Still Missing CO - Suzanne Morphew, 49, Chaffee Co, 10 May 2020 *arrest* #98

[O.Incandenza]

From the Mountain Mail article: (Judge limits expert witnesses) You can see this without going behind the pay wall.

Cañon City – Prosecutors in the murder trial against Barry Morphew were dealt a setback in Fremont County District Court Thursday. Saying he found a “pattern of neglect” by prosecutors, Judge Ramsey Lama granted defense motions to limit expert testimony.

The judge sanctioned the prosecution for failing to meet their obligations in a timely manner to provide Morphew’s defense attorneys with detailed reports on prosecution witnesses. Morphew is set to stand trial in Cañon City in early May in connection with the disappearance of his wife, Suzanne, who has never been found.

Sooooo, it seems the prosecution still can't get their "stuff" together and as a result there will be no DV expert testimony. Am I reading this right? This is the first trial I have followed. I am assuming the sanctions are a punishment of some sort. Since the prosecution still hasn't given their witness list to the defense team, the judge is punishing the prosecution by ruling that there will be no DV witness testimony?

I don't think so. He'd already ruled that there would be no domestic violence expert testimony at the last hearing. And he'd based that ruling on a probative vs. prejudicial analysis.

So if he announced new limitations on expert testimony as a sanction at the latest hearing, I think they'd be on different experts. But it's hard to know how much to trust the reporting on this stuff. None of the reporters seem to have a legal background, so it's easy for things to get confused.

 

[sk716]

First post for me. Thanks for all the discussion on this case. I have read all 97 threads and have yet to see a defense that fits with the evidence and seems logical. Barry gave so many excuses and lies during his interviews, and that is what will provide justice for Suzanne. I am certain he is guilty

Welcome aboard. I hope you didn't try to read it all in one sitting.

 

[Kemug]

Thank God we have Agent Grusing!

 

[Kemug]

As to proof of DV - iirc MM2 suggested to Suzanne that she get an AVO. Why can't that be heard?

 

[rainbowshummingbird]

First post for me. Thanks for all the discussion on this case. I have read all 97 threads and have yet to see a defense that fits with the evidence and seems logical. Barry gave so many excuses and lies during his interviews, and that is what will provide justice for Suzanne. I am certain he is guilty

I agree with you. No matter how you slice it and dice it, the only explanation that makes sense is for Barry to have murdered Suzanne. There isn’t one piece of evidence that contradicts Barry’s responsibility in her death. Even Barry’s most rabid supporters have been unable to offer up an intelligent or plausible scenario for his innocence.

 

[Cindizzi]

Yesterday was hard to understand but from what I gleaned in addition to continuing to include an expert witness that would speak to behavior on their witness list which the judge vetoed last week the prosecution wanted to have several investigators deemed as experts so they could opinion on their investigation findings and IE argued that was prosecution trying to get around the judges ruling last week. They will be allowed to testify but not as experts. I am wide open to corrections or better info. This might be behind a paywall.
Judge limits expert witnesses

I was able to read the entire article.
Prosecutor Hurlbert wanted to call 7 witnesses including LE and CBI in what is known as a “ dual capacity” where they would testify to what they investigated in the case and also use their specialized knowledge to interpret the evidence.

Eytan argued that the State wants the Court to annoit these LE witnesses as experts so they can give their opinions without relying on any expertise in “ an attempt to convict BM through profiling and
so-called victimology “.

Because the Prosecution failed to meet deadlines, Lama said the 7 witnesses can only testify as lay witnesses in their capacity as LE investigators but will be prohibited from testifying as experts.
Lama said without providing discovery to the Defense as to the basis of their expertise it would amount to “ trial by ambush”.

Lama said he will allow 4 other Prosecution witnesses to testify as experts because their names and information were provided in a timely manner. They include a man who handled a dog search looking for clues of SM along the Arkansas river and a Veterinarian who will testify about the effects of tranquilizer darts.
He sanctioned the Prosecution for failing to provide detailed reports on witnesses in a timely manner. He said it was a flaunting of the Courts Orders and they violated it.

 

[Boxer]

What the heck is wrong with the DA.
Can the prosecutions case recover in the eyes of a jury? Being reprimanded by a judge for a matter of substance is not a good way to assert trustworthiness.

 

[Momofthreeboys]

What the heck is wrong with the DA.
Can the prosecutions case recover in the eyes of a jury? Being reprimanded by a judge for a matter of substance is not a good way to assert trustworthiness.

Fortunately the jury won’t be exposed to some of this. I have opined in the past the trial would be shaped through the motions and that seems to be happening to some degree. Two judges cautioned prosecution that everything they had in the AA would not make it to trial so some of this is expected. There inability to meet deadlines is an excuse that is wearing thin for me.

 

[rainbowshummingbird]

What the heck is wrong with the DA.
Can the prosecutions case recover in the eyes of a jury? Being reprimanded by a judge for a matter of substance is not a good way to assert trustworthiness.

That’s a good question. Most citizens who serve on this jury won’t be like us. There are a lot of people who don’t watch the news and lack familiarity with the specifics of court cases.

 

[Seattle1]

I was able to read the entire article.
Prosecutor Hurlbert wanted to call 7 witnesses including LE and CBI in what is known as a “ dual capacity” where they would testify to what they investigated in the case and also use their specialized knowledge to interpret the evidence.

Eytan argued that the State wants the Court to annoit these LE witnesses as experts so they can give their opinions without relying on any expertise in “ an attempt to convict BM through profiling and
so-called victimology “.

Because the Prosecution failed to meet deadlines, Lama said the 7 witnesses can only testify as lay witnesses in their capacity as LE investigators but will be prohibited from testifying as experts.
Lama said without providing discovery to the Defense as to the basis of their expertise it would amount to “ trial by ambush”.

Lama said he will allow 4 other Prosecution witnesses to testify as experts because their names and information were provided in a timely manner. They include a man who handled a dog search looking for clues of SM along the Arkansas river and a Veterinarian who will testify about the effects of tranquilizer darts.
He sanctioned the Prosecution for failing to provide detailed reports on witnesses in a timely manner. He said it was a flaunting of the Courts Orders and they violated it.

Thanks, @Cindizzi for getting past the pw and sharing.

Seems to me that the matter, as presented, touches on both the basics of Rule 16 - Discovery and Procedure before Trial, and also Rule 26 - General Provisions Governing Discovery; Duty of Disclosure.

First, both Rules apply equally to both the prosecution and the defense.

Second, while there's definitely some discretion by the Court in governing Rule 16 where the parties are essentially held to a good faith effort to disclose discovery as soon as practicable, the Court cannot and will not ignore that the general intent of Rule 16 is not only to allow both the prosecution and defense sufficient meaningful information to conduct effective cross-examination under CRE705, but also sufficient time to work with that meaningful information!

I think this is where we are at-- sufficient time.

IMO, there's no better defense attorney in the state of Colorado than IE when it comes to reminding the Court of the defense's right to discovery as soon as practicable.

Each one of us can attest to how beginning with IE's very first appearance before the Court in the matter of the PEOPLE OF THE STATE OF COLORADO v. BARRY LEE MORPHEW, she has not once neglected to loudly hammer on both the prosecution and the Court about their right to discovery, preferably yesterday, and also demand serious sanctions-- applicable or not.

I think the prosecution took a gamble here with their deadline, and Judge Lama didn't bite. (I'm sure IE constantly yelling that the prosecution is baking BM's birthday cake with sour milk and 12-month old eggs didn't help). MOO

Rule 16 - Discovery and Procedure Before Trial, Colo. R. Crim. P. 16 | Casetext Search + Citator

Under Rule 16 --(d) Discretionary Disclosures,...

(3) Where the interests of justice would be served, the court may order the prosecution to disclose the underlying facts or data supporting the opinion in that particular case of an expert endorsed as a witness.

If a report has not been prepared by that expert to aid in compliance with other discovery obligations of this rule, the court may order the party calling that expert to provide a written summary of the testimony describing the witness's opinions and the bases and reasons therefor, including results of physical or mental examination and of scientific tests, experiments, or comparisons.

The intent of this section is to allow the defense sufficient meaningful information to conduct effective cross- examination under CRE 705.

Rule 26 - General Provisions Governing Discovery; Duty of Disclosure, Colo. R. Civ. P. 26 | Casetext Search + Citator

Under Rule 26 - (2) Disclosure of Expert Testimony,...

(A) In addition to the disclosures required by subsection (a)(1) of this Rule, a party shall disclose to other parties the identity of any person who may present evidence at trial, pursuant to Rules 702, 703, or 705 of the Colorado Rules of Evidence together with an identification of the person's fields of expertise.

(B) Except as otherwise stipulated or directed by the court:
(I) Retained Experts. With respect to a witness who is retained or specially employed to provide expert testimony, or whose duties as an employee of the party regularly involve giving expert testimony, the disclosure shall be made by a written report signed by the witness. The report shall include:

[..]

(C) Unless otherwise provided in the Case Management Order, the timing of the disclosures shall be as follows:

(I) The disclosure by a claiming party under a complaint, counterclaim, cross-claim, or third-party claim shall be made at least 126 days (18 weeks) before the trial date.
(II) The disclosure by a defending party shall be made within 28 days after service of the claiming party's disclosure, provided, however, that if the claiming party serves its disclosure earlier than required under subparagraph 26(a)(2)(C)(I), the defending party is not required to serve its disclosures until 98 days (14 weeks) before the trial date.
(III) If the evidence is intended to contradict or rebut evidence on the same subject matter identified by another party under subparagraph (a)(2)(C)(II) of this Rule, such disclosure shall be made no later than 77 days (11 weeks) before the trial date.

 

[mom2chloe]

Thanks, @Cindizzi for getting past the pw and sharing.

Seems to me that the matter, as presented, touches on both the basics of Rule 16 - Discovery and Procedure before Trial, and also Rule 26 - General Provisions Governing Discovery; Duty of Disclosure.

First, both Rules apply equally to both the prosecution and the defense.

Second, while there's definitely some discretion by the Court in governing Rule 16 where the parties are essentially held to a good faith effort to disclose discovery as soon as practicable, the Court cannot and will not ignore that the general intent of Rule 16 is not only to allow both the prosecution and defense sufficient meaningful information to conduct effective cross-examination under CRE705, but also sufficient time to work with that meaningful information!

I think this is where we are at-- sufficient time.

IMO, there's no better defense attorney in the state of Colorado than IE when it comes to reminding the Court of the defense's right to discovery as soon as practicable.

Each one of us can attest to how beginning with IE's very first appearance before the Court in the matter of the PEOPLE OF THE STATE OF COLORADO v. BARRY LEE MORPHEW, she has not once neglected to loudly hammer on both the prosecution and the Court about their right to discovery, preferably yesterday, and also demand serious sanctions-- applicable or not.

I think the prosecution took a gamble here with their deadline, and Judge Lama didn't bite. (I'm sure IE constantly yelling that the prosecution is baking BM's birthday cake with sour milk and 12-month old eggs didn't help). MOO

Rule 16 - Discovery and Procedure Before Trial, Colo. R. Crim. P. 16 | Casetext Search + Citator

Under Rule 16 --(d) Discretionary Disclosures,...

(3) Where the interests of justice would be served, the court may order the prosecution to disclose the underlying facts or data supporting the opinion in that particular case of an expert endorsed as a witness.

If a report has not been prepared by that expert to aid in compliance with other discovery obligations of this rule, the court may order the party calling that expert to provide a written summary of the testimony describing the witness's opinions and the bases and reasons therefor, including results of physical or mental examination and of scientific tests, experiments, or comparisons.

The intent of this section is to allow the defense sufficient meaningful information to conduct effective cross- examination under CRE 705.

Rule 26 - General Provisions Governing Discovery; Duty of Disclosure, Colo. R. Civ. P. 26 | Casetext Search + Citator

Under Rule 26 - (2) Disclosure of Expert Testimony,...

(A) In addition to the disclosures required by subsection (a)(1) of this Rule, a party shall disclose to other parties the identity of any person who may present evidence at trial, pursuant to Rules 702, 703, or 705 of the Colorado Rules of Evidence together with an identification of the person's fields of expertise.

(B) Except as otherwise stipulated or directed by the court:
(I) Retained Experts. With respect to a witness who is retained or specially employed to provide expert testimony, or whose duties as an employee of the party regularly involve giving expert testimony, the disclosure shall be made by a written report signed by the witness. The report shall include:

[..]

(C) Unless otherwise provided in the Case Management Order, the timing of the disclosures shall be as follows:

(I) The disclosure by a claiming party under a complaint, counterclaim, cross-claim, or third-party claim shall be made at least 126 days (18 weeks) before the trial date.
(II) The disclosure by a defending party shall be made within 28 days after service of the claiming party's disclosure, provided, however, that if the claiming party serves its disclosure earlier than required under subparagraph 26(a)(2)(C)(I), the defending party is not required to serve its disclosures until 98 days (14 weeks) before the trial date.
(III) If the evidence is intended to contradict or rebut evidence on the same subject matter identified by another party under subparagraph (a)(2)(C)(II) of this Rule, such disclosure shall be made no later than 77 days (11 weeks) before the trial date.

So could you please dumb it down for me and explain whether the prosecution is misbehaving or is this par for the course? I hate to blame Covid for anything else but is it even a possibility that they have run low on people, time, etc. thanks so much.

 

[Cindizzi]

As to proof of DV - iirc MM2 suggested to Suzanne that she get an AVO. Why can't that be heard?

I’m thinking it won’t be heard if it’s only in a text from SM to her friend SO because it will be considered hearsay.
I’m almost positive that neither daughter will be willing to take the stand and corroborate that. Just my opinion.
Also, we’re seeing how the Defense is being vey successful in keeping out any “ prior alleged acts of DV” with the Judge ruling that the Prosecution can’t provide dates and times of the things SM claims or what led up to them. I don’t agree but that’s his ruling.

SO will still be a key witness and it will be interesting to see exactly what she is allowed to testify to.
It’s very confusing due to not only the fact that documents aren’t available to us, but the restrictions on reporting from the Courtroom keeping us from getting the whole picture here.
I don’t believe that ALL texts will be excluded ( some people do).

I know that the Defense will object to everything SO told LE in her interviews by saying that “ that’s only her interpretation of what SM meant” . Since SM is not here to speak for herself.

They may be able to keep out all the things SM told her friend about not feeling safe with this Jekyll and Hyde and his long-standing attempts to control her because his Defense says “ so called victimology” is prejudicial to their client. Unfortunately.

I hope the State has a skilled Prosecutor who can ask the right questions of SO to paint a picture that the Jury can clearly follow.

As for the what the daughters knew, I would HOPE that this interview with LE will be allowed. It’s redacted but I think it’s MM2 .

It doesn’t exactly point to DV but definitely points to SM’s state of mind and the state of the marriage,
JMO
Page 6
https://www.courts.state.co.us/user.../21CR78/21cr78 Morphew Redacted Affidavit.pdf
On May 11 , 2020.

 

[mom2chloe]

I’m thinking it won’t be heard if it’s only in a text from SM to her friend SO because it will be considered hearsay.
I’m almost positive that neither daughter will be willing to take the stand and corroborate that. Just my opinion.
Also, we’re seeing how the Defense is being vey successful in keeping out any “ prior alleged acts of DV” with the Judge ruling that the Prosecution can’t provide dates and times of the things SM claims or what led up to them. I don’t agree but that’s his ruling.

SO will still be a key witness and it will be interesting to see exactly what she is allowed to testify to.
It’s very confusing due to not only the fact that documents aren’t available to us, but the restrictions on reporting from the Courtroom keeping us from getting the whole picture here.
I don’t believe that ALL texts will be excluded ( some people do).

I know that the Defense will object to everything SO told LE in her interviews by saying that “ that’s only her interpretation of what SM meant” . Since SM is not here to speak for herself.

They may be able to keep out all the things SM told her friend about not feeling safe with this Jekyll and Hyde and his long-standing attempts to control her because his Defense says “ so called victimology” is prejudicial to their client. Unfortunately.

I hope the State has a skilled Prosecutor who can ask the right questions of SO to paint a picture that the Jury can clearly follow.

As for the what the daughters knew, I would HOPE that this interview with LE will be allowed. It’s redacted but I think it’s MM2 .

It doesn’t exactly point to DV but definitely points to SM’s state of mind and the state of the marriage,
JMO
Page 6
https://www.courts.state.co.us/userfiles/file/Court_Probation/11th_Judicial_District/Chaffee/cases of interest/21CR78/21cr78 Morphew Redacted Affidavit.pdf
On May 11 , 2020.

I wish we had a DV expert among us. Perhaps we can find one? I know many years ago my sister had an abuser and she awakened to bruising all over her body after a Christmas party which she shared with a coworker who took photos to document and were safely secured although never necessary. This psycho later stole my sister’s dog who no one was aware of until his current girlfriend called her concerning the dog being old and sick. I had one also many years ago who had another girlfriend leave a note on my front door regarding her fear and my fear and she really wanted to talk to me. hubby and I have all my stuff documented and hidden in a safe.
What more do women need to do in order to document the various abuse they incur? If I text my bff, my sister, my brother or pastor/therapist and that is not permitted into evidence what the hell do we do? Calling LE is often not an option for many reasons especially with children in the home and fear of repercussions from the abuser. Much abuse doesn’t even leave physical evidence but rampantly occurs. We live in the US for God’s sake. All these things should matter and be meaningful and should find their way into evidence in court especially in a case like this. IMO

 

[mom2chloe]

Do we know whether Suzanne reached out to her minister? Stacy Peterson did and he played a big roll in the admitting of DV charges and evidence. Damn Covid has cost us so much more than what lies among us. Suzanne strikes me as someone who may have reached out because of her faith and religious beliefs. God Bless her!

 

[Cindizzi]

So could you please dumb it down for me and explain whether the prosecution is misbehaving or is this par for the course? I hate to blame Covid for anything else but is it even a possibility that they have run low on people, time, etc. thanks so much.

Now that you mentioned the possibility of the Prosecution being low on manpower,I remember that in one of LS’s YouTube recaps of a hearing ( maybe a month ago) she said that one of the Prosecutors said that they only had one secretary and that’s why they were behind. It made me cringe.

Like @Seattle1 said, I definitely remember that IE has hammered home from her first appearance Discovery in a timely manner.
With the voluminous amount I was able to give the State the benefit of the doubt and believed they were following through as best they could.

I remember all the complaints of IE about files they couldn’t open or files that needed a reader to access and the Prosecution didn’t appear to be responsible for any wrong doing in my opinion.
I’ve never wanted to believe that they were dragging their feet .
But turning over cell phone and spy pen data is one thing.

Now that it’s this close to trial and the issue is qualifying witnesses as experts ( which I’ve seen in every trial I’ve followed.. but I’ve never seen this dual witness thing) I can’t believe that the Prosecution would not know that IE would be watching the clock !
This makes me very nervous.
JMO

 

[DizzyB]

I’m not confident in the prosecution’s handling of the case. They seem flat footed in comparison to the defense in the courtroom. I haven’t seen anything yet that sparks confidence in the state’s team. Do I think Barry murdered Suzanne? Absolutely. I am just nervous that the prosecution is going to blow this by being unprepared to do battle.

 

[Pyrite]

As to proof of DV - iirc MM2 suggested to Suzanne that she get an AVO. Why can't that be heard?

I think it can be if the prosecution can get MM2 to testify that she said it to SM. Otherwise it’s hearsay.

MOO as a non attorney.

 

[Seattle1]

So could you please dumb it down for me and explain whether the prosecution is misbehaving or is this par for the course? I hate to blame Covid for anything else but is it even a possibility that they have run low on people, time, etc. thanks so much.

OK, I'll try my best:

Since I don't have sufficient information to opine on the what/why of evidence being suppressed or not allowed as evidence, I'm responding to your question specifically as this being a timing matter where Judge Lama stated that because the Prosecution failed to meet deadlines, 7 prosecution witnesses can only testify as lay witnesses in their capacity as LE investigators but will be prohibited from testifying as experts.

Since it's very much possible that the prosecution has been involved in cases where they could not meet a deadline ordered by the court, filed a motion at the 11th hour asking the court for a bit more time, the defense did not object to the motion, and the Court granted more time, then I really can't call it misbehaving by the prosecution.

Is it par for the course?

In practice, sometimes the defense is either behind themselves or knows they hadn't scheduled to review the subject discovery for another week, and they'll extend the courtesy to the other side that's requested more time.

In this case, we don't even know why the prosecution missed the deadline. If the reasons were disclosed to us, we might think it legitimate, or we might even agree with Judge Lama that the sanction not to allow 7 witnesses as experts is a fair and reasonable sanction.

Nonetheless, I do think it's fair to say that the clock ran out long ago for the defense to even entertain the idea of extending any courtesy to the prosecution!

I don't think it's disputed that defense attorney IE has hammered the Court about not receiving Discovery fast enough beginning with her very first court appearance!

Given the trial less than 7 weeks away, it should not surprise that the defense wants to hold Judge Lama to upholding every deadline previously ordered by Judge Murphy or himself. MOO

 

[Pyrite]

What the heck is wrong with the DA.
Can the prosecutions case recover in the eyes of a jury? Being reprimanded by a judge for a matter of substance is not a good way to assert trustworthiness.

I think most prosecutors are used to skirting the rules and never being called on it. Public defenders get so overwhelmed with case, they seldom try a case and instead plea bargain.

BM instead has the money to hire top defenders who call on the DA for everything that skirts or crosses the line our constitutional rights give us when we are charged with a crime. I wish everyone had a defense as good as BM. DAs would be forced to play by the rules and we would have fewer faulty verdicts.

MOO

 

[susiQ]

I guess it is to be expected that I & D are going to fight for their client. It’s their job and they are very good at what they do. If he were innocent we’d be cheering them on. We know he isn’t so we’re annoyed. We also get the feeling the prosecution is not doing their best in meeting the requirements of the court. Question is, will these failings lead to BM’s acquittal? I was annoyed with the Judge too, but after reading what was discussed yesterday and the rules covering discovery that @Seattle1 posted, I understand why he ruled the way he did.

It’s disappointing that DV will not be allowed in but as I said before, most of us here knew he was guilty before we knew all the details. I still believe the prosecutors will be able to make their case without some of the expert witnesses. We didn’t need an expert to convince us of his guilt. The mountainous amount of circumstantial evidence were enough.

I think if the evidence is presented in a way that jurors can follow, they too will see there is only one person that had the motive and opportunity to kill SM. There are no alternative suspects to point the finger at. No exculpatory evidence for I & D to work with. There is no alternate theory that will stand up to the evidence the prosecution has gathered. I just hope they’re working hard to trim down the witness list .