Prosecutorial misconduct added to motion

An addendum to a motion for a new trial in a case against Matthew Schwan was filed March 30. Schwan was found guilty on March 15 of aggravated homicide by vehicle, in the death of Reilly Schwan.

The addendum calls for a new trial because of prosecutorial misconduct. According to the document, during the trial the prosecutor was examining a witness and the witness was asked what the deceased might have said. The events counsel objected as hearsay, and the prosecutor said in a loud voice, “She is unavailable to testify because he killed her.”

At the next break, counsel for the defendant requested a meeting in chambers, where he moved for mistrial based on the prosecutor’s statement and there was discussion about a curative jury instruction which was not requested by defense counsel because it would bring more emphasis on the prosecutor’s statement.

According to the document, the chief of police testified about arriving on the scene of the incident and mentioned he spoke with a fireman. On cross-examination the chief was asked who the fireman was and said “Jerry Williams,” who was the prosecutor at trial. Because the jury knew the prosecutor was a witness to the accident and the one who filed charges, it gave more credibility to the statement by the prosecutor that “he killed her.”

Prior to trial counsel for the defendant had a conference with the judge and prosecutor regarding a conflict of interest on behalf of the prosecutor, because he was a potential witness. However, the court felt he was not needed as a witness.

A request for change of venue was previously filed with the court due to the witnesses and their relationship with people in the community, the large amount of posts on social media and newspaper coverage which would cause an issue with getting an impartial jury. That motion was denied.