EVERETT — A Snohomish County Superior Court judge declared a mistrial Monday in the case of a Lynnwood man accused of trying to kill his ex-wife and setting his house on fire to cover up the attack.
David Morgan’s defense attorneys moved for a mistrial after a fire investigator testified Monday afternoon that he believed the 2014 house fire was intentionally set.
Testimony began Wednesday in the trial.
Public defender Donald Wackerman successfully argued that prosecutors never disclosed that fire investigator Mike Makela had concluded that the blaze was an arson. The defense had been told that fire investigators would only go so far as to say that they couldn’t rule out arson and hadn’t found an accidental cause.
Makela’s testimony went a step further Monday while being questioned by Snohomish County deputy prosecutor Paul Stern.
Prosecutors knew that was Makela’s opinion as early as August but didn’t tell the defense, Judge Joseph Wilson said. Failure to disclose that information “is a violation of the court’s orders and the defendant’s rights,” the judge said. Makela’s testimony is significant and prejudicial, Wilson said.
“I don’t believe the bell can be unrung,” he said.
Prosecutors plan to retry the case. Morgan is charged with attempted first-degree murder, arson and assault.
Wackerman, however, said he plans to ask Wilson to dismiss the charges based on prosecutorial misconduct. He said Monday that prosecutors violated the judge’s pre-trial orders to disclose their expert witnesses’ expected testimony. They had told the defense that Makela’s testimony would be in keeping with fire investigator Ed Hardesty’s findings, Wackerman said. Hardesty testified that he couldn’t rule out arson.
The defense’s motion is expected to be heard March 10.
Morgan’s ex-wife Brenda Welch had been expected to take the stand Monday.
Firefighters found Welch unconscious in Morgan’s garage on Nov. 16, 2014. She suffered burns to her neck and chest. She also had deep gashes to her head, a fractured skull and a broken nose.
Jurors heard that Welch smelled strongly of gasoline when she was rescued from the garage.
Prosecutors allege that Morgan was unhappy paying monthly child support and didn’t want to hand over any more of his retirement to his ex-wife. They alleged that he planned the attack.
Welch had gone to Morgan’s house to pick up their daughter, but the girl wasn’t there. Morgan had dropped her off at his mother’s house. Prosecutors also allege that his car was packed with family photographs, keepsakes and income tax returns.
Morgan, 56, told detectives that he fell asleep in front of the television that evening and woke when someone struck him on the head. He next remembered seeing his ex-wife on fire downstairs. He told police he tried to pull off her burning sweater. He said he crawled out of the house and thought Welch was behind him.