Attorneys present their cases to Wisconsin Supreme Court justices during virtual arguments on Tuesday in the murder case of Alan Johnson. (Image via Courthouse News)

By Joe Kelly | Courthouse News

MADISON, Wis. (CN) — The Wisconsin Supreme Court heard debate over self-defense and use of force by homeowners and trespassers Tuesday in a case where an armed man killed his unarmed brother-in-law after being caught in his home in the middle of the night searching for evidence of child pornography.

Alan Johnson, the defendant in the case, entered the unlocked Whitewater home of his brother-in-law, referred to as K.M., in the middle of the night on Oct. 24, 2016.  

Johnson alleges he was a repeated victim of K.M.’s physical assaults, as were his wife and youngest sister, K.M.’s wife., and that K.M. once sexually assaulted him when he was a child. He also claims he found child pornography on his brother-in-law’s computer years earlier but was told by police that the evidence was stale and could not support charges.

Johnson took his father’s gun with him that night for protection. After about two and a half hours, and after Johnson had allegedly found child pornography on K.M.’s computer, K.M. discovered Johnson in his home, at which point Johnson says K.M. knew what Johnson had found and lunged to attack him. Johnson shot K.M. five times but claimed he does not remember what happened after K.M. lunged at him until he noticed blood on his clothes as he was driving home.

At trial, the circuit court declined to instruct the jury on perfect self-defense and lesser second-degree murder offenses for Johnson, who was convicted of first-degree reckless homicide and sentenced to 25 years of confinement and 10 years of extended supervision.

Johnson appealed, and the Wisconsin Court of Appeals agreed with him that the circuit court should have instructed the jury on perfect self-defense, also finding that the lower court should have provided instructions on second-degree murder charges and should not have excluded evidence of child pornography Johnson found on K.M.’s computer before killing him.

The appeals court reversed Johnson’s conviction and remanded for a new trial, at which point the state appealed to Wisconsin’s highest court for review.

Assistant Attorney General Timothy Barber said at the top of virtual arguments on Tuesday that the appeals court’s errors “permit a jury to condone vigilantism” and would allow Wisconsin citizens “to play a game of ‘to catch a criminal.’”

Barber said Johnson was not entitled to perfect self-defense protections because he could not prove K.M. acted unreasonably upon discovering Johnson in his home, and that Johnson’s five shots were unreasonable given the evidence, including that K.M. was unarmed.

Some justices pointed out that in cases of shootings, including those involving law enforcement, it’s not uncommon for multiple bullets to be discharged during a struggle and wondered whether that was adequate to show Johnson’s actions were unreasonable.

Justice Jill Karofsky asked Barber how K.M.’s alleged history of violence factored into his analysis of the case, given that Johnson claims he brought the gun to protect himself from K.M. Barber said that K.M.’s history is not enough to clear Johnson because “the implication of that is that the jury can excuse the killing of someone who is ‘bad.’”

Catherine White, Johnson’s counsel with Madison firm Hurley Burish, argued that the alleged history of abuse coupled with the fact that Johnson believed K.M. knew he had found child pornography Johnson planned to use against him support Johnson’s self-defense argument and his motivation for being in K.M.’s home in the first place.

Justice Annette Ziegler pushed White to consider whether a “new brand of vigilante justice” would be encouraged by ruling in favor of someone who entered another person’s home without consent in search of evidence of a crime law enforcement cannot obtain for whatever reason.

“Doesn’t that argument kind of stand the castle doctrine on its head a little bit?” Ziegler asked, referencing a Wisconsin statute that gives a homeowner legal cover for use of lethal force in defending against unlawful and forcible entry into their home, car or place of business.

White responded that though police previously told Johnson the prior evidence he brought was not enough, they told him to come back if he found more, and whether Johnson’s actions were reasonable should be left to a jury instructed on perfect self-defense to determine.

Ziegler and Chief Justice Patience Roggensack, another member of the court’s conservative majority, resisted the idea that a homeowner would have such a limited right to attack an intruder in their home in the middle of the night, even if they eventually realize the intruder is someone they know.

“What bothers me is that part of your argument requires that K.M. was unlawfully interfering with Johnson,” Roggensack said. “But given the non-consensual entry into K.M.’s home in the middle of the night, how can his interference be unlawful?”

Near the end of arguments, Justice Brian Hagedorn expressed skepticism that the high court should review the computer evidence de novo – as if it were considering the issue for the first time – since that would unnecessarily turn an evidentiary question into a constitutional question on the right of a defendant to bring a defense.

White argued that Johnson said there was child pornography on K.M.’s computer but was never able to provide proof of that, which “is not a small piece of evidence, this goes directly to the defendant’s credibility” and also speaks to whether his belief of being attacked by K.M. was reasonable.

In rebuttal, Barber argued that one cannot invade someone’s house while armed and claim it was okay because the homeowner is a bad person and that it is “objectively unreasonable to think the homeowner cannot do something” when confronted with an armed intruder, regardless of why the intruder was there.