Lawyer for Alan Johnson likely to be called as witness
By Vicky Wedig
Editor
The defense attorney for Alan M. Johnson was disqualified Friday from defending the accused murderer because the lawyer could be called as a witness in the case.
Judge Kristine Drettwan on Friday ruled in favor of a state prosecutor’s motion to disqualify attorney Scott K. McCarthy, of Milton, as Johnson’s legal counsel. The state argued that McCarthy could be called to testify in Johnson’s case because of evidence McCarthy procured and statements Johnson relayed to Assistant District Attorney Diane Donohoo that Johnson is believed to have made to him.
Johnson is charged with first-degree intentional homicide and burglary in the Oct. 25 shooting death of his brother-in-law Kenneth J. Myszkewicz, 43, in Myszkewicz’s Whitewater home.
Johnson admitting killing Myszkewicz, so the matter is not a “whodunit” case, court officials said Friday. But, information in emails from McCarthy to Donohoo could speak to Johnson’s level of responsibility and his intent and help ascertain “what really happened,” Drettwan said.
In a Dec. 2 email, McCarthy told Donohoo that Johnson was on the computer in Myszkewicz’s home looking for evidence of child pornography to “put the victim away” when Myszkewicz discovered Johnson in his home. In the email, McCarthy asserts Johnson did not go to the home with the intention of killing Myszkewicz.
Donohoo said those statements, presumably made by Johnson, differ from statements Johnson made to his parents and police, and McCarthy could be called to refute conflicting testimony Johnson might make at trial.
McCarthy argued that he didn’t specify in the email that the statements came from Johnson, and the state was drawing inferences.
Drettwan agreed with Donohoo and pointed out McCarthy used the words “Alan said” at one point in the email.
“(The) strong, logical inference is these are things only the defendant knew and only could have come from the defendant,” she said.
The state said McCarthy also could be called to testify regarding evidence that he turned over to police.
Officers who worked the crime scene testified at Friday’s motion hearing that McCarthy turned over a clear plastic tote that contained a garbage bag inside of which were gloves, shoes, sock liners, socks, pants and a sweatshirt that Johnson was wearing during the murder.
Whitewater Det. Lt. Neal Kolb testified that before McCarthy turned over the items, police did not know that gloves were involved in the crime and wanted to interview McCarthy about them but were told they could not.
Kolb said the items were not packaged in a manner that evidence should be. They were all put together in a plastic bag, which risks cross contamination of items of evidentiary value, he said.
McCarthy told police he examined the evidence before turning it over to police, and no one else inspected the items. But Kolb said police have no other witness to corroborate that statement.
Donohoo argued the state needs McCarthy’s testimony because prosecutors don’t know where McCarthy got the items or how he knows the items weren’t altered. The clothing items were sent to the state crime lab and contain Johnson’s DNA, Donohoo said.
“Clearly it is plain on its face that the evidence is relevant and material to this crime,” she said.
Drettwan reviewed evidence that showed McCarthy wrote a letter to law enforcement and the state on Dec. 14 advising them that he had come into possession of physical evidence and felt obligated to turn it over.
“There’s no indication in Attorney McCarthy’s letter that anyone else was present or handled this evidence, but the only one who has that information is McCarthy,” she said.
Drettwan said legitimate evidentiary concerns surround the evidence that only McCarthy has knowledge of: From where and whom was it obtained? When was it obtained? What were the circumstances surrounding the gathering of the evidence? How was it handled?
She said McCarthy acknowledges in one email to Donohoo that he can’t act as an advocate for the defendant if he’s likely to be a witness.
“I do find that attorney McCarthy is likely to be a necessary witness,” she said.
Drettwan said her decision to disqualify McCarthy is based on a “serious actual conflict of interest” and McCarthy’s likelihood to be a witness in the case. She said it does not speak to the qualification of McCarthy, whom she said is a knowledgeable and very competent attorney.
“I do find that is appropriate and the right thing to do under the law to disqualify Attorney McCarthy,” she said.
A status conference was set for March 16 in the case to determine whether Johnson has secured replacement counsel.
