LYNNWOOD — Snohomish County prosecutors are taking an attempted murder case to the state Supreme Court.
A local jury in 2016 found David Morgan guilty of attempted first-degree murder, assault and arson in an attack on his ex-wife in Lynnwood.
This past May, the state Court of Appeals overturned the conviction. It ruled that Lynnwood police improperly seized evidence from Morgan’s hospital room. The evidence shouldn’t have been presented to jurors, the court found.
Prosecutors disagree. Oral arguments are scheduled for Jan. 17.
Morgan, 59, is serving a 21-year sentence at the Washington State Penitentiary in Walla Walla. He has maintained that he is innocent and that his civil rights were repeatedly violated.
Prosecutors allege that Morgan fractured the woman’s skull and set the house on fire.
The legal dispute now revolves around plastic bags of clothing that were collected at the hospital while Morgan was being treated for smoke inhalation after the fire. Blood later was found inside the bags.
Police say that at the time, they were worried the fabric might be contaminated with gasoline, a fluid associated with arson that is known to dissipate quickly.
Prosecutors argued there were pressing circumstances for search and seizure, and say the items were in plain view.
The Snohomish County trial judge disagreed with the plain-view argument but found there were exigent circumstances and allowed the evidence to be brought out at trial.
The appeals court disagreed with the county judge’s decision and said the clothing should have been excluded from exhibits. The ruling noted that the officer who took the clothes did not report smelling the gasoline himself to prompt the search.
In the recent petition to the state Supreme Court, Snohomish County deputy prosecutor Seth Fine wrote, “The only effective way to protect the evidentiary value of the clothing was to seize it as soon as possible.”
Morgan’s attorney, Kathleen Shea with the Washington Appellate Project, is asking the court to deny the petition. She argues that revisiting the matter also reopens questions about how police and prosecutors conducted themselves.
“The state’s petition ignores the facts of Mr. Morgan’s case and provides no valid basis for review,” Shea wrote.
That includes the issues that led to Morgan’s first trial ending in a mistrial, she said. He was convicted in the second trial.
The prosecutors’ petition was filed in June. Additional briefs were filed earlier this month.