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Walworth County Judicial Center in Elkhorn, Wis.

MADISON

A Whitewater man who killed his brother-in-law in 2016 over child porn the man claims he found will get a new trial in Walworth County Court, the state Supreme Court ruled in a decision released Wednesday.

Alan M. Johnson, 36, filed an appeal after a jury convicted him of a lesser homicide charge at a 2017 trial over the shooting death of his brother-in-law, Ken Myszkewicz, a man Johnson and others claimed possessed child porn and was physically, emotionally and/or sexually abusive.

The high court on a 4-3 vote agreed with most of what an appellate court previously ruled and decided Johnson met the "low evidentiary bar" needed for the jury to consider what's known as perfect self-defense, as well as another lower homicide charge.

Johnson has said he was at Myszkewicz's Whitewater home in the early hours of Oct. 25, 2016, because he was looking for evidence of child porn on a computer—evidence similar to what he had previously tried to report to police, who told him to come back if he found any more timely evidence.

The state Supreme Court, however, disagreed with the appeals court on one matter and decided the Walworth County Court judge on the case properly ruled that Johnson could not testify to what he found on the computer that night.

Johnson has said he found more than 5,000 photos of neighborhood girls put into categories such as “blondie,” according to court documents.

When Myszkewicz saw Johnson in his home, Johnson claimed his brother-in-law tried to attack him. So Johnson, who brought a gun, shot and killed Myszkewicz.

One of the core legal issues during Johnson's appeal was if his actions could qualify under perfect self-defense, which would have led a jury to exonerate Johnson.

The prosecution at both local and state levels argued that such a ruling would "condone vigilantism," saying Johnson was an armed intruder in someone else's home.

The District II Court of Appeals last summer agreed with Johnson's lawyers that Judge Kristine Drettwan made three errors during Johnson's trial—including a decision excluding a perfect self-defense argument—and ordered a new trial for Johnson.

After Johnson's conviction on a first-degree reckless homicide charge, Drettwan in January 2018 sentenced Johnson to 25 years in prison, a term he has since been serving. The jury acquitted Johnson on a burglary charge.

The decision

Justice Brian Hagedorn wrote the majority opinion, which Justices Ann Walsh Bradley, Rebecca Bradley and Rebecca Dallet joined.

The decision agreed with the appellate court in saying that the jury should have been instructed on perfect self-defense. The “low bar” Johnson needed to cross was just that “some evidence” supported it.

“The evidence must be viewed in the light most favorable to the defendant,” according to the decision.

For a verdict of perfect self-defense, Johnson needed to show that he “reasonably believed he was preventing or terminating an unlawful interference with his person” and “he intentionally used only the force he reasonably believed was necessary to terminate that interference.”

The justices in the majority thought Johnson could meet that bar enough for the jury to consider that verdict.

Imperfect self-defense, which Johnson’s jury was instructed on, has to do with “unreasonable” beliefs and could mitigate charges of intentional homicide.

The jury also should have been able to consider second-degree reckless homicide, the justices ruled.

The decision went against the appellate court findings in one area, ruling that Drettwan “properly exercised (her) discretion” in stopping Johnson from testifying what he found on Myszkewicz's computer that night.

“The probative value of the evidence would be substantially outweighed by the danger of unfair prejudice,” the decision states. “While another court might see it differently, this was a permissible and reasonable conclusion.”

Johnson, however, was still allowed to testify as to why he went to Myszkewicz's home and that he found what he was looking for, according to the decision.

Johnson’s lawyers argued in earlier court proceedings that not being able to say what he found might leave the jury wondering if he came up empty handed.

The dissent

The three dissenting justices were Patience Roggensack, Jill Karofsky and Annette Ziegler, who is the chief justice and who wrote the dissent filed with the decision.

Ziegler wrote of her concerns about the future implications of this ruling—that a “criminal invader” shot a homeowner and gets to claim he was justified because he was “afraid.”

“Every home invader should be afraid—afraid of detection, afraid of confrontation, afraid of being shot by the homeowner, afraid of the police, afraid of being convicted for the crime committed. But being afraid does not mean that the home invader can shoot first in ‘self-defense.’”

“The majority opinion unleashes this perfect defense on the innocent public at great cost,” the dissent continued. “This cannot be the law.”

Rather, the dissent states that the law stops anyone from trespassing into someone else’s home. Johnson is at fault for the situation he put himself in, the dissenting justices argue.

“He broke into another's home!” the dissent states.

Ziegler asked what this decision would mean for the “Castle Doctrine,” which provides a presumptive right for a homeowner to use deadly force on an invader.

“The majority green lights vigilantes to break into suspected criminals' homes and take the law into their own hands,” she wrote.

The dissent agreed with the majority on its decision to exclude Johnson’s testimony on what he found that night.

It is not immediately clear when Johnson will next appear in Walworth County Court.

This story was updated further at 12:55 p.m. Wednesday with more details from Wednesday's decision and the case.

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