Judge denies motion in Whitewater murder case
ELKHORN—A Walworth County judge has denied a motion asking her to reconsider an earlier decision that lawyers for a Whitewater man accused of murder called unconstitutional.
Lawyers for Alan Johnson asked Judge Kristine Drettwan to reconsider her July ruling that Johnson must show a factual basis of self-defense before his lawyers can explain to a jury why he visited the home of his brother-in-law, Ken Myszkewicz, on Oct. 25.
Johnson is accused of fatally shooting Myszkewicz—a fact both sides are not actively contesting. He faces charges of first-degree intentional homicide and armed robbery.
Through court documents, Johnson, 32, has argued that he went to Myszkewicz's Whitewater home to look for child pornography he believed his brother-in-law kept on his computer.
He said he had found child porn at Myszkewicz's home years earlier, but local law enforcement told him it was too dated for them to investigate. They said if he found more, he should let them know, according to a police report filed with the court by Johnson's previous lawyer.
Johnson also has said Myszkewicz sexually and physically assaulted him when he was a child, and that this contributed to his fear of his brother-in-law, which his lawyers argue played a role in Myszkewicz's death.
Drettwan ruled July 28 that Johnson's lawyers must show a factual basis that Johnson was defending himself in Myszkewicz's basement that night before they can provide more of the backstory.
Only Johnson and Myszkewicz, 43, were present when the shooting occurred, so that factual basis can revealed only through Johnson's own testimony, argued Assistant District Attorney Diane Donohoo.
Johnson's lawyer Stephen Hurley filed a motion Aug. 25, asking Drettwan to reconsider her decision. It compelled Johnson to testify, he said, and defendants have a right to remain silent.
Drettwan denied the motion without a hearing because she said in a Sept. 13 court order no further evidence or testimony was required.
Johnson is scheduled for a jury trial Oct. 30 to Nov. 3 with a final pretrial conference at 2:30 p.m. Oct. 19. A separate motion hearing is also scheduled for 9 a.m. the day of the pretrial.