The jury in a Whitewater murder trial could not reach a verdict after deliberating four hours Monday and was scheduled to return to deliberate more this morning.
A jury of eight women and four men is expected to decide if Alan M. Johnson, 32, should be convicted of first-degree intentional homicide and armed burglary following the shooting death of his brother-in-law Ken Myszkewicz, 43, on Oct. 25, 2016, in Myszkewicz’s Whitewater home.
The jury could convict Johnson of two lesser-included offenses: second-degree intentional homicide or first-degree reckless homicide.
A first-degree-intentional-homicide conviction requires the jury to find Johnson intentionally killed Myszkewicz.
To convict Johnson of second-degree intentional homicide, the jury would have to find Johnson intentionally killed Myszkewicz because he unreasonably believed he was preventing death or great bodily harm to himself.
If the jury does not unanimously believe Johnson did either, they could consider first-degree reckless homicide, finding Johnson did not intend to kill Myszkewicz but caused his death by acting recklessly with utter disregard for human life.
The trial, which went beyond its scheduled finish last week into Monday, centered on Johnson’s intent. Both sides have agreed Johnson shot Myszkewicz, but Johnson’s lawyers say Myszkewicz attacked Johnson, who feared for his safety in a confined computer room.
Johnson’s lawyers have argued Myszkewicz sexually and physically assaulted him and another family member when they were children, which led Johnson to fear Myszkewicz.
On the night of the shooting, Johnson has said he went to the Myszkewicz home to search for child porn on his brother-in-law’s computer. In 2015, Johnson reported to law enforcement that he had found child porn on Myszkewicz’s computer years earlier, but a Walworth County sheriff’s detective said the tip was too stale.
If he found newer evidence, Johnson should tell them, the detective reported.
After Myszkewicz was confronted about the child porn by Alan’s father, Eric, and after Myszkewicz delayed getting counseling, Johnson went to get what police had asked for, Johnson’s lawyer, Stephen Hurley, said.
And then Myszkewicz found Johnson at his computer.
Hurley said Johnson was defending himself against Myszkewicz, who was worried he could end up in prison if Johnson got out of that room.
“He has every reason to believe Ken would do harm to him,” Hurley said.
Assistant District Attorney Diane Donohoo said Johnson “ambushed” Myszkewicz in his home after showing up with a loaded gun. She argued Johnson had other options besides killing Myszkewicz, such as running, hiding or fighting by other means.
“When you bring a gun, you expect to use that gun,” she said.
The defense could not properly argue the shooting was self-defense because Johnson was acting unlawfully, Donohoo argued. Myszkewicz was in his right to defend “his castle,” she said, quoting an expression to start her closing arguments.
Donohoo said the jury could never know for certain what happened in the computer room that night because Myszkewicz is dead and Johnson said he couldn’t remember specifics from the altercation.
Donohoo said Johnson repeatedly lied to law enforcement the day of the shooting before he ultimately confessed and said, “Arrest me. I did it.” She said his story has changed over time.
“He wanted to shoot first, lie later and get away with it now,” she said.
Even if Johnson did go to Myszkewicz’s home to expose a cache of child porn, Donohoo said, that would not excuse taking a life. She said Johnson acted as the “judge, jury and executioner.”
“Alan Johnson isn’t the porn police,” she said. “We are not a vigilante society.”
Hurley said testimony showed his client was a passive and nonviolent man. Hurley said it was a “really bad decision” for Johnson to take his father’s .40-caliber Smith and Wesson pistol to Myszkewicz’s home.
Johnson’s father is the former Racine County sheriff.
Because of mounting family responsibilities—aging parents with health problems and a sister whose husband died—Johnson was feeling depressed and was seeking a counselor, Hurley said.
Johnson was not the fighting type, Hurley said. He said Johnson and his family showed the same pattern: Put your head down and avoid it.
“Everybody was passive. Everybody was quiet,” Hurley said. “Everybody tried to avoid it.”
Donohoo called into question Johnson’s accusations of abuse by Myszkewicz because at one point he denied to a police officer that any molestation occurred, Hurley said. Johnson was ashamed, Hurley said, and it was not information he wanted to share—as sexual assault victims, especially children, might react.
“Shame on the state for that,” Hurley said of Donohoo’s remarks.
Johnson’s previous lawyer, Scott McCarthy, testified Monday morning about what Johnson found on Myszkewicz’s computer that night.
Judge Kristine Drettwan, who in March disqualified McCarthy as defense attorney because he might have to testify, had previously ruled such testimony would not be allowed.
After statements by the prosecution during the week, however, she allowed it.
Johnson claims in court documents he found more than 5,000 images of neighborhood girls going to and from school or participating in athletic events. Files were organized into categories such as “Blondies.” The time stamp on one of the photo files was listed as the day before the shooting.
The jury was scheduled to reconvene at 8:30 a.m. today.