A Whitewater man convicted of killing his brother-in-law is asking an appeals court for a new trial, saying a judge’s decision wrongly forced him to testify and limited his self-defense claim.
Lawyers representing Alan M. Johnson, 34, on Monday filed their request in the District 2 Court of Appeals to reverse rulings from Walworth County Judge Kristine Drettwan.
A jury in November 2017 convicted Johnson of first-degree reckless homicide for using his father’s .40-caliber Smith & Wesson pistol to fatally shoot Ken Myszkewicz, 43, on Oct. 25, 2016, in Myszkewicz’s Whitewater home.
Johnson maintains he went to find fresh evidence of child porn on Myszkewicz’s computer—consistent with files he had seen on the computer years earlier.
The jury declined to convict Johnson of first- or second-degree intentional homicide, which would have required the jury to believe Johnson intended to kill his brother-in-law. Instead, they decided he acted recklessly with utter disregard for human life.
Drettwan in January 2018 sentenced Johnson to 25 years in prison and 10 years of extended supervision. She called the decision “heart-wrenching.”
The case, however, was not really about who shot Myszkewicz—Johnson told police, “Arrest me. I killed him,” according to court documents.
It concerned Johnson and Myszkewicz’s history leading up to the night when Johnson was in a small computer room in the Myszkewicz home at 911 Peck Street.
Johnson’s state of mind during that night was affected by Myszkewicz having sexually, physically and verbally abused Johnson years before, according to the appeal.
The court ruled before his trial that the only way Johnson could introduce evidence for his claim of self-defense was if he testified—which he has a constitutional right not to do.
Important evidence, according to the appeal, was “controlled too tightly.”
“No Wisconsin case has ever required the defendant to testify before offering evidence in support of his defense, including self-defense,” the appeal states.
The court also ruled Johnson would not be allowed to tell the jury what he found the night of the shooting on Myszkewicz’s computer—more than 5,000 photos of neighborhood girls put into categories such as “blondie,” according to the appeal.
The court ruled it was not relevant and would be misleading, but the appeal says it gives Johnson more credibility for why he showed up at the house.
The judge wrongly restricted the presentation of evidence that would have shown Johnson’s state of mind when he entered the home and when Myszkewicz attacked him in the computer room, the appeal states.
“A reasonable fact-finder could have determined that Johnson reasonably believed that he had to use lethal force to protect himself from (Myszkewicz),” the appeal states.
The judge’s rulings meant the jury did not get an adequate definition of self-defense, according to the appeal. The fact that the jury acquitted Johnson on a charge of armed burglary shows the jury accepted that Johnson did not enter the home to steal or kill.
Overall, the court’s restrictions changed how the jury took in information, which put Johnson “at a significant and unfair disadvantage,” according to the appeal.
“The Circuit Court’s approach was akin to hobbling someone at the outset of a foot race,” the appeal states. “One should not claim no harm as long as the runner finishes the race. The hobbling prevented the racer from having an equal chance of winning (or due process in an adversary system), which is the whole point.”