In a 20-page order, the judge in the Barry Morphew case gave a scathing rebuke to the prosecution Friday for what he called a "sloppy" and "reckless" pattern of discovery violations so brazen, the judge maintained an earlier order excluding 14 of the state's 16 experts.
Ousted from testifying as experts are witnesses who were going to give their opinions as to cellphone records, DNA, and telematics, which is vehicle movement. Those witnesses could still testify as experts during rebuttal.
Despite the intense scolding, 11th Judicial District Judge Ramsey Lama ordered that the trial investigating the two-year disappearance of 49-year-old Suzanne Morphew will happen as scheduled. Jury selection begins in Cañon City April 28.
"This is one of the most severe admonishments I've ever seen, especially in a high-profile murder case," said Denver defense attorney Eric Faddis. Faddis, a former Arapahoe County felony deputy district attorney, said the rulings have handcuffed the prosecution and reshaped the entire case.
Deputy District Attorney Grant Grosgebauer filed a motion April 1 asking the judge to reconsider allowing the crucial expert testimony. In a pleading obtained by The Gazette, the prosecution told the judge that if he doesn't reconsider and allow this testimony, their case will be so crippled, the sanctions would be "... tantamount to dismissal, with the defendant suffering a complete windfall."
The 11th Judicial District prosecutorial team has been scrambling to save a case hampered by allegations of prosecutorial misconduct and disagreements between some investigators over whether Morphew’s arrest in May 2021 was premature. During a motions hearing last month, Colorado Bureau of Investigation Director John Camper revealed during testimony that he called Chaffee County Sheriff John Spezze to tell him to hold off on arresting Morphew until more evidence collection could be done. Other investigators, though, representing the FBI, Chaffee County Sheriff's Office and the 12th Judicial District, disagreed.
Barry Morphew, 54, is accused of killing his wife, Suzanne Morphew, sometime between May 9, 2020, and the early morning of May 10, Mother's Day.
Barry Morphew told investigators that he last saw his wife at 5 a.m. on May 10, sleeping, as he got ready for a landscaping job in Broomfield, a three-hour drive from the family’s Maysville home 17 miles west of Salida. Her body has not been found.
“The case is on shaky ground but could be salvaged if they find Suzanne’s body. Not only would that prove that she died and perhaps how, but it could lend crucial DNA material that the state could then use in testing other physical evidence,” Faddis said.
Prosecutors say the last time Suzanne Morphew, 49, was known to be alive was just after 2 p.m. May 9, 2020, when she sent a "proof of life" photo of herself to her lover while she was sunbathing in her backyard. Her husband of 25 years arrived home from work a half-hour later.
According to investigators, there was little communication from Suzanne Morphew's phone after that except for an outgoing call at 2:53 a.m. the next morning and a mysterious ping near Poncha Springs at 4:23 a.m.
Former Boulder Deputy DA Ryan Brackley told The Denver Gazette that it's impossible to know whether Suzanne Morphew was the person behind those pings, and the fact that the mother of two adult children was never heard from after 2:07 p.m. Saturday is a major indication of foul play.
"In this day and age of technology electronics and social media, people don't fall off the face of the earth," said Brackley. If Lama's ruling stands, Brackley said the prosecution will be left with a circumstantial case. "Whether they have enough evidence will be up to the jury," he said.
Lama struck the witnesses in part because the prosecution produced some of their biographical information a day late. There have been tense moments in the courtroom as Lama has given seething verbal orders to a prosecution the defense says has mismanaged the case and missed deadlines.
Barry Morphew’s attorneys have expressed frustration in court over discovery violations they say have become a pattern. In a motion filed March 2, Eytan asked for sanctions against the prosecution for withholding computer data from Barry Morphew’s Range Rover, which was in the garage the day his wife was reported missing.
“This misconduct is non-stop. There is never an endpoint. The enormous resources it takes to investigate the prosecution’s discovery violations is fundamentally unfair and outrageous,” Eytan wrote. Since then, the defense has received that information.
According to recent court filings, the prosecution will call 173 good faith witnesses, but that number could change. Expected to take the stand for the prosecution are members of Suzanne Morphew’s family, several close friends and neighbors, and several of Barry Morphew’s employees. It’s unknown how many witnesses the defense will call.
The fate of one more expert witness is still uncertain for the prosecution: a forensic nurse who would testify about injuries Barry Morphew had on his upper arms and hands shortly after his wife disappeared. Lama has yet to decide whether or not to admit her expert testimony.
Barry Morphew has maintained his innocence from the beginning, having given at least 30 interviews with law enforcement in the year before his arrest May 5. He has been out on bond since September and is now allowed to visit his two adult daughters, who live in Gunnison.
Iris Eytan, Barry Morphew’s lead attorney, has said in court that she believes the case is not a homicide, but a missing person case. She has suggested that Suzanne Morphew may have run away or was kidnapped. Early on, Barry Morphew alluded to the possibility that his wife was killed by a mountain lion.
But prosecutors believe Barry Morphew killed his wife because she was preparing to leave him. They found no blood or evidence of a struggle at the couple's home in the mountains west of Salida. Her bicycle was found in a ravine near the house and her helmet was found a few days later a mile away. There was unidentified DNA on the helmet, bike handlebars and bike grips that does not match Barry Morphew, but his DNA was found on the bike itself.
Prosecutors do not believe that DNA is the smoking gun in this case. Instead, they were leaning heavily on cellphone evidence, Barry Morphew's truck data and GPS experts. In the motion filed earlier this month, prosecutors told Lama that exclusions "damage the case in a profound way. In a no-body case such as this, the timing surrounding the victim's disappearance is everything."
In addition to this latest setback, in February, Lama excluded from the trial any abuse allegations leveled against Barry Morphew related to the couple's relationship, including text messages from Suzanne Morphew’s phone to her best friend, Sheila Oliver, describing the Morphews' spiraling marriage.
Though the ruling drew anger from domestic abuse advocates, Faddis said it was the right call because the text messages are considered inadmissible hearsay.
"The friend who received the texts can testify, but I doubt the judge will let her testify as to the actual content of those texts from Suzanne, but rather just her impressions of the relationship based on her own observations," Faddis said.
On Tuesday, prosecutor Mark Hurlbert filed a motion asking Lama to exclude any mention of mixed DNA profiles which were found on the glovebox of the Range Rover and not to allow testimony about alternate suspects during trial. He also asked the court not to go into inappropriate character evidence of Suzanne Morphew, including any mention of alleged prescription drugs she took because this would be based entirely on speculation. Judge Lama has yet to rule on these issues.
There is a chance the prosecution could appeal the judge's ruling excluding expert witness testimony. The trial is is expected to last as long as five weeks. Barry Morphew’s next pretrial hearing is scheduled for April 19 in Cañon City.