Colorado prosecutors on Tuesday moved to dismiss a murder case against Barry Morphew, the husband whose wife Suzanne Morphew disappeared during a bicycle ride on Mother’s Day in May 2020 and has never been seen or heard from since. That’s according to a court document obtained by Law&Crime.
“The People, by and through Linda Stanley, District Attorney for the 11th Judicial District, hereby move this Court to dismiss the charges against the Defendant in 22CR47 without prejudice,” an 11-page motion filed Tuesday morning indicates.
Dismissal without prejudice means prosecutors can — if they so choose — resurrect the case in the future.
As expected, Judge Ramsey Lama promptly dismissed the case.
Barry Morphew is a free man. Ankle monitor being taken off and $500,000 bond revoked.
His daughters spoke in court saying their dad is innocent. Judge Ramsey Lama granted pros request for dismissal without prejudice. “The investigation will continue.” pic.twitter.com/ReWq2jHKs1
— Carol McKinley (@CarolAMcKinley) April 19, 2022
— Jack Heeke KKTV (@heekejack) April 19, 2022
The move by the state came just nine days before jury selection was scheduled to begin on April 28.
Judge Patrick Murphy found probable cause to move the case forward against Morphew as of Sept. 17, 2021. However, Judge Lama, recently slammed the prosecution for an “obvious and egregious violation” of one discovery protocol — and other lesser violations — and limited the state’s ability to present evidence at the upcoming trial.
The most serious violation, Judge Lama wrote recently, surrounded the state’s lack of complete candor regarding a CODIS match to a possible unknown suspect’s DNA. CODIS is a federal database that contains DNA evidence connected to criminal activity.
The Colorado Bureau of Investigation (CBI) found what Judge Lama referred to as “unknown male DNA was found on various items of the crime scene: the interior cushion of the bike helmet, Mrs. Morphew’s bike, the glovebox and back seat of Mrs. Morphew’s Range Rover.”
“Mr. Morphew, along with other investigative personnel working the scene, were excluded as the source of the sample,” the judge continued. Rather, “the unknown male DNA partially matched DNA found in three out-of-state unsolved sexual assault investigations: Tempe, Phoenix, and Chicago.”
Judge Lama allowed the case to move forward but curtailed the amount of evidence the state could present at trial, Law&Crime noted in an April 12, 2022 report.
Prosecutors on Tuesday scuttled the case via a motion that at times read like a press release:
Throughout the pendency of this case, the People and law enforcement have been unrelenting in our search for Ms. Morphew. For some time, a single location has been the target of ongoing investigation. For the reasons expressed below, the People have a good faith reason to believe further investigation into this matter is essential to answering the most consequential question presented by this case. As this search cannot be accomplished in the coming weeks due to weather and snowpack conditions, the People respectfully ask this Court to dismiss the current indictment against the Defendant without prejudice.
The factual assertions by prosecutors (who, it should be noted, have been chided by a judge for botching matters in the past) continued later on in the motion. Notably, authorities claimed that they are “close” to finding Suzanne Morphew’s body:
As an offer of proof, the People and law enforcement believe we are close to discovering the victim’s body. The People were hopeful that the search for, and the discovery of, the victim’s body would be concluded well before trial, but weather has complicated the efforts. Specifically, the area law enforcement has been focused on is in a remote and mountainous region nearby the Morphew residence. This area received a significant amount of snow over the winter months before a search could be completed. To date, the area has 5 feet of snow concealing the location where the People believe Ms. Morphew is located. As a result, the People cannot safely excavate this area and resolve this unanswered question.
Prosecutors said little about the facts beyond those assurances. Most of the motion focused on the law — and whether or not the case could be resurrected in the future.
Citing their “unilateral authority to dismiss criminal charges” and their “discretion in deciding which of several possible outcomes to pursue in a criminal case,” prosecutors asked Judge Lama to dismiss the case — at least for now.
The motion noted that the judge has very little wiggle room in the matter; he must generally rubber-stamp a prosecutor’s decision to dismiss an action.
“[W]hile a court has discretion to deny a motion to dismiss, the circumstances are narrow, as the principles behind the separation of powers gives the People the sole power to prosecute crimes,” the prosecutors wrote.
The “narrow” circumstances which might allow a judge to keep a case alive over a prosecutor’s attempt to dismiss it would include “the prosecutor’s acceptance of a bribe, personal dislike of the victim, and dissatisfaction with the jury impaneled,” said DA Stanley, who signed the motion. Those circumstances, the motion suggests, do not exist here. A court may also refuse to dismiss a case to protect a defendant from suffering from “harassment” by prosecutors.
Stanley argued — as if to tee the case up for possible re-filing — that dismissal at this point in the litigation would not result in harassment should the matter be re-launched again in the future. Here’s how the motion makes that argument at length (we’ve omitted the legal citations and the internal quotation marks):
A dismissal has varied effects with regard to the final disposition of a case. In some instances, a dismissal will preclude further prosecution and in others it will not. A dismissal without prejudice, or nolle prosequi, is a formal declaration of record by the prosecutor that the government will not prosecute the current case further. It is a discharge without an acquittal and is not a bar to a subsequent prosecution for the same crimes. A nolle prosequi order is not the final disposition of a criminal case, but leaves the matter in the same condition as before the charges were filed. Thus, the indictment against the defendant would function as a nullity upon its dismissal without prejudice.
Colorado rules mirror the federal rules on this subject. A dismissal properly taken under Federal Rule 48(a) is without prejudice, and within the period of the statute of limitations, a second indictment or information may be brought on the same charge. In fact, federal case law recognizes that there is a presumption in favor of dismissal without prejudice over a dismissal with prejudice. The mere fact that a dismissal without prejudice leaves the door open to hypothetical future prosecution in this jurisdiction is not tantamount to prosecutorial harassment; were that the case, it is difficult to imagine when dismissal without prejudice would ever be appropriate.
Other case law cited by prosecutors says that if a “delay is the product of valid investigative or prosecutorial purpose,” then a motion to dismiss without prejudice is “not chargeable against the government” — that is the government cannot be penalized for resuscitating the case in the future, should the proper evidence develop.
Here, the People have presented sufficiently reliable good faith reasons to dismiss without prejudice. First, the People believe that we are close to locating the deceased victim’s body. The People’s fundamental responsibility in the criminal justice system is not to gain a conviction, but to further the truth-seeking process and ensure equal justice. In typical homicide cases, the fact of the victim’s death is rarely at issue, but in a case such as this, the most influential fact of consequence is whether or not Ms. Morphew is deceased. If the body proves to be there, further forensic examination could potentially inculpate or exculpate the Defendant, which is incredibly important evidence for the jury to hear in determining the merits of the case. Given the need to conduct further investigation to resolve these issues, this is a good faith basis to dismiss the current indictment.
Finally, some eight pages into the 11-page document, prosecutors acknowledged the issues which led to the exclusion of much of their key evidence:
[W]hen this case was filed it was mainly premised on the Defendant’s motive to harm the victim, his sole access to the victim at the exact time she was last communicating with anyone by phone, and his consistent dishonesty with law enforcement, which came to light given the truck telematics, phone, and location data recovered. The Court functionally excluded the People’s best evidence to move forward in this case by severely limiting our expert’s testimony. Even if the Court were to partially reconsider its position on the need for such severe sanctions at this late hour, the People would still be left without several key expert witnesses initially endorsed. Without this crucial evidence, and without the victim’s body, the People cannot move forward at this time in good faith. Ethics demand that prosecutors proceed to trial only in circumstances where a reasonable likelihood of success exists, which given the Court’s current rulings and the uncertainty of any further rulings, is impossible to completely ascertain. This assessment of the remaining evidence is an additional, good faith basis for this motion to dismiss without prejudice.
The ongoing investigation into the location of the body must be resolved to further the interests of the public. The public seeks a swift resolution of this case, but more than anything, seeks an indisputable answer as to whether or not Ms. Morphew is dead before her killer can be held accountable. This motion also protects the Defendant, as it spares him from a juries’ fast approaching, and potentially unfavorable, verdict. The Defendant’s bond would be discharged, and the case would be a nullity. In the event the case is refiled, the Defendant retains all of his rights to further litigation, and perhaps collateral estoppel on issues already decided. As such, the Defendant’s position would be no worse, and perhaps even stronger, should the case ever be refiled.
Put another way, prosecutors do not seem willing to risk an acquittal.
The motion concludes by noting that Melinda Moorman-Baumunk, Suzanne Morphew’s sister, agrees with the decision to drop the case at this point in time.
Read the full document here:
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