Lawyers in Whitewater homicide case say judge's ruling was unconstitutional
ELKHORN—Lawyers for a Whitewater man accused of murdering his brother-in-law say a Walworth County judge's July decision violates the man's constitutional rights.
Lawyers for Alan Johnson filed a motion asking Judge Kristine Drettwan to reconsider her ruling that Johnson must first show a factual basis of self-defense before his lawyers can explain to a jury why he went to the home of Ken Myszkewicz, 43.
Johnson is charged with first-degree intentional homicide and armed burglary. He is accused of fatally shooting Myszkewicz, his brother-in-law, in Myszkewicz's home Oct. 25.
Johnson, 32, through court documents has argued he went to the Myszkewicz's Whitewater home to look for child pornography he believed his brother-in-law kept on his computer. Johnson reported finding child porn years earlier and said he was looking for more recent evidence to give to police.
Johnson has also said Myszkewicz sexually and physically assaulted him and others when they were younger, according to court documents.
This contributed to Johnson's fear of Myszkewicz and are relevant details in Johnson's argument of self-defense, his lawyers argue.
In a motion for reconsideration filed Aug. 25, Johnson's lawyer Stephen Hurley said forcing Johnson to testify to show the factual basis for self-defense is unconstitutional because defendants have a right to remain silent.
Hurley said the history and explanation of why Johnson went to his brother-in-law's home are important to his argument and he should be able to address his claim of self-defense in opening statements, during cross examination of prosecution witnesses and during his own case.
Drettwan's ruling would unfairly hurt his case, Hurley wrote.
“The effect of the court's decision needlessly complicates the presentation of evidence and may even mislead the jury,” Hurley wrote. “Conditioning the presentation of evidence on the defendant's testifying will also invite the jury to form opinions before all evidence is heard.”
The prosecutor on the case, Assistant District Attorney Diane Donohoo, wrote a letter to Drettwan on Aug. 29 saying she should deny Hurley's motion without a hearing.
She wrote that Johnson testifying is the only way to establish he acted in self-defense because no one else witnessed the incident and “any other evidence would be speculative at best.”
“Self-defense does not rise and fall on how good or bad the victim's character was,” Donohoo wrote, “but rather on what the victim did in the room immediately before the shooting occurred.”
Johnson's lawyers hired Michael Knox from Knox & Associates as an expert to reconstruct the crime scene.
Among Knox's findings, which were filed with the court, were that the muzzle of the pistol was close to Myszkewicz's body and that dripped and transfer blood stains on Johnson's pants show Johnson was in close contact with Myszkewicz after some or all of the gunshots.
Donohoo objected to allowing Knox to testify, specifically taking issue with his “opinions as to the sequencing of shots fired, the position of each person in the room and their relative positions to each other during the shooting,” according to her objection filed Aug. 17.
Donohoo argued Knox's conclusions are “speculative and unreliable” and have been impacted by hearsay from Johnson.
Hurley wrote in response that Knox is a credible expert with experience in law enforcement, crime scene investigation, reconstruction, ballistics and gunshot wound dynamics.
Hurley also formally asked Drettwan to reconsider her ruling that Johnson could not say what he found on Myszkewicz's computer, even if he can mention past allegations.
Hurley has said explaining to the jury that Johnson went to the Myszkewicz home to find child porn and not saying what he found will mislead the jury to think Johnson found nothing.
Rather, Johnson found more than 5,000 files of neighborhood girls going to and from school or participating in athletic events, according to court documents. Many of the files were organized into categories such as “Blondie's.”
Although there was some dispute as to whether any of the images constituted child porn, Hurley wrote there were pictures of girls “unambiguously” younger than 18, and some pictures had watermarks consistent with websites that have a history of child porn.
It is not clear when or how Drettwan will make a decision on the new motions.
Johnson is scheduled for a jury trial at the end of October into November with a final pretrial set for 2:30 p.m. Oct. 19.