On Friday afternoon, Sept. 17, a series of decisions by District 11 Judge Patrick Murphy set the course of the murder trial for Barry Morphew, in the disappearance and presumed murder of his wife Suzanne Morphew.
The afternoon included the pre-trial final arguments by the prosecutor and the defense, as well as the judge’s ruling regarding “proof evident presumption great”, a legal term that requires the judge to rule on whether there is enough evidence to presume the defendant is guilty. Murphy established that a trial will be held, and set a $500,000 bail for Morphew, who will be required to remain in Chaffee County and wear an ankle monitor.
Barry Morphew was booked into the Chaffee County Jail on three charges, including First Degree Homicide. Courtesy photo.
The judge explained to the court that the hearing was what is known as a probable cause hearing and that he is aware that the case has drawn national attention. “The defense has argued the case cannot be bound over for trial because there is no body … based on the idea that if a body is not presented, then there can be no crime.”
“There is no Colorado case law on this,” he went on to say. “I have to resolve all inferences in favor of the people. Based on her disappearance; that is that Suzanne Morphew has been murdered by her husband Barry Morphew.”
“This is the inference put forward by the DA’s office and I must give preference to this. Second, there is no recovered body. Third, Colorado courts have rejected the corpus delicti argument in favor of probable cause … in that case … the court said the confession itself was the reliable evidence … so the body didn’t have to be shown.”
Probable Cause Established
After listening to the legal arguments, Murphy said he found there was enough evidence for the case to go to a jury trial. “I believe I can find probable cause in a homicide case, even in this case, without a body … that a murder has been committed and probable cause that the defendant has been the one to do it.”
He found probable cause for Charge 1, first-degree murder, and Charge 2, tampering with a deceased body.
Upon the request of the defense attorneys, he set the four-week trial date to run from May 3, through June 1, 2022, confirming this long wait time with Morphew, who has a right to a speedy trial (normally considered to be within a six-month timeframe).
Morphew had quietly entered a plea of “not guilty” prior to the start of the proceedings.
The Judge reminded the court that he applied the lowest standard of proof in the U.S. Court system. “There is a reasonable belief that the defendant may have committed the crimes charged. I must draw all reasonable inferences in favor of the prosecution. The evidence to support a conviction of the crime is not necessary at this stage of the hearings.” He reminded the court that evidence that wouldn’t normally be allowed, may be allowed at a preliminary hearing such as the one that was concluding that day.
In his detailed explanation of his finding of probable cause Judge Murphy pointed out that while there is no body, the facts appear to point that Suzanne Murphew is deceased, not missing or hiding:
- No one has heard or seen her since May 9, 2020, despite huge media coverage…she has not been sighted or found, and she used her phone a lot.
- Her camelback and sunglasses were in her car and she always rode her bike with them.
- She was a stay-at-home mother to raise her kids and had no outside source of income from which she could hide money to use it to disappear.
- She had received an inheritance, but it was used to buy the home. (Morphew had said that “he was Suzanne’s ATM” indicating he was in control of the money.)
- She always had her bible, her journal, and the book “The Courage to Change” together. But her journal was missing and evidence of the journal was found burned in the fireplace.
- Her purse, driver’s license, credit cards, and cash were left.
- Most important, added Murphy, she was a dedicated and caring mother. “This is not in dispute … she said ‘Once Macy is gone – I won’t be able to do it’…. it would make little sense that she would absent herself from her kids’ lives, or of the rest of her family or friends.”
A cap of a tranquilizer needle was found in the home’s dryer along with Morphew’s clothes and Suzanne’s phone’s GPS on Saturday afternoon around the time that Barry Morphew returned home, showed her circling the home’s yard in a manner similar to the behavior of large wildlife that have been tranquilized, just after her last known phone contact.
Murphey reiterated a few key facts about Barry Morphew’s behavior. Among them:
- Mr. Morphew arrived home at 2:44 p.m. on Saturday, May 9. Three minutes later his phone is put in airplane mode until 10:17 p.m. “That is 7.5 hours – that is ample time to dispose of Suzanne’s body,” said Murphy.
- On Sunday, May 10, Morphew was up and doing something pre-dawn, GPS tracking showed that included driving to the areas where Suzanne’s bike and bike helmet were found later that day. In fact, he made a left turn on CR 225, which he claimed was due to following a bull elk to see where the antlers dropped. But the Chaffee Sheriff’s Dept. found that at the time of day when he left it was pitch dark, and elk shed their antlers long before May.
- Morphew then drove to Broomfield and made at least five stops that he said were stops to discard trash, but he didn’t tell law enforcement about the stops when questioned, part of a history of changing his story as time went on.
The Meaning of “proof evident presumption great”
Courtesy photo of Suzanne Morphew.
While the court applied the lowest standard of proof to proceed with the trial, a legal term with a weighty technical meaning became extremely important to the second portion of the hearing; “proof evident presumption great”.
In Colorado, a defendant has an absolute right to bail except in prosecutions where the proof is evident or presumption of guilt is great. But unlike a hearing, the probable cause hearing there is no presumption in favor of the prosecution – the weight given to evidence or witnesses is solely at the discretion of the court and impacts whether bail will be considered.
So what does that term actually mean? The standard of proof for “proof evident” is greater than probable cause, but less than what is required for a conviction. “It is more than reasonable to believe that the defendant may have committed the crime but less than the proof necessary to convict in a court trial,” explained Murphy. “This is the same standard that courts use in Colorado to terminate parental rights.”
Citing court cases for decisions related to proof evident, he explained, “bail shall be denied when the circumstances disclosed indicate a fair likelihood that the defendant would be convicted at a trial with the highest standard – proof beyond a reasonable doubt … I find that the answer to that question is no. Is it possible that he would be convicted? Yes. But is it likely that he would be convicted? I find no.”
He laid out the prosecution evidence again, (no direct evidence – no one saw him murder her, no one heard any disturbance, he hasn’t admitted anything) he also noted that the home surveillance was disabled. The cameras were off. The DVR hasn’t been found. There is no forensic evidence, no blood in the house, garage, property, or in his truck, in his bobcat, or at the hotel.
Of the three possible scenarios, the judge said that it was possible that either Morphew murdered her and disposed of the body, or that someone unknown took Suzanne and murdered her. “I think it is unlikely that she intentionally disappeared.”
He pointed out that “I find the evidence and presence of unknown DNA in the glove box of her car, and that this person has committed other sexual assaults to be important.” He noted that the DNA found is linked to three other sexual assaults; two in Arizona and one in Chicago.
“This is particularly significant – it’ doesn’t prove that he is innocent, or that someone else did it. Therefore: “proof is not evident, nor is the presumption great. Because I have found the prosecution has not met their burden, the court is obligated by the Colorado Constitution to set bail.”
The prosecution asked for a $10 million bail, and the defense asked for bail to be set at $25,000. The judge settled on $500 thousand bail, with the surrender of passport and firearms, no contact with a list of witnesses in the case, and Morphew to wear an ankle monitor. Bail paperwork will be processed, Monday, Sept. 20.
The defense argued for him to be allowed to live in Gunnison near one of his daughters. ” He can’t live in Chaffee County. He’s a public spectacle living here, he probably can’t live a normal life. He has just been charged. He is presumed innocent.”
The judge denied that, saying Morphew is to reside in Chaffee County while awaiting trial and not travel outside the county except for day trips to connect with his Denver-based attorneys adding, “The likely sentence, given the nature of the charge if convicted — the sentence will be life without parole.”
In a final move, the defense asked Judge Murphey to seal the prosecutor’s affidavit and to place a gag order on the prosecution, saying that District Attorney’s office has been talking with the media and giving interviews in a manner that could prejudice the case.
Murphy set a 1:30 p.m.Nov. 9 hearing regarding the last request and noted that the affidavit with a few personal privacy portions redacted, would be posted on the Colorado judicial court website by Monday, Sept. 20.
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