MILWAUKEE — A Whitewater man who shot and killed his brother-in-law in 2016 should get a new trial after an appeals court ruled Wednesday that a Walworth County judge should have let the jury decide if the killing was self-defense.
The District II Court of Appeals decision points to three errors by Judge Kristine Drettwan from the fall 2017 trial of Alan M. Johnson, 35, who said he shot and killed Ken Myszkewicz, 43, on Oct. 25, 2016, in Myszkewicz’s Whitewater home.
The appeals court ruled Drettwan should have allowed the jury to:
• Decide if the killing qualified for a perfect self-defense argument, which could have exonerated Johnson.
• Consider a lesser-included charge of second-degree reckless homicide, which is different from the first-degree reckless homicide the jury convicted Johnson of because it doesn’t require the jury to believe Johnson showed “utter disregard for human life.”
• Hear evidence Johnson found child pornography on Myszkewicz’s computer that night — not just that he went there in search of it.
Whether Johnson killed Myszkewicz was not the issue at trial. Johnson has maintained he went to the home to find fresh evidence of child porn on Myszkewicz’s computer — something Johnson had seen before and reported to law enforcement, who told him the evidence was “stale.”
So after what Johnson said were failed attempts to get Myszkewicz to address his problems, he went to the home at 911 Peck St. to find more evidence.
He also brought a .40-caliber Smith & Wesson pistol that belonged to his father, Eric Johnson, who was a former Racine County sheriff.
On the night of the shooting, Johnson claimed he found more than 5,000 photos of neighborhood girls put into categories such as “blondie,” according to court documents.
But Johnson said when Myszkewicz saw him at the computer in the early morning hours — perhaps fearing a mandatory prison term that comes with possessing child porn — Myszkewicz attacked.
Johnson also described how Myszkewicz sexually, physically and mentally abused him years before. Two of Johnson’s sisters also testified Myszkewicz was “a violent person” and had physically abused one of them, too, according to the decision.
The Walworth County jury on Nov. 7, 2017, decided Johnson was guilty of first-degree reckless homicide. But the jury declined to convict Johnson of first- or second-degree intentional homicide, which would have required the jury to believe Johnson intended to kill his brother-in-law.
The appeals court wrote that passing on those two charges showed the jury could have gone for a complete acquittal if it was allowed to consider self-defense.
In January 2018, the judge sentenced Johnson to 25 years in prison and 10 years of extended supervision.
Johnson filed his appeal in May 2019.
The appeals court decision, which was first reported Wednesday by the Milwaukee Journal Sentinel, weighed in on how the “castle doctrine” applies in the case.
The doctrine in Wisconsin statutes is meant to say homeowners can use lethal force in defending against unlawful and forced entry into the home, car or place of business.
The question at hand was if someone who trespassed into a home could argue for self-defense, specifically if they had a “reasonable belief” of an “unlawful interference” by the homeowner, according to the decision.
The appeals court brought up how the doctrine doesn’t apply if the homeowner was “engaged in a criminal activity” or using the home “to further a criminal activity at the time.”
The decision points out Drettwan initially ruled at trial that Johnson had shown enough evidence to assert self-defense, but she “changed course … and refused to instruct the jury on perfect self-defense.”
“It was for the members of the jury — bringing whatever real-world experiences they might have — to consider the reasonableness of Johnson’s actions under the circumstances that existed in (Myszkewicz’s) home shortly after 2 a.m. on October 25, 2016,” the decision states.
The decision also said Drettwan “invaded the province of the jury in refusing to instruct the jury” on second-degree reckless homicide.
Additionally, the child porn Johnson said he found on the computer was relevant enough for the the jury to be told about it.
“Weighing the high degree of probative value against the danger of unfair prejudice, we conclude that the probative value of the existence of child pornography on (Myszkewicz’s) computer substantially outweighs the danger of unfair prejudice to (Myszkewicz) or the State,” according to the decision.
The decision also said Drettwan correctly ruled that Johnson needed to testify before introducing some evidence in order to prove his state of mind for his self-defense argument, as he was the only survivor from the incident.
The decision also states that the prosecution “would be precluded from retrying Johnson” on the counts a jury already acquitted him on, referencing first- and second-degree intentional homicide as well as a count of burglary.
Going after those charges again, even with the trial court’s errors, would run against the double jeopardy clause of the U.S. Constitution’s Fifth Amendment, according to the decision.
The assistant attorney general who handled the case for the prosecution did not immediately respond to an email from The Gazette on Thursday asking if she planned to ask the state Supreme Court to weigh in on the case.