ELKHORN

If a Whitewater murder suspect can show a factual basis for self-defense, then allegations against the murder victim of sexual and physical assault and child pornography possession would be admissible during his trial, a Walworth County judge ruled Friday.

The crux of the case is not whether Alan M. Johnson, 32, killed his brother-in-law Ken Myszkewicz, 43, in Myszkewicz’s Whitewater home Oct. 25.

The main arguments center on why Johnson showed up in Myszkewicz’s home that night and searched Myszkewicz’s computer for nearly two hours, as Johnson’s lawyer Stephen Hurley argued.

Johnson, who is charged with first-degree intentional homicide and armed burglary, claims he went to Myszkewicz’s home to find child porn he believed to be there after having seen some on Myszkewicz’s computer five or six years earlier, according to court filings.

In April 2015, citing fear for the safety of his goddaughter around Myszkewicz, Johnson filed a report with the National Center for Missing and Exploited Children about the child porn he said he found years earlier.

Walworth County sheriff’s deputies interviewed Johnson the next month and told him the information was dated and they did not have enough to start an investigation. If Johnson found new information, he should report back to them, they told him.

After Johnson confided to his father, former Racine County Sheriff Eric Johnson, that Myszkewicz had sexually molested him as a child and that he had found child porn on Myszkewicz’s computer, Eric Johnson told Myszkewicz to get help and told Alan Johnson to report the child porn.

Alan Johnson decided after Myszkewicz delayed getting help that he would return to find more recent evidence police had asked for, according to court documents.

Judge Kristine Drettwan ruled Friday that the defense can include this argument as to why Johnson went to Myszkewicz’s home.

Defense lawyers argue in court filings that Myszkewicz, while naked, found Johnson in the small room with the computer and charged at him.

“Alan extended his left arm to block the charge, and his right arm to shoot,” according to an affidavit Hurley filed July 6. “Ken died.”

Drettwan also ruled to allow the defense to include allegations from Alan Johnson and his sister (not the one married to Myszkewicz) that Myszkewicz choked them both nearly to the point of passing out when they were children, Hurley’s affidavit states.

Drettwan also would allow Johnson’s allegation that Myszkewicz sexually molested him as a child.

Assistant District Attorney Diane Donohoo argued introducing allegations of sexual assault, physical assault and child porn possession would create several trials within one murder trial.

Drettwan ruled the information was relevant.

Drettwan ruled the defense cannot reveal to a jury what Johnson or police might or might not have found on Myszkewicz’s computer the night of the murder.

That night, Johnson found more than 5,000 files of neighborhood girls going to and from school or participating in athletic events, Johnson’s lawyers past and present have argued in court filings and in open court. Myszkewicz’s home is near a school. Many of the files were organized into categories such as “Blondie’s.”

Drettwan ruled that information would be “unfairly prejudicial.”

“(It) is not relevant. It doesn’t matter, frankly,” Drettwan said. “Whether the defendant was correct or incorrect about the child pornography is not relevant to the homicide, to any claim of self-defense or to the burglary charge.”

After Drettwan’s ruling, Hurley said arguing why Johnson showed up to the Myszkewicz house without being able to show what he found could leave the jury to assume he found nothing.

“That will make it appear to the jury that there was none,” Hurley said.

“Not necessarily,” Drettwan responded.

Drettwan also ruled the defense cannot make arguments that Myszkewicz was “self-absorbed, domineering and aggressive,” as Hurley wrote in July 6 affidavit.

Johnson is scheduled for a jury trial from Oct. 30 to Nov. 3, with a final pretrial conference at 2:30 p.m. Oct. 19.

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