Defense counsel’s move to prosecutor’s side doesn’t require special prosecutor

The Indiana Court of Appeals upheld a man’s 60-year sentence for shooting and killing his girlfriend after an argument, rejecting his claim that a special prosecutor should have been appointed in his case after his defense counsel took a job with the prosecutor’s office.

Michael Dean represented Jason Swallow from the time he was charged in the death of Elisha Powell in April 2012 until June of 2013, when Dean became employed with the Wayne County prosecutor’s office. Swallow shot Powell in the head and called 9-1-1 after he disposed of the gun at his mother’s house. He first told police that he was a drug dealer and someone mad at him knew where he lived and could have broken into the house while he was gone and killed Powell.

After police found the murder weapon, Swallow told police the gun went off accidently when he picked it up. Testimony at his trial by experts disputed this claim based on Powell’s injuries and the safeties on the gun. A jury found him guilty and he was sentenced to 60 years.

Although Dean represented Swallow for more than one year, his knowledge of the case does not disqualify the entire prosecutor’s office, Judge Melissa May wrote in Jason D. Swallow v. State of Indiana, 89A01-1401-CR-24. Dean testified that he was not allowed to have contact with Swallow’s file once he joined the prosecutor’s office and none of the prosecutors discussed the case with him.

The judges also upheld the admission of Swallow’s false claim that he was a drug dealer and that was a reason for Powell’s murder. They agreed with the trial court’s finding that the statements were inextricably intertwined with Swallow’s attempt to mislead the police about the crime and thus were relevant.

There is sufficient evidence to support the conviction and his sentence is appropriate in light of the nature of the offense, the COA held.