecutor to be appointed. Those conditions include when a DA is charged with a crime, when a DA has a conflict of interest or when the DA is absent because of circumstances like sickness, parental leave or military service.

In a statement about the petition’s dismissal, the Madison Police Department said it “respects the Court’s decision on this matter.”

Kenny remains employed the department in a non-public facing role as part of the training team, the department’s acting spokesperson Lt. Ed Marshall confirmed.

A message seeking comment from Irwin-Henry’s attorney Monday morning was not immediately returned.

In 2017, members of Robinson’s family reached a $3.3 million settlement with the city’s insurance carrier after filing a federal civil rights complaint.

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