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MADISON

State Supreme Court justices Tuesday peppered lawyers with questions about a Whitewater murder case that an appeals court ruled last summer should get a new trial in Walworth County Court.

One of the core legal matters both sides argued about was whether a jury should be allowed to consider if Alan M. Johnson’s 2016 killing of his brother-in-law, Ken Myszkewicz, could qualify as perfect self-defense, which would exonerate Johnson.

The prosecution said that verdict would “condone vigilantism,” while the defense argued that a jury should make that decision—not the judge.

Johnson was convicted of fatally shooting Myszkewicz in the brother-in-law’s Whitewater home in the early morning hours of Oct. 25, 2016. Johnson argued on appeal that, among other things, Walworth County Judge Kristine Drettwan should have instructed the jury to consider self-defense.

Whitewater man who killed brother-in-law gets new trial, appeals court rules

Johnson has argued that he was defending himself because he went to the home that night to search for child porn on Myszkewicz’s computer. He said he had found child porn that night as well as years before, when authorities told him to report back if he found anything more recent.

Johnson and other family members also testified that Myszkewicz was physically and/or sexually abusive to others, including Johnson himself.

The District II Court of Appeals in July agreed that Drettwan made three errors during the trial—including the decision about a perfect self-defense argument—and ordered a new trial for Johnson.

Now the state Supreme Court is weighing the matters after hearing oral arguments via a video conference Tuesday.

Timothy Barber, an assistant attorney general with the state, said the prosecution’s main point boiled down to: “It is not objectively reasonable for an armed intruder to enter someone’s home and to think that the homeowner doesn’t have the ability to exercise some degree of force.”

Barber added that there is “zero evidence” that a jury would use to conclude that shooting Myszkewicz five times was “necessary and reasonable.”

But some justices appeared to disagree with Barber’s characterization that five shots was a lot in those circumstances.

Justice Annette Ziegler said people are not taught to shoot a gun once and “see what happens,” adding that “it’s not uncommon” for shootings to involve that many shots being fired.

“You reference the five bullets. You think that’s a very important fact,” she said. “I might think that’s a less important fact.”

Barber said the response needs to be “proportional” and that there was “no evidence” that Myszkewicz physically contacted or threatened Johnson when he saw him at the computer. Johnson has testified that his memory went blank after Myszkewicz lunged at him.

But Justice Rebecca Bradley said Barber was making a lot of assumptions about the case that are really matters for the jury to consider.

When considering the context—the alleged family history of abuse and violence—Bradley asked, “Shouldn’t we take that into account?”

Justice Brian Hagedorn similarly weighed in with a question about what a proportionate response would be in that situation, given the context that Johnson testified about.

Whitewater man gets 25 years in prison for killing brother-in-law

Catherine White, the attorney representing Johnson on Tuesday, said some questions about whether Johnson was right or wrong in what he did are fair to ask. But she hammered home that a jury should be answering those questions.

Chief Justice Patience Roggensack said it “bothers” her that some of Johnson’s case requires that Myszkewicz was “unlawfully interfering with Johnson.” If Myszkewicz had the right to attack someone who was in his house without permission, how could the defense show unlawful interference?

Ziegler asked White if her case invites a “new brand of vigilante justice.” White said jurors could believe that line of argument, but she just wants them to have a chance to consider it.

But Ziegler pressed again.

“In any home invasion situation, make sure you bring your gun because if the homeowner comes upon you in the home, you can say that you thought you had a good reason to be there,” she said.

“And so you shot the homeowner, under your analysis. Or at least it gets to a jury,” she continued. “Is that a reasonable interpretation of the law?”

But White disagreed, saying it was the “totality of the circumstances” that allow for the self-defense jury instruction—and not the “mere fact” that Johnson testified as to why he was there.

She also pointed to how the jury acquitted Johnson on charges of first- and second-degree intentional homicide, as well as burglary. They found him guilty of first-degree reckless homicide.

“We know that Johnson’s testimony was believable to a reasonable jury,” White said.

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