Found Deceased CO - Suzanne Morphew, 49, Chaffee Co, 10 May 2020 *Case dismissed w/o prejudice* *found in 2023* #115

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Judge Domenico summarized the uncontested facts articulated in the arrest affidavit as follows. My question for long term observers of this case is: Did he miss anything?

1. Macy Morphew’s admission that her parents argued a lot and that she feared they would separate or divorce.

2. Mrs. Morphew’s sister, Melinda Baumunk, described Plaintiff as one who lives a double life, a liar, an adulterer, a bully, one that has to have control, cunning, fools people a lot, and treats his wife and daughters as trophies.

3. Mrs. Morphew texted her sister two days before she disappeared: “Its hard dealing with the harsh abrasiveness and having to show respect. He’s also been abusive, emotionally and physically. There’s so much...I went thru a period of acceptance and I feel more angry now. Anger at what I’ve allowed.”

4. Mrs. Morphew kept a list of grievances about her husband on the notes application on her phone, which included “Phys abuse,” “Stalking Sheila and me in house without telling,” “Chase me around resort and threatened,” “Took phone,” “Not safe alone with you. Can’t be trusted,” “Oppressive,” and “Accused me of bf."

5. Mrs. Morphew texted her husband a few days before she disappeared: “I’m done. I could care less what you’re up to and have been for years. We just need to figure this out civilly.”

6.. Plaintiff declined to submit to a polygraph examination regard- ing his memory of the events leading up to his wife’s disappearance and his alibi.

7. Investigators observed scratches on Plaintiff’s upper left arm three days after his wife disappeared.

8. Plaintiff thought it was “very suspicious” that his wife would not tell him about some of her communications, even if he did not know she was involved in a sexual relationship with another man.

9. Plaintiff’s conflicting statements about whether he went on a hike to Fooses Lake with his wife the day before her disappearance.

10. Plaintiff’s conflicting statements about whether he used his tran- quilizer or darts in Colorado, including his admissions that “I’ve shot two deer with my tranq gun, ‘cause I used to raise deer, and I collect horns” and that “I’ve shot deer from that little breezeway from between the garage and the laundry room.”

11. Plaintiff’s admission that he used BAM, Telazol, and Xylazine as tranquilizers and that he brought these chemicals, which he knew to be controlled substances, from Indiana.

12. Retired Colorado Parks & Wildlife Field Veterinarian Lisa Wolfe’s surprise that a civilian would have these animal tranquilizers.

13. Plaintiff’s admission that he kept the tranquilizer chemicals in vials and injected them into darts himself.

14. Mrs. Morphew’s “spy pen” recorded her husband listening to several episodes of “Forensic Files”— including three episodes about murders — during a drive to Pueblo less than two months before she disappeared.

15. Plaintiff was originally scheduled to pick up an employee to drive to Broomfield for a landscaping job around 5:30 p.m. on the day his wife disappeared but instead left at 5:00 a.m., twelve hours earlier than planned.

16. Plaintiff was seen “carrying unknown items in his hands and placing items into two separate trash cans located on the edge of the McDonald’s lot between 10:19 AM and 10:41 AM” on May 10, 2020, roughly six hours after Mrs. Morphew was last seen alive.

17. Plaintiff was the last person to see his wife alive.

18. Plaintiff could not recall the items that were in the trash bags, stating that they were “probably old clothes” or boots. He could also not recall why he pushed the trash to the extent that his shoulder was in the trash can.

19. Plaintiff suggested saying “I don’t recall” was code for not wanting to tell the truth but himself didn’t recall a number of critical facts surrounding his wife’s disappearance.

20. Plaintiff began to liquidate the family’s assets within a month of his wife’s disappearance.

21. Plaintiff was an avid hunter and a professional landscaper and may have possessed the tools and expertise necessary to kill his wife, bury her body, and dispose of the evidence.

22. Plaintiff became intimately involved in a relationship with another woman in the months immediately following his wife’s dis- appearance (before her body had been discovered).

23. Mrs. Morphew’s father felt it was odd that neither of his grand-daughters or Plaintiff were home on Mother’s Day, when Mrs. Morphew disappeared, and that it was unusual that Plaintiff would choose to work on the Sunday of Mother’s Day when he seldom worked on Sundays.

Iirc - Barry also deleted message communications between him and Suzanne that Judge Domenico didn't mention? Some were quite clear that things were not good between them

moo
 
I note that like Judge Murphy, Domenico stated that probable cause was a low burden of proof and suggested that unknown male DNA could make the case against Barry Morphew difficult to prove (see the decision appended to the article linked above):

"Plaintiff is correct that the exculpatory information omitted from the arrest affidavit was material and may have undercut the prosecution’s theory by supporting the alternative conclusion that his wife was abducted by a stranger. Particularly significant in this regard are the facts that unknown DNA swabbed from Mrs. Morphew’s car potentially matched DNA found in three out-of-state unsolved sexual assault investigations, that unknown male DNA was discovered in several places on her discarded bike and in their home, and that her scent was found near the area where her bicycle was found, possibly suggesting that this scene was not staged. These facts explain why proceeding with the arrest and charges at the time the affidavit was filed was at the very least unwise: the uncertainties raised by some of this evidence would have made it very difficult for the prosecution to secure a conviction at trial beyond a reasonable doubt, and prosecutors, generally, understand they have an ethical obligation not to bring charges that they cannot prove beyond a reasonable doubt."

What gives you confidence that DA Kelly and her team can overcome these challenges? How does the discovery of Suzanne's remains and the presence of animal tranquilizer in her bones overcome the uncertainties expressed by the two judges who have assessed the case?
 
I note that like Judge Murphy, Domenico stated that probable cause was a low burden of proof and suggested that unknown male DNA could make the case against Barry Morphew difficult to prove (see the decision appended to the article linked above):

"Plaintiff is correct that the exculpatory information omitted from the arrest affidavit was material and may have undercut the prosecution’s theory by supporting the alternative conclusion that his wife was abducted by a stranger. Particularly significant in this regard are the facts that unknown DNA swabbed from Mrs. Morphew’s car potentially matched DNA found in three out-of-state unsolved sexual assault investigations, that unknown male DNA was discovered in several places on her discarded bike and in their home, and that her scent was found near the area where her bicycle was found, possibly suggesting that this scene was not staged. These facts explain why proceeding with the arrest and charges at the time the affidavit was filed was at the very least unwise: the uncertainties raised by some of this evidence would have made it very difficult for the prosecution to secure a conviction at trial beyond a reasonable doubt, and prosecutors, generally, understand they have an ethical obligation not to bring charges that they cannot prove beyond a reasonable doubt."

What gives you confidence that DA Kelly and her team can overcome these challenges? How does the discovery of Suzanne's remains and the presence of animal tranquilizer in her bones overcome the uncertainties expressed by the two judges who have assessed the case?
The uncertainties have been eliminated.

The partial matches were partially matched, not actually matched to sex offenders who DNA it was not and never was.

The dog tracked A scent. It was a nonstarter.

Jmo
 
Barry, who admits to being with Suzanne all afternoon, evening and morning can't ascribe one single credible interaction lending toward proof of life.

Veggie stew for lunch. 4 day old porridge, except Barry never came inside.

Then for dinner, she would have made potatoes. (That is a telling verb choice. It's NOT that same as 'made'.)

Two steaks, one steak, shared a steak, one plate. No potatoes I guess.

Agreed to put away their phones. Oh, really? I don't think Suzanne agreed to that.
No hike. No dialogue. No arguments. No phone calls. No internet surfing.

Had sex. Again, she didn't agree to that. 1. She was done with him. 2. She was dead.

Barry says his last impression of Suzanne (wwll, at the house anyway) -- his beloved wife: a lump in bed. Lightly snoring.

That part I believe.

JMO
 
Iirc - Barry also deleted message communications between him and Suzanne that Judge Domenico didn't mention? Some were quite clear that things were not good between them

moo
Judge Domenico does recite evidence from Suzanne's communications that establish the marriage was tense, and that it was coming to an end just before she disappeared.

But he summarizes Barry's take on the late phone activity as an "Exculpatory Fact":

"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."

It's important to keep in mind that that in considering motions to dismiss, Judge Domenico was bound to accept the factual allegations Morphew made in his complaint as true for purposes of the analysis. He isn't resolving factual disputes.
 
Judge Domenico does recite evidence from Suzanne's communications that establish the marriage was tense, and that it was coming to an end just before she disappeared.

But he summarizes Barry's take on the late phone activity as an "Exculpatory Fact":

"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."

It's important to keep in mind that that in considering motions to dismiss, Judge Domenico was bound to accept the factual allegations Morphew made in his complaint as true for purposes of the analysis. He isn't resolving factual disputes.
Thank you for the summary and details @Tragg …. the information is a nice assembly of some key points in the BM case. With respect to this note in the above excerpt:

“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.”

Perhaps it might be more accurate to indicate that IIUC SM phone and computer were ‘active’ or being used (by someone….. perhaps not SM?) in a time possibly after that in which she was theorized to have been deceased. It is also possible that the investigators and prosecution might further refine the timeline of events. And the location of electronic devices at time of ‘use’ still needs to be considered.

There are similarities in the Idaho Bryan Kohberger slaying case of four students where certain electronic activity (or the absence of activity) is a factor in assembling that case. MOO
 
Clearly, both summaries by Judges Murphy and Domenico make it clear that there was probable cause to arrest Barry Morphew for the murder of Suzanne on May 4, 2021, and there was nothing "illegal" about his arrest, nor did the arrest violate any civil right under the US Constitution. Shame on his well heeled defenders, feeding his narcissism, all the while looking for a $15M cash grab! MOO

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The uncertainties have been eliminated.

The partial matches were partially matched, not actually matched to sex offenders who DNA it was not and never was.

The dog tracked A scent. It was a nonstarter.

Jmo
Morphew's complaint makes the following allegations in relation to the "partial match" issue:

99. In the summer of 2020, Defendant CBI Agents Megan Duge and Cailtlin Rogers, and the other Defendant CBI Agents determined foreign unknown male DNA was found on various items of the crime scene including: the exterior cushion of the bike helmet, Suzanne's bike seat, Suzanne’s bike brakes and handlebars, Suzanne’s bike grips, the carpet by the Morphew’s bed, on a stair in the Morphew home, and on the back seat and the glovebox of Suzanne's Range Rover that was parked in the Morphew garage.

100. Barry Morphew, along with nearly sixty other investigative personnel working the scene and lay people who could have possibly been the source of the unknown male DNA, were excluded as sources of the DNA samples.

101. Defendant Cahill, a CBI Agent, was the lead CBI investigator assigned to assist local authorities in the investigation of Suzanne's disappearance.

102. In the fall of 2020, Defendant CBI Agent Cahill submitted a request that the CBI lab conduct forensic analysis of numerous items. He explained, "this unknown male profile was submitted ... because [there is] additional information to suspect the 2015 Range Rover was used in commission of a criminal offense."

103. Defendant CBI Agent Rogers determined the partial genetic profile warranted uploading the sample into CODIS, a national DNA database.

104. CODIS is the acronym for the Combined DNA Index System. CODIS contains DNA samples of convicted offenders nationwide, along with unknown samples from unsolved crimes and active investigations.

105. In October and November 2020, CBI Defendants Rogers and Duge were made aware of two CODIS matches to two different unsolved sex offenses in Arizona.

106. On December 4, 2020, Defendants Cahill, Burgess, Walker, Rohrich, Hysjulien, Grusing and Graham were made aware of one of the CODIS matches from an unsolved sex offense in Tempe, Arizona to the partial genetic DNA profile collected from Suzanne’s car.

107. In April 2021, Defendant CBI Agents Roger and Duge were made aware of another CODIS match from Suzanne’s Range Rover to another unsolved sex offense in Illinois.

"115. On May 19, 2021, Defendant CBI Agent Duge sent Defendants CBI Agents Cahill, Burgess and Chris Adams a CODIS match letter via email indicating the unknown male DNA swabbed from the glovebox of Suzanne’s Range Rover partially matched DNA found in three out-of-state unsolved sexual assault investigations in Tempe, Phoenix, and Chicago.

116. Defendant CBI Agent Duge’s May 19, 2021 letter stated that due to the “limited genetic profile” this was only a lead and further investigation was necessary.

117. “Limited genetic profile” is not a scientific term mentioned or accepted in the FBI CODIS manual.

118. Defendant Duge created this term.

119. Defendant Duge advised Defendants Stanley, Hurlbert, Lindsey, Walker, Spezze, Rohrich, Rogers, Graham, Cahill, Grusing and Harris that this was not a scientific term."

Judge Domenico seems to sum these allegations up as follows, under his list of "Exculpatory Information":

"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.

Unknown male DNA was found in a number of locations inside his home and on his wife’s bike."

I frankly don't understand what Eytan and company (and Judge Domenico) continue to see as significant about this, given the understanding of "partial match" reflected on these WS pages. Can someone explain? Also, why are we treating the unknown male DNA in the house as insignificant? Do you think DA Kelly will?
 
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Clearly, both summaries by Judges Murphy and Domenico make it clear that there was probable cause to arrest Barry Morphew for the murder of Suzanne on May 4, 2021, and there was nothing "illegal" about his arrest, nor did the arrest violate any civil right under the US Constitution. Shame on his well heeled defenders, feeding his narcissism, all the while looking for a $15M cash grab! MOO

View attachment 535606
I totally agree that the uncontested facts support probable cause. Under existing law, the prosecutors and law enforcement officials are clearly immune from suit for that reason, and I believe Eytan and company went into the lawsuit knowing this.

However, their oral arguments and a supplemental case filing suggest to me that they are pursuing a change in precedent either abolishing or modifying the immunity defenses to make it easier to recover civil damages.

If I am right, and if Morphew was advised that dismissal was likely at the district court level, there is no shame in seeking a change in the law. Whether or not we agree with the need for change on this particular point (and I don't), much of what our culture has celebrated as progress over the decades has resulted from this kind of advocacy.
 
The uncertainties have been eliminated.

The partial matches were partially matched, not actually matched to sex offenders who DNA it was not and never was.

The dog tracked A scent. It was a nonstarter.

Jmo
I disagree with this. The DNa has been determined as a non issue by the social media participants. It is still very much something prosecution must disprove during a trial setting as it is part of the discovery record. Much has been learned that benefits a second attempt at prosecution but unlike the first attempt which wasn’t even close to a slam dunk, a second attempt team has learned much about the strengths and weaknesses.
 
I totally agree that the uncontested facts support probable cause. Under existing law, the prosecutors and law enforcement officials are clearly immune from suit for that reason, and I believe Eytan and company went into the lawsuit knowing this.

However, their oral arguments and a supplemental case filing suggest to me that they are pursuing a change in precedent either abolishing or modifying the immunity defenses to make it easier to recover civil damages.

If I am right, and if Morphew was advised that dismissal was likely at the district court level, there is no shame in seeking a change in the law. Whether or not we agree with the need for change on this particular point (and I don't), much of what our culture has celebrated as progress over the decades has resulted from this kind of advocacy.
I apologize for not being clear. Many vet followers here always saw this suit as a IE's personal springboard trying to resurrect her earlier failed legislative effort to ban qualified immunity for prosecutors. MOO
 
I apologize for not being clear. Many vet followers here always saw this suit as a IE's personal springboard trying to resurrect her earlier failed legislative effort to ban qualified immunity for prosecutors. MOO
I think we're describing essentially the same thing but with different perspectives.

It seems to me that Iris Eytan has been attacking what she sees as abuses by law enforcement on all fronts and by all lawful means for a long time, and she seems to have become increasingly frustrated by lack of results. If she has pushed too far on the ethical front, reasonable lay minds may differ. But no one in the profession with authority has taken her to task for anything, so far.

Judge Domenico certainly has it within his power to sanction parties and their attorneys for filing a complaint that has no basis. We'll see whether the defendants ask for sanctions: they can. I think Domenico's sympathetic (and gratuitous) statements signal that he understands the intent may be to change the law.

I can respect Eytan's policy agenda to uphold professional standards and a defendant's legal rights by holding prosecutors to account, and yet be disappointed in her choice of the Morphew case as her vehicle for such advocacy. If Barry is ultimately convicted the agenda may well fall apart at least for her: Welcome to Credibility Gap, Iris!
 
I totally agree that the uncontested facts support probable cause. Under existing law, the prosecutors and law enforcement officials are clearly immune from suit for that reason, and I believe Eytan and company went into the lawsuit knowing this.

However, their oral arguments and a supplemental case filing suggest to me that they are pursuing a change in precedent either abolishing or modifying the immunity defenses to make it easier to recover civil damages.

If I am right, and if Morphew was advised that dismissal was likely at the district court level, there is no shame in seeking a change in the law. Whether or not we agree with the need for change on this particular point (and I don't), much of what our culture has celebrated as progress over the decades has resulted from this kind of advocacy.
There is rogue DNA in every house! It makes its way in on guests, service technicians, purchases. On our luggage from baggage handlers. On our cars from car mechanics. On our bicycles. Whoever assembled it. Whoever serviced it. Much of it probably in various stages of degradation.

IE misrepresented to Judge Murphy the value of the partial matches developed from lifts of Suzanne's vehicle, Judge Lama carried them forward, and the latest judge regurgitated them.

At the time of Barry's arrest, keeping in mind they'd no such thing as a complete investigation (it's always active and ongoing, save closed cases), the partial matches run through CODIS barfed up the names of three sex offenders (the only DNA in the CODIS database are convicted felons or in some stated, accused). They weren't matches. If they were statistical matches and LE DIDN'T pursue that as leads, we could argue that the investigation was lacking. In this instance, JMO the investigation was ongoing. Certain leads exhausted, some tabled. It would be impossible, impractical, cost prohibitive, resource depleting to DNA test every male.

If they had, if they'd matched everyone in the US, they would have found statistical matches. Not the three sex offenders. Those were partial matches. KIN of the actual matches. And those individuals, Whoever they are, likely worked on Suzanne's vehicle, traveled in it, rifling in her glove box. No connection to the crime. No connection to Mother's Day Weekend, 2020. Just some people who were at some point in time close to Suzanne's vehicle and had pedestrian reason to be there.

(It's perhaps worth noting at this juncture that there's been zero evidence and zero representation that we know of which indicates that the DNA from her glove box matched DNA anywhere else, not on the bike, not on the helmet, not in the home. The glove box DNA is separate and distinct.)

The three invididuals have since been formally ruled out, their DNA NOT being a statistical match to the DNA captured from her glove box. Which makes sense. They were never in her car. Ever.

IE would very much like to pretend that LE purposefully didn't follow up on those three partial matches (some kind of rush to judgment on Barry) and any one of those three could be responsible for Suzanne's disappearance. She knows this isn't true. She knows what a partial match is. It's not a problem with the DNA collected (like an incomplete profile), it's not a limitation of science, it means that, when a full profile is sent for analysis, it will be compared at key markers to the known profiles (of inmates), yielding no matches, partial matches or statistical matches.

This sample got a return. Three individuals who DNA only partially matched. In theory, let's say it was a very close partial match, to the collected DNA profile. Parent. Cousin. Third cousin. Again, whoever left DNA in Suzanne's car isn't a felon, has no DNA uploaded to CODIS or three would have been a statistical match. The three sex offenders are actually EXCLUDED from being in her vehicle. An inconvenient truth for IE.

IMO, for TRIAL (not for arrest/probable cause or prelim/presumption but for TRIAL), I don't think IE would have been able to pull a SODDI (third party) defense. She's only drawing on wordsmithing and confusion because no evidence ANYWHERE that those three individuals were ever in Maysville and you can't have a SODDI defense without meeting the criteria for it!!! Absolutely LE, then and now, could have and would have supplied a powerful answer to such a motion, using a DNA expert to lay it out clearly in an argument for the presiding Judge. They had no such expert at the preliminary.

In any event, it's moot now. It isn't exculpatory. Except for the three men. They're innocent.

JMO
 
There is rogue DNA in every house! It makes its way in on guests, service technicians, purchases. On our luggage from baggage handlers. On our cars from car mechanics. On our bicycles. Whoever assembled it. Whoever serviced it. Much of it probably in various stages of degradation.

IE misrepresented to Judge Murphy the value of the partial matches developed from lifts of Suzanne's vehicle, Judge Lama carried them forward, and the latest judge regurgitated them.

At the time of Barry's arrest, keeping in mind they'd no such thing as a complete investigation (it's always active and ongoing, save closed cases), the partial matches run through CODIS barfed up the names of three sex offenders (the only DNA in the CODIS database are convicted felons or in some stated, accused). They weren't matches. If they were statistical matches and LE DIDN'T pursue that as leads, we could argue that the investigation was lacking. In this instance, JMO the investigation was ongoing. Certain leads exhausted, some tabled. It would be impossible, impractical, cost prohibitive, resource depleting to DNA test every male.

If they had, if they'd matched everyone in the US, they would have found statistical matches. Not the three sex offenders. Those were partial matches. KIN of the actual matches. And those individuals, Whoever they are, likely worked on Suzanne's vehicle, traveled in it, rifling in her glove box. No connection to the crime. No connection to Mother's Day Weekend, 2020. Just some people who were at some point in time close to Suzanne's vehicle and had pedestrian reason to be there.

(It's perhaps worth noting at this juncture that there's been zero evidence and zero representation that we know of which indicates that the DNA from her glove box matched DNA anywhere else, not on the bike, not on the helmet, not in the home. The glove box DNA is separate and distinct.)

The three invididuals have since been formally ruled out, their DNA NOT being a statistical match to the DNA captured from her glove box. Which makes sense. They were never in her car. Ever.

IE would very much like to pretend that LE purposefully didn't follow up on those three partial matches (some kind of rush to judgment on Barry) and any one of those three could be responsible for Suzanne's disappearance. She knows this isn't true. She knows what a partial match is. It's not a problem with the DNA collected (like an incomplete profile), it's not a limitation of science, it means that, when a full profile is sent for analysis, it will be compared at key markers to the known profiles (of inmates), yielding no matches, partial matches or statistical matches.

This sample got a return. Three individuals who DNA only partially matched. In theory, let's say it was a very close partial match, to the collected DNA profile. Parent. Cousin. Third cousin. Again, whoever left DNA in Suzanne's car isn't a felon, has no DNA uploaded to CODIS or three would have been a statistical match. The three sex offenders are actually EXCLUDED from being in her vehicle. An inconvenient truth for IE.

IMO, for TRIAL (not for arrest/probable cause or prelim/presumption but for TRIAL), I don't think IE would have been able to pull a SODDI (third party) defense. She's only drawing on wordsmithing and confusion because no evidence ANYWHERE that those three individuals were ever in Maysville and you can't have a SODDI defense without meeting the criteria for it!!! Absolutely LE, then and now, could have and would have supplied a powerful answer to such a motion, using a DNA expert to lay it out clearly in an argument for the presiding Judge. They had no such expert at the preliminary.

In any event, it's moot now. It isn't exculpatory. Except for the three men. They're innocent.

JMO
I don’t think it’s moot. I think it will come again and prosecution can explain why it isn’t pertinent to the case and defense can say why it is. But moot…I don’t think so in the legal sense.
 

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