Found Deceased CO - Suzanne Morphew, 49, Chaffee County, 10 May 2020 #66 *ARREST*

[steeltowngirl]

There weren’t any human remains. The Daily Mail took “the possible scent of human remains,” and turned it into “human remains found.”

Other news organizations then ran with it.

Thanks @MassGuy!

 

[Megnut]

The defense doesn't want the public to see Barry's face as he reacts to all of this, as he probably looks enraged and very much like a person ready to kill someone.

RSBM

I imagine he's got quite a list of people who displease him. Please that he's written 'em all down. On commissary napkins, with names and addresses and careful instructions.

We never imagined Patrick Frazee would be so stupid.

Just when I think I've seen stupid, I run into stupider.

JMO

 

[CGray123]

Attorney opinion question: would you have tried to postpone the prelim? Did the attorneys expect that hearing to go exactly the way it did, and had already known they would be going ahead with the prelim on Monday? Did they really discuss and let Barry decide, or was this just a simple advising the client and proceeding as planned? I think the bond request was just a short “my client is innocent” posturing on Eytan’s part.

I am interested in attorney views too, but I do have some experience-based thoughts to share.

1. Postponing the prelim would also postpone the proof evident or presumption great hearing and extend BM's jail time since he is only eligible to be considered for bail if the judge determines that the constitutional standard for denial of bail is not met. I have little doubt BM would object to postponement.

2. Many issues are deemed waived if they are not raised, so attorneys will argue them even if they have little hope the trial judge will agree and grant the relief they request. This also gives the prosecutor something more to worry about and may leverage later negotiations over such things as AA redaction, evidence, discovery, and other issues.

3. Colorado Rule of Professional Conduct 1.2 seems to govern the allocation of authority between attorney and client:

"Colorado Court Rules
Colorado Rules of Professional Conduct
Client-lawyer Relationship
Rule 1.2. Scope of Representation and Allocation of Authority Between Client and Lawyer.

As amended through Rule Change 2018(6), effective April 12, 2018

(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

(b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.

(c) A lawyer may limit the scope or objectives, or both, of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. A lawyer may provide limited representation to pro se parties as permitted by C.R.C.P. 11(b) and C.R.C.P. 311(b).

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

...

COMMENT

Allocation of Authority between Client and Lawyer

[1] Paragraph (a) confers upon the client the ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer's professional obligations. The decisions specified in paragraph (a), such as whether to settle a civil matter, must also be made by the client. See Rule 1.4(a)(1) for the lawyer's duty to communicate with the client about such decisions. With respect to the means by which the client's objectives are to be pursued, the lawyer shall consult with the client as required by Rule 1.4(a)(2) and may take such action as is impliedly authorized to carry out the representation.

[2] On occasion, however, a lawyer and a client may disagree about the means to be used to accomplish the client's objectives. Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters. Conversely, lawyers usually defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected. Because of the varied nature of the matters about which a lawyer and client might disagree and because the actions in question may implicate the interests of a tribunal or other persons, this Rule does not prescribe how such disagreements are to be resolved. Other law, however, may be applicable and should be consulted by the lawyer. The lawyer should also consult with the client and seek a mutually acceptable resolution of the disagreement. If such efforts are unavailing and the lawyer has a fundamental disagreement with the client, the lawyer may withdraw from the representation. See Rule 1.16(b)(4). Conversely, the client may resolve the disagreement by discharging the lawyer. See Rule 1.16(a)(3)."

DamifIno how this applies to BM's situation but it seems to say that the lawyer has implicit authority to decide on the legal/tactical/strategic means to achieve the client's objective, after conferring with the client. BM doesn't have absolute control over everything his attorneys do, but strong influence for sure. But the attorneys hold the trump card: they can withdraw from the representation over a significant disagreement. MOO, not an attorney.

 

[Bignuts45]

One of the thing at the hearing yesterday that I didn’t understand is Barry’s lawyers asking for compensation from the court. Why would the court owe them money, I didn’t follow why they would think the court would grant them those fees. Or this just another distraction tactic? Thanks in advance!

 

[CGray123]

One of the thing at the hearing yesterday that I didn’t understand is Barry’s lawyers asking for compensation from the court. Why would the court owe them money, I didn’t follow why they would think the court would grant them those fees. Or this just another distraction tactic? Thanks in advance!

MOO, they were claiming that the prosecution's discovery errors caused them to spend time they shouldn't have needed to spend. One of the sanctions in such circumstances is an award of attorney fees to the defense, paid by the prosecution. Judge Murphy wasn't ready to consider these issues without a full hearing, and that couldn't happen until November.

 

[Boxer]

One of the thing at the hearing yesterday that I didn’t understand is Barry’s lawyers asking for compensation from the court. Why would the court owe them money, I didn’t follow why they would think the court would grant them those fees. Or this just another distraction tactic? Thanks in advance!

Without any research, I would say that if they needed to hire a tech to unpack the discovery, that they are saying the court should pay for that tech.
In other words, it should be lay available.

 

[Seattle1]

I keep thinking that Barry is ticked off that he's spending all this money on the lawyers and he's not out of jail yet.

I can't decide whether I think the defense lawyers are simply posturing and being annoying in order to please him, or if they really thought this would work.

First of all, even if some evidence was produce "unconstitutionally," I've always thought the standard remedy was to ban its use, not to reduce charges or grant bail. The law is usually full of direct consequences. But the Judge was of course right.

The defense needed to say specifically which evidence fell into that category and be prepared to bring testimony. Let's say it was Barry's own utterances, which incriminate him (which he made knowingly to LE and in the course of a criminal investigation, of which he was aware and advised). Okay, so the defense needed to say that, and then testimony needed to be heard about the circumstances under which Barry uttered these things and why they are incriminating.

Instead, they had no list of such evidence and still wanted their cookie.

That's because Barry is a very difficult client. He's insisting he's innocent, he's probably insisting he didn't say the things that LE have recorded him saying. He's being framed. So he wants out immediately. This isn't helpful to his attorneys if in fact he was recorded saying those things after being asked if he understood why he was being questioned in a criminal investigation. He denies trying to influence any public officials (five are named in the charges, I believe) and yet, those events are probably recorded or sworn to by those officials (who would have to appear to dispute this). So it would be a little mini-trial (which is what the prelim is).

But Barry demands and Barry gets what he wants, so the lawyers threw together a hasty request which said

1) some of this evidence is unconstitutional (but we don't which evidence it is yet)
2) some of this evidence was given to us later than the Judge said to give it (but we can't say which evidence that is yet)
3) some of this evidence was new evidence! So we didn't have time to read it!!

To this last category, the Judge kindly explained that he had already explained to them that in an investigation, more evidence could be produced at any time and he expected both sides to comply with the law (and share it ASAP - which the prosecution did, said the judge; Judge Murphy said he'd received the new evidence as well).

I felt like he was instructing students in the law. "Bring a list of which evidence, provide testimony as to why it should be thrown out," and certainly not "If you find a problem with some of the evidence, that means your client gets bail!"

Surely the defense lawyers know that. Was this just a ploy to once again mention he is innocent? Dumb, IMO.

To the second category of evidence (late), he said, "Can't we just deal with it as it comes up in the prelim?" And he held the ultimate card.

He offered to hold a full hearing on their evidentiary concerns sometime in November (and we all know how the courts get in November, with Veterans Day and Thanksgiving cutting into the schedule already). Then he said he'd reschedule the prelim "after that." But I bet you lasagnas that it would end up being January because the court will surely be dark the last week in December and the Judge will surely be tying up loose ends from the several other already ongoing trials he's conducting. The defense attorneys knew that too. So...maybe December, maybe January - the Judge knows it's up to him.

So if the evidence isn't enough to hold Barry for trial on First Degree Murder, Barry can either find out during August (and according to Barry, walk free on August 25th) OR he can walk free sometime in December, January or even February). If charge is reduced to Second Degree, bail could still be significant, given the other charges and the flight risk. None of that is going to happen, IMO.

The defense doesn't want the public to see Barry's face as he reacts to all of this, as he probably looks enraged and very much like a person ready to kill someone.

Did anybody watch the Betty Broderick trial or the made for TV movies about the same? I love watching high-priced defense lawyers defending the well-heeled-- especially the theatrics they bring to the courtroom.

In Betty's trial, it was stunning to see the Broderick family portrait smashed to the floor and the sound of glass shattering just as the defense said that this was exactly what Daniel Broderick did to Betty and his family when he left her for his legal assistant. But after you've seen the glass shattering action once, it loses both its appeal and the surprise factor when repeated a second or third time.

That's where I am with BM's high-powered defense firm. I took notes during the July 22 hearing and recall when Attorney Iris asked Judge Murphy's permission to make an oral argument to the court. Although he made her wait, Judge Murphy granted her request where Attorney Iris wasted not 30 seconds before pontificating about the "constitutional violations" her client was suffering, due all in part of the prosecutor failing his duty to provide his defense the discovery evidence that was keeping BM jailed inside a cage!

In response, Judge Murphy reminded attorney Iris that while the Constitution provides for the accused to introduce favorable evidence to discredit the government's claim against them, the Constitution does not govern or trump the Colorado rules of discovery provided for in Rule 16 (Colorado Rules of Criminal Procedure - Rule 16: Discover and Procedure Before Trial).

If anything, and in my opinion only, Attorney Iris wanted Judge Murphy to know that she's no public defender, and she's studied every constitutional argument and effective trial defense strategy to foil evidentiary privileges, and was putting the prosecution (and the Court) on guard. Prosecutor Lindsey didn't blink. And Judge Murphy essentially reminded Attorney Iris he knows the difference between exculpatory evidence, and Rule 16 covering the Prosecutor's Performance of Obligations.

So we have to ask ourselves: does the state have any evidence that is favorable to the defense? Is the state withholding this evidence from BM and his team? If your answer is no, you can ignore the next time you hear "constitution violation" from team E&N!

Relative to the similar repeat performances by Attorney Iris seeking bail release for BM, this is all a show for BM's hard-earned dollars. It's very clear that a Colorado defendant charged with first-degree murder (capital murder) is not eligible for release on bond unless the state fails with PEPG.* I don't believe this is going to happen-- just as it didn't happen for Chris Watts, Patrick Frazee, Donte Lucas, Leticia Stauch, etc.,.... MOO

*CO - CO - Suzanne Morphew, 49, Chaffee County, 10 May 2020 #64 *ARREST*

 

[Scootie98]

Well, let’s see. Dulos went home to take himself out. Technically, BM appears to be homeless. Where would he go? Perhaps he would go to stay with his family. Would he further traumatize his daughters in an act of despair? It would solidify an admission of his guilt in the minds of many people.

I am more inclined to think BM would skip town if given the chance. Possibly be a threat to others involved with the case.

jmo

Nah....I see Barry ending up exactly like William H. Macy did in the movie Fargo....on the run....only to get cornered in some obscure, cheap motel...getting dragged out, kicking and screaming.

 

[steeltowngirl]

Did anybody watch the Betty Broderick trial or the made for TV movies about the same? I love watching high-priced defense lawyers defending the well-heeled-- especially the theatrics they bring to the courtroom.

In Betty's trial, it was stunning to see the Broderick family portrait smashed to the floor and the sound of glass shattering just as the defense said that this was exactly what Daniel Broderick did to Betty and his family when he left her for his legal assistant. But after you've seen the glass shattering action once, it loses both its appeal and the surprise factor when repeated a second or third time.

That's where I am with BM's high-powered defense firm. I took notes during the July 22 hearing and recall when Attorney Iris asked Judge Murphy's permission to make an oral argument to the court. Although he made her wait, Judge Murphy granted her request where Attorney Iris wasted not 30 seconds before pontificating about the "constitutional violations" her client was suffering, due all in part of the prosecutor failing his duty to provide his defense the discovery evidence that was keeping BM jailed inside a cage!

In response, Judge Murphy reminded attorney Iris that while the Constitution provides for the accused to introduce favorable evidence to discredit the government's claim against them, the Constitution does not govern or trump the Colorado rules of discovery provided for in Rule 16 (Colorado Rules of Criminal Procedure - Rule 16: Discover and Procedure Before Trial).

If anything, and in my opinion only, Attorney Iris wanted Judge Murphy to know that she's no public defender, and she's studied every constitutional argument and effective trial defense strategy to foil evidentiary privileges, and was putting the prosecution (and the Court) on guard. Prosecutor Lindsey didn't blink. And Judge Murphy essentially reminded Attorney Iris he knows the difference between exculpatory evidence, and Rule 16 covering the Prosecutor's Performance of Obligations.

So we have to ask ourselves: does the state have any evidence that is favorable to the defense? Is the state withholding this evidence from BM and his team? If your answer is no, you can ignore the next time you hear "constitution violation" from team E&N!

Relative to the similar repeat performances by Attorney Iris seeking bail release for BM, it's very clear that a Colorado defendant charged with first-degree murder (capital murder) is not eligible for release on bond unless the state fails with PEPG.* I don't believe this is going to happen-- just as it didn't happen for Chris Watts, Patrick Frazee, Donte Lucas, Leticia Stauch, etc.,.... MOO

*CO - CO - Suzanne Morphew, 49, Chaffee County, 10 May 2020 #64 *ARREST*

I’m not a lawyer, and the legal aspect of this case will be complex, so I’m loading up on aspirin in addition to lasagna.

But here goes with my laymen’s question.

If the exculpatory evidence exists, why does defense need the prosecution to give it to them? Can’t they introduce the evidence on their own?

It sounds to me like BM’s defense is just throwing mud at the wall and see what sticks. But I’m interested in learning a lot during this prelim.

 

[MassGuy]

I’m not a lawyer, and the legal aspect of this case will be complex, so I’m loading up on aspirin in addition to lasagna.

But here goes with my laymen’s question.

If the exculpatory evidence exists, why does defense need the prosecution to give it to them? Can’t they introduce the evidence on their own?

It sounds to me like BM’s defense is just throwing mud at the wall and see what sticks. But I’m interested in learning a lot during this prelim.

The defense can go out and gather their own evidence, but they’d still want everything the prosecution has as well.

There may be interviews conducted by law enforcement that somehow favor Barry, or other evidence collected and analyzed that also helps the defense’s case.

One example would be any DNA evidence, which may include unidentified contributors. If you recall the Berreth case, there was quite a bit of foreign DNA evidence found.

That actually happens a lot.

 

[Seattle1]

Somebody asked earlier about when BM had to notify the prosecution with any TOD defense (the other dude did it). The disclosure date is typically established at the arraignment (follows the preliminary hearing):

[..]

(c) Nature of Defense.
Subject to constitutional limitations, the defense shall disclose to the prosecution the nature of any defense, other than alibi, which the defense intends to use at trial. The defense shall also disclose the names and addresses of persons whom the defense intends to call as witnesses at trial. At the entry of the not guilty plea, the court shall set a deadline for such disclosure. In no case shall such disclosure be less than 35 days before trial for a felony trial, or 7 days before trial for a non-felony trial, except for good cause shown. Upon receipt of the information required by this subsection (c), the prosecuting attorney shall notify the defense of any additional witnesses which the prosecution intends to call to rebut such defense within a reasonable time after their identity becomes known.

(d) Notice of Alibi.
The defense, if it intends to introduce evidence that the defendant was at a place other than the location of the offense, shall serve upon the prosecuting attorney as soon as practicable but not later than 35 days before trial a statement in writing specifying the place where he or she claims to have been and the names and addresses of the witnesses he or she will call to support the defense of alibi. Upon receiving this statement, the prosecuting attorney shall advise the defense of the names and addresses of any additional witnesses who may be called to refute such alibi as soon as practicable after their names become known. Neither the prosecuting attorney nor the defense shall be permitted at the trial to introduce evidence inconsistent with the specification, unless the court for good cause and upon just terms permits the specification to be amended. If the defense fails to make the specification required by this section, the court shall exclude evidence in his behalf that he or she was at a place other than that specified by the prosecuting attorney unless the court is satisfied upon good cause shown that such evidence should be admitted.

Rule 16 - Discovery and Procedure Before Trial, Colo. R. Crim. P. 16

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

 

[DizzyB]

I watched every single courtroom day of the OJ Simpson trial, and I saw what a high powered defense team can do. I was impressed by Barry Scheck, and I watched him brilliantly muddy the waters of the evidence. I think a lot of the trial isn’t going to be about what Barry did or did not do. It’s going to be about motions, suppression of evidence, pointing out every mistake of law enforcement, and searching for any misstep that can legally pave the way to get their client off.

 

[steeltowngirl]

The defense can go out and gather their own evidence, but they’d still want everything the prosecution has as well.

There may be interviews conducted by law enforcement that somehow favor Barry, or other evidence collected and analyzed that also helps the defense’s case.

One example would be any DNA evidence, which may include unidentified contributors. If you recall the Berreth case, there was quite a bit of foreign DNA evidence found.

That actually happens a lot.

Oh boy. Here we go. First it was the mountain lion. Next will be some random unknown person. Like the one-armed man in the Fugitive.

 

[Momofthreeboys]

Oh boy. Here we go. First it was the mountain lion. Next will be some random unknown person. Like the one-armed man in the Fugitive.

I am not expecting that but two times, once in each motions hearing, the defense has mentioned Brady evidence…but as pointed out they have not elucidated what they think exactly is Brady evidence. At first I thought maybe the pen since the prosecution “seemed” somewhat unfamiliar with the enhanced version. If there is Brady evidence no doubt it will come out during the next 4 court dates.

 

[Seattle1]

I’m not a lawyer, and the legal aspect of this case will be complex, so I’m loading up on aspirin in addition to lasagna.

But here goes with my laymen’s question.

If the exculpatory evidence exists, why does defense need the prosecution to give it to them? Can’t they introduce the evidence on their own?

It sounds to me like BM’s defense is just throwing mud at the wall and see what sticks. But I’m interested in learning a lot during this prelim.

Yes, the defense has made a lot of misstatements during the discovery motions hearings.

Exculpatory evidence is where the Fifth Amendment comes in that it protects a defendant's right to due process and their right to cross-examine his/her own witness in order to elicit evidence exculpatory to a defendant.

The prosecution has to provide exculpatory evidence to the defense -- even if it's not requested.

I think BM's defense is calling on the prosecution to provide the evidence if they have it because the burden to prove the defendant guilty is on the government (not the defendant prove his/her innocence).

 

[borndem]

RSBM

I imagine he's got quite a list of people who displease him. Please that he's written 'em all down. On commissary napkins, with names and addresses and careful instructions.

We never imagined Patrick Frazee would be so stupid.

Just when I think I've seen stupid, I run into stupider.

JMO

bbm
You said ie, @Megnut. "Stupid is, as stupid does," right?!
The ones who act so slick are actually greasy and oh, it shows; the ones who have performed the "perfect murder" are usually the ones where LE just piles up lots of solid evidence; the "I couldn't have done it, and here's why" statements are put into a large bucket named "1st Degree Murder" evidence.
It's really tuff, IMO, for one self-known "smart" person to go up against several LE detectives; fingerprint, blood, and M.E. professionals; and DA's who have around 100 years of combined experience. Like being slammed against a brick house -- splat, whimper.
We'll see how this one goes, won't we?

 

[Seattle1]

I am not expecting that but two times, once in each motions hearing, the defense has mentioned Brady evidence…but as pointed out they have not elucidated what they think exactly is Brady evidence. At first I thought maybe the pen since the prosecution “seemed” somewhat unfamiliar with the enhanced version. If there is Brady evidence no doubt it will come out during the next 4 court dates.

^^bbm

We've recently had a lot of refresher on "Brady" when Mollie Tibbetts convicted killer wanted a new trial.

I think I can add some clarity here after the prosecution has cited more than once that they are dependant on numerous agencies including CCSO, CBI, and FBI still providing evidence in this case.

Rightfully so, the defense is not excusing the prosecution here:

The Supreme Court has also held that Brady suppression occurs when the government fails to turn over even evidence that is 'known only to police investigators and not to the prosecutor.' . . . '[T]he individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government's behalf in the case, including the police.'

https://tile.loc.gov/storage-services/service/ll/usrep/usrep514/usrep514419/usrep514419.pdf

 

[Murphy1950]

@Seattle...Thanks! Can't say how much your continued input has been so appreciated. I keep learning.
I've been thinking all day "what would it take? for the defense to get my attention. Short of CCTV of Suzanne leaving on her bike I can't think of a thing. Times have changed, for example, unless they spoke with her, and were highly credible people to begin with, eye witness testimony wouldn't cut it.

 

[SouthAussie]

Just a Reminder!!

I shall be posting the tweets from Ashley Franco during the morning session - someone else will probably have to take over as it will past my bedtime when the afternoon session restarts. Also for Tuesday I shall post the tweets.

Anyone else volunteering to do other people's tweets??

I volunteer to read all of the posted tweets.

(Because it will be late night here when the Prelim starts, and us Aussies will miss the live event. So we will very much appreciate all the posting that happens. Thank you in advance.)

 

[Scootie98]

Regarding the communications on Sunday, at some point the girls contacted their friends' step mother regarding Suzanne, so they weren't completely out of cell range at all times IMO.

I just have a feeling that Barry's cell phone activity on Saturday and Sunday is going to look completely out of the norm....Not reflecting what a reasonable person would do. How and when he returned phone calls, in what order. For example, if his daughters tried to call him....did he answer immediately? Or, did he call someone else before returning his daughters phone call? And why didn't he immediately contact the authorities in Salida directly ? Wouldn't that make sense? So Barry's cell phone activity, how he prioritized and responded to communications will come across as a real head scratcher, i.e if viewed with normalcy.