JEFFERSONVILLE — The attorney representing a Jeffersonville man convicted of reckless homicide in 2014 planned to argue in court Thursday that the gun his client was accused of shooting was defected, but a call from the Clark County prosecutor changed his plans.
Jeremy Swank was charged with murder following a shooting incident that resulted in the death of his nephew, 20-year-old Michael Metcalf, in 2013. According to court records, Swank told police "he accidentally discharged the weapon multiple times" before he saw his nephew lying on the ground, bleeding. Swank dropped the gun, ran upstairs and had someone call 911 to falsely report a self-inflicted gunshot wound. Swank was later convicted and sentenced to eight years in the Indiana Department of Correction where he remains.
But in a petition for post-conviction relief filed in October, Swank's attorney, David Mosley, wrote that in July he came across a news article supporting his belief that the gun could have misfired. The article reported that gun manufacturer Forjas Taurus SA had agreed to a $39 million class action lawsuit in response to claims that the company's guns were improperly discharging. One of the models included in the lawsuit was the Taurus PT-145 Millenium, the same gun Swank is accused of using to shoot his nephew.
"If a gun has a defect that causes it to misfire when the trigger isn't pulled ... that would indicate it was clearly an accident and not an intentional firing," Mosley said, citing a YouTube video that shows a Taurus gun firing just by being shaken.
Then on Thursday morning, before a hearing on the matter was to take place in Clark County Circuit Court No. 1, Mosley got a call from Clark County Prosecutor Jeremy Mull.
"[He] indicated that family had contacted his office to let him know that the gun in question had been sold to a third party who had subsequently called back to the family and said that there was something wrong with the gun," Mosley said.
Mosley said he doesn't know the specifics as to what the third party claims is wrong with the gun, but that Mull's office will investigate the claim and try to locate the gun. For that reason, the post-conviction relief hearing was rescheduled for next month. The hearing could result in the conviction or sentencing being vacated. Mull did not want to comment on the case prior to the hearing.
"Let me just take my hat off to Jeremy Mull, that he told me about this," Mosley said. "He is participating in the search for truth and I have to respect that because we have an adversarial system ... but he is going to try to pursue and find out if there was something wrong with the gun. I think he wants to know it as much as we do."
Mosley recognized that the prosecutor's position that Swank couldn't have accidentally fired a gun multiple times still needs to be addressed, but said he thinks it's possible the gun repeatedly misfired. Mosley said Swank claims the gun "bump fired" in his hand. Mosley said the trajectory of the remaining shots show that the gun fired low to the ground, perhaps when it was dropped.
Leading up to the trial, Indiana State Police experts testified that the gun had been examined and it was determined there were no defects. Even in Mosley's independent investigation, he could not find an expert to support claims that the gun misfired. But Mosley pointed out that Swank was convicted of reckless homicide, not intentional homicide.
"So [there are] a lot of questions to sort out," he said.
Mosley said he doesn't file for post-conviction relief often and doesn't remember ever doing so in a major felony case. In Swank's case, it could take one or multiple hearings to resolve the matter. A hearing is scheduled for Jan. 7.