By Lynn Binnie
Whitewater Banner staff
The District 2 Court of Appeals on July 8 ordered a new trial for Alan M. Johnson, 35, who was convicted by a jury in November, 2017 of first-degree reckless homicide in the killing of his brother-in-law, Ken Myszkewicz, on October 25, 2016 in Myszkewicz’s home at 911 Peck Street. Johnson had entered the home by an unlocked door around midnight to search for child pornography on Myszkewicz’s computer. Years earlier he had made a police report with that allegation, but police indicated that the alleged evidence was not sufficiently current. After spending some two hours on the computer, Johnson was confronted by Myszkewicz, age 43. A struggle ensued, and ultimately the trespasser shot the homeowner five times.
Walworth County Judge Kristine Drettwan in January, 2018 sentenced Johnson to 25 years in prison and 10 years of extended supervision. Lawyers representing Johnson alleged in a May, 2019 filing that Drettwan erred in forcing him to testify and limiting his self-defense claim.
The Court of Appeals found that the circuit court erred in denying Johnson’s request to instruct the jury on “perfect self-defense” and in not offering the jury the option of second-degree reckless homicide. The appeals court also found that Drettwan should have allowed into evidence that child pornography was found on Myszkewicz’s computer, which if proven could have resulted in a prison sentence for Myszkewicz. It was the appelate court’s position that the jury should have been given the opportunity to decide whether “Johnson reasonably believed that K.M. was unlawfully interfering with his person, that he used such force as he reasonably believed he had exhausted every other reasonable means to escape from or to otherwise avoid death or great bodily harm at the hands of K.M.” The “unlawfully interfering” reference was to the possibility that Myszkewicz “wanted to prevent Johnson from reporting his ongoing criminal activity of possession of child pornography.”
Judge Paul Reilly wrote the decision, joined by judges Lisa Neubauer and Jeffrey Davis.
For an article in the Milwaukee Journal Sentinel click here.
For the 28-page decision click here.