Appeals court says claim of self-defense should have been allowed
By Ed Nadolski
Editor in Chief
A man convicted of killing his brother-in-law in 2016 in Whitewater has been granted a new trial after an appeals court ruled the judge in the case erred in failing to instruct the jury on self-defense and in preventing the defendant from telling a jury he found child pornography on the victim’s computer on the night of the shooting.
A three-judge panel on the Wisconsin District II Court of Appeals on July 8 reversed the decision in the trial presided by Walworth County Circuit Judge Kristine Drettwan and remanded the case back to circuit court.
Alan Johnson, 35, was convicted of shooting Ken Myskewicz, who was 43, five times and killing him in his Whitewater home after Myskewicz discovered Johnson on his computer at about 2 a.m. Oct. 25, 2016.
Johnson testified that Myskewicz, who was unarmed, attacked him before he fired, although he had no recollection of pulling the trigger.
Although he was charged with first-degree homicide, the jury convicted Johnson of first-degree reckless homicide, which indicates the jury believed Johnson’s reckless behavior resulted in Myskewicz’s death but not that Johnson intended to kill him.
Drettwan sentenced Johnson to 25 years in prison and 10 years extended supervision.
Searching for evidence
According to trial testimony, Johnson snuck into the Myskewicz’s home the night of Ken Myskewicz’s death to search for evidence of child pornography on Myskewicz’s computer. When Myskewicz entered the small den where Johnson was searching his computer in the middle of the night, a struggle ensued and Johnson shot and killed Myskewicz with the service pistol he had taken from his father, former Racine County Sheriff Eric Johnson.
Johnson was described during the trial as intelligent, gentle, kind, giving, patient, a caretaker, a teacher and a motivator. He had no prior criminal record, no history of drug or alcohol use and a college education.
In statements to police and during the trial Johnson said he was attempting to get Myskewicz arrested for possessing child porn. Johnson, who testified Myskewicz physically abused him and once sexually assaulted him when he was younger, said he had found child porn on Myskewicz’s computer years earlier, but was told by police the evidence was “stale” and they would need recent proof to act.
Appeals court decision
The Court of Appeals, in it’s written decision, ruled the jury in the case should have been given the opportunity to consider Johnson’s claim of self-defense.
Johnson contends that he found child porn on Myskewicz’s computer the night he shot him, and that Myskewicz knew that “I had the child porn” and knew that “he was going to prison” when he attacked Johnson.
During the trial, Johnson’s attorney asked Drettwan if Johnson had met his burden of proof for self-defense and was told that he had, according to the appeals court decision. Despite that indication, Drettwan changed course and “at the close of evidence refused to instruct the jury on perfect self-defense,” the ruling states.
The appeals court, however, wrote that the jury – not Drettwan – should have made the decision as to whether Johnson’s claim of self-defense was a reasonable factor in the shooting. They could have also opted to bring in a medical expert witness to talk through the incident to see if it is feasible by examining the body and circumstances.
“The problem lies in the very fact that it was the circuit court, rather than the jury, that weighed the evidence and resolved the inferences needed to reach that conclusion,” the appeals panel wrote.
The panel also ruled the jury should have been instructed on its option to convict Johnson of the lesser charge of second-degree reckless homicide.
Child porn also a factor
Addressing the child pornography allegedly found on Myskewicz’s computer the night of his death, the appeals court ruled Johnson should have been allowed to present the evidence at trial, as it would have been relevant to Myskewicz’s state of mind when he attacked Johnson.
Myskewicz “knew if Johnson reported what he had found to police that he was facing multiple charges for child pornography and a mandatory prison sentence,” the appeals panel wrote.
The evidence was “highly relevant” and would have likely supported Johnson’s claim of self-defense in the eyes of the jury, the panel concluded.
A new trial will open another painful chapter for the families involved in the case.
During the sentencing hearing in 2018, Drettwan said, “I see a family divided across the aisle. This is a heart-wrenching and incredibly difficult decision for this court to make.”
