Judge Domenico's decision lists two categories of allegedly "exculpatory facts" described in Morphew's complaint: (1) facts inconsistent with he prosecution's theory that were not mentioned in the arrest affidavit; and (2) facts and conclusions mentioned in the complaint that are allegedly unreliable or fabricated. What do you think of these allegations? Would the state have grounds to dispute any of them if the case had survived the immunity defense? Will DA Kelly have to deal with any of them? Which ones? Are there legal strategies and tactics she can use to avoid any of these alleged exculpatory facts? How much of a problem will these be for a second prosecution of Barry Morphew?
Again, it's important to remember that Domenico is not making findings here. Under the legal standard that applies to motions to dismiss, he is required to take the allegations of the complaint at face value and in the light most favorable to the plaintiff - solely for the purposes of analysis.
There's a lot to discuss here among this will informed, articulate, and intelligent group.
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B.
The Exculpatory Facts
These facts, however, do not paint the whole picture. The investigation into Mrs. Morphew’s disappearance also discovered
facts that were inconsistent with the prosecution’s theory and that would have tended to support the conclusion that his wife was abducted by a stranger. These include the following:
1. Partial unknown genetic profiles were recovered from his wife’s car and, using a national DNA database called CODIS, identified as potential matches to unsolved sex crimes committed in other states. Doc. 1 at 20-21.
2. Unknown male DNA was found in a number of locations inside his home and on his wife’s bike. Id. at 29-30.
3. Plaintiff tried to contact his wife on the day she disappeared. Id. at 79.
4. A K-9 detected his wife’s scent near the scene of the abandoned bicycle. Id. at 85.
5. A K-9 did not alert to the scent of a cadaver in their home or vehicles. Id. at 89.
6. His hotel room in Broomfield may have smelled like chlorine because it was above an indoor pool (not because Plaintiff was de- stroying evidence, as the affidavit suggested). Id. at 100.
7. His wife’s phone and computer exhibited activity into the evening of May 9, suggesting that she was alive past the time investigators theorized he had killed her. Id. at 53-63.
8. The plastic needle cap allegedly found by investigators in Plaintiff’s dryer was actually a hypodermic needle cap, not a tranquil- izer dart cap. Id. at 67.
9. A tranquilizer gun is the only method by which to shoot a tranquilizer dart and Plaintiff’s tranquilizer gun, which was stored in a locked gun safe, was inoperable and had not been used in a long time. Id. at 68-69.
None of these facts was mentioned in the affidavit submitted by prosecutors to the court.
The affidavit also included a range of
allegedly fabricated and unreliable information in an attempt to bolster the inference that the evidence against Plaintiff was overwhelming. This included the following:
10. A “pushpin map” that was used to suggest that Plaintiff was chasing his wife around the house on the afternoon of May 9, immediately before killing her. Investigators knew this map was unreliable because of a phenomenon called “static drift,” which would have been a better explanation for why his phone was moving around the house so quickly. Doc. 1 at 38-46.
11. Plaintiff’s alleged admission that he was probably chasing a chipmunk in response to being confronted with the “pushpin map.” Investigators also knew this admission was unreliable because it was made in response to fabricated and deceptive evidence. Id. at 44.
12. Unreliable conclusions regarding his phone being in “airplane mode” on May 9. Id. at 46-52.
13. Unreliable conclusions drawn from the “telematics” and odome- ter of his truck. Id. 87-89.
14. The false statement that he knew about his wife’s affair. Id. at 110.
15. The false statement that he admitted to keeping tranquilizer chemicals on his work bench. Id. at 74.
16. That his wife’s bicycle was “discarded.” Id. at 77.
17. That his alibi was “created” to account for her disappearance.
18. That his tools were “staged” in the Broomfield hotel lobby. Id. at 82.
19. That his wife “wanted out” of their marriage. Id. at 91.
20. That his wife bought a spy pen for “safety” reasons. Id. at 93.
21. That his wife’s romantic partner refused to travel to Colorado because Plaintiff had security cameras all over the house. Id. at 95.
22. That there was “suspected blood” near Plaintiff’s garage. Id. at 97.
23. That it was fair to assume his wife was dead because there were no records of her entering another country or using a credit card. Id. at 98.
24. That he was having an affair. Id. at 100.
25. That he used his Bobcat skid steer to dispose of his wife’s body. Id. at 107.
26. That he lied about having “steaks” for dinner with his wife the night before she disappeared. Id. at 114.
27. That he “blamed” a mountain lion for his wife’s disappearance. Id. at 116.
28. That he “blamed” a turkey for why he was down by the creek while his wife was on the phone with her lover the afternoon before she disappeared. Id. at 117-18.
29. That he used the “firing of a gun” to “describe” his violence to- wards his wife on the day she disappeared. Id. at 119.
30. That he described his wife’s breathing as “labored” the last time he saw her. Id. at 120.
31. That he admitted to taking his wife’s phone once or twice in the past to monitor what she was doing.
