The discovery and sanctions hearings related to the Barry Morphew murder trial will continue at 1:00 p.m. Tuesday, Dec. 14 in 11th District Court at 142 Crestone Ave. in Salida, presided over by District Judge Patrick Murphy. The hearing was necessitated because the Nov. 9 hearing ran much longer than anticipated, at which time the defense motions related to discovery and sanctions, including claims of unwarranted publicity during the discovery period, were not able to be completed.
At the same time, Judge Murphy extended additional motions hearings for Jan. 25, Feb.1 and Feb. 8. His pre-trial conference is scheduled for April 8 with jury selection beginning about a month earlier.
Chaffee County Judicial Facility at 142 Crestone in Salida is the home of the 11th District Court. Merrell Bergin photo
As of Nov. 9, the entire case file for Barry Morphew was made public. The files are available here:
Morphew was arrested on May 5, 2021, and has been charged with first-degree murder of his wife Suzanne Morphew, who disappeared on Mothers Day, May 10, 2020. Her body has not been found and she is presumed dead.
The trial is set for May 2022. During the four-hour-long Nov. 9 hearing, the defense lawyers referenced pretrial publicity and failure to adequately provide information that might have shown that someone other than Morphew was responsible for the disappearance and assumed murder of Morphew’s wife Suzanne. This evidence, they claim, wasn’t presented by the defense at pretrial hearings.
Representatives of the Denver law firm, Fisher & Byrialsen, have filed two lawsuits, 21CR85 and 21CR 78, against 26 individuals associated with the Chaffee Sheriff’s Department, the 11th Judicial District Attorney’s Office (which covers Chaffee, Park, Fremont, and Custer counties), the Colorado Bureau of Investigations, and the Federal Bureau of Investigations.
The defense lawyers Iris Eytan and Dru Nielsen were missing Ms. Nielsen, who was on a federal court case. There were new lawyers representing the prosecution; Robert Weiner and Holland Hobart.
The judge questioned why special agents for the Colorado Bureau of Investigation (CBI) and the Federal Bureau of Investigation (FBI) as well as former Deputy District Attorney Jeff Lindsey were being called saying, “Why are they being called as witnesses? I’m in the dark on this motion.”
Lindsey (who has taken a new job with another court district) had received a subpoena to testify related to alleged violation of the pretrial publicity order during the discovery phase, as well as the motions regarding the Chaffee County Sheriff’s office.
Defense Attorney Eaton noted that their request to speak with Lindsey, as well as the special agents, had to do with information that they say was known by the prosecution during the discovery phase, but was not presented or revealed at that time. Which meant that as defense they had no chance for an examination of the information. “Info has not been produced to us, then or during the discovery hearing,” said Eytan.
Suzanne Morphew went missing the afternoon of May 10, 2021. Photo provided by Chaffee County Sheriff’s Office.
The documents also show differences between the defense and the prosecution about DNA collected on the glovebox of Suzanne Morphew’s Range Rover. While highly technical, the prosecution says it’s only a partial match and inconclusive, while the defense says the DNA belongs to a sex offender who lives in Prescott, Arizona. The defense is accusing the prosecution of sitting on the information, and not following up on this potential DNA lead.
“We issued a subpoena to Commander Walker about discovery that should have come to us and didn’t … and we are concerned that discovery has been destroyed as a result of your allowing info in that wasn’t given to us in a timely way,” said Eytan. “… we don’t have reports, recordings of these witnesses, that is an issue during this discovery… Mr. Lindsey was the lead prosecutor under Miss [Linda] Stanley in the case…he got the written ruling regarding preserving emails and texts on this, but it appears that order of the court was not sent to the individuals involved. It appears that numerous oral statements have not been preserved.”
Judge Murphy denied the defense request to sequester the witnesses and pointed out that the new prosecution teams deserve time to get up to speed. “It sounds like their testimony MIGHT weave together, but mostly it’s separate actions. Also, as Mr. Hobart said at the beginning, he and Mr. Weiner are relative newcomers to this case.”
Prosecutor Hobart pointed out that “the restraining order is for any communications, this court has ordered and the rules state you don’t need to write anything down unless it relates to the restraining order….this is such a different turn from their other motions.”
“Ms. Eaton I’m curious about your response,” said Murphy. “Your motion was filed three months ago, and it was NOT heard for the reasons discussed in this motion. It doesn’t contain what you spoke of earlier – it’s a different issue. This is a surprise.”
“When we filed our motion we believed that everything the prosecution was telling us was true,” said Eytan, who said she believed that emails and information were not being preserved. “… in the meantime, they are dumping terabytes of info … this is a case of innocence … Mr. Morphew said all along ‘I didn’t cause this’.”
“The certificate said we gave discovery to defense … I object,” responded the prosecution. “We never perpetrated a fraud upon this court.”
“So your point is that discovery was produced late, or not complete, or the new material wasn’t highlighted .. .is that what we are addressing in today’s hearing?” asked Murphy, trying to clarify the concern.
“No, it’s their violation of the constitution,” she responded.
“So have we moved past the emails?” responded Murphy.
Eytan responded with a list of things she said defense still did not have (emails, text messages, lay witness statements, scans, the game camera footage of the Morphew property lab reports, etc.,) as well as a list of witnesses she still needs to hear from, which included: “Miss Duge, Miss Rogers, Mr.Lindsey, Commander Walker, Detective Burgess, Agent Cahill, and Agent Harris.”
The judge went on to quash the subpoena request regarding Mr. Lindsey, saying that “I’m going to deny the request … if the questions are in work product, he can object….let’s just get this on the record.”
For the remainder of the hearing, the defense called Agent Megan Duge to testify on DNA evidence, as well as notes made by Analyst Caitlin Rogers about what has been tested or not tested and what a partial from a keyboard search meant. A Zoom connection proved less than successful, so Lindsey may testify during the Dec. 14 session.
Agent Joe Cahill, confirmed that a detective from the Tempe, AZ Police Dept. had reached out to them about the Chaffee County Morphew case before they got a CBI report back, but that delays in getting info back is not uncommon.
Murphy reminded defense that “you’re trying to link this testimony to what is at hand which is a discovery violation.” Eaton responded that “… I’m establishing all the communications that we didn’t have with Agent Cahill.”
The judge asked whether that was in the communications log and how the defense might know which conversations were recorded or reported?
The prosecution pointed out that while the defense doesn’t like the judge’s order, “Your order said we didn’t have to write everything down. They are talking about exculpatory info [supporting] that Barry Morphew didn’t do anything to his wife.” He added, “She got that info before the last hearing and this court said fine.”
Murphy said he would apply Rule 16, which says that in this situation, there were a lot of discussions “that were more questions, hypotheticals, asking what did it mean when there was a match? One was more substantive; the Aug. 20 with Lindsey, Mark Cahill; they walked through a CODIS 1010 and the hierarchy of what a keyboard match was.”
“It probably would have helped if we had had that….. what does it mean if there was a CODIS match [CODIS is the acronym for the Combined DNA Index System] – when I made my ruling,” he continued. “I focused a lot on this that there was this CODIS match, the prosecution didn’t present much evidence to me that they didn’t do that. The fundamental thing is you are trying to say that every time there is a contact that a report needs to be written between law enforcement and this lab.”
Eytan attempted to respond with a lengthy answer and Murphy stopped her saying, “We’re not doing speeches,” but allowed her to get to her point; which was that defense believes there are meetings going on for which there are no notes.
The prosecution responded by saying, “They had the info, judge. If there hadn’t been this computer glitch they would have gotten this as well.”
Asked about text messages related to the investigation, Agent Cahill said he had found 89 text messages of his that the state could recover (Verizon was his provider), adding that he wasn’t aware that there was an order in place to preserve these communications during the early investigation.
Asked about the possible Tempe, AZ connection and whether reports were filed after an Oct. 2 and Oct. 6 conversation about DNA, the judge reminded the defense that “What we have bumped into is that the motion got filed in August and it was much more general than the topics today.” He indicated that if Eaton was able to determine which ones she didn’t get, that the prosecution would be asked to provide them.
Judge Murphy ordered the defense and prosecution teams to meet regarding the preparation of a more specific motion regarding what information the defense claims is missing.
Moving to a defense motion to hold Chaffee County and Sheriff John Speeze in contempt, he denied the motion procedurally.
Referencing the defense motion regarding pretrial publicity, he noted that “the court can enforce its own orders, it doesn’t always have to go through contempt. Then we have the issue of who prosecutes or hears the contempt – it’s a wheel within a wheel. If you refile it with an affidavit, the allegations in there are included in paragraph 2 – it’s just one sentence. I’d require a lot more detail in the motion to issue a contempt citation.”
Murphy reminded the courtroom that Rule 55 came into effect just as the case began. “If you haven’t read it – there is a presumption that court records are public … if you are filing something that you want protected, notify the clerk as to what needs to be protected/redacted. Once it is redacted, then it is released to the public. If you file something as suppressed, that means only the parties and court can see it. If you file something as suppressed, you have to file a separate redaction motion.”
Featured image: Chaffee County Judicial Facility in Salida. Merrell Bergin photo
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