Found Deceased CO - Suzanne Morphew, 49, Chaffee Co, 10 May 2020 #100 *Case dismissed w/o Prejudice*

[mrjitty]

RSBM. After my previous post, it occurred to me that there is a judicial doctrine similar to res judicata that may factor into a court's decisions about a subsequent filing.

It's called "the law of the case." Under the law of the case doctrine, once a court decides an issue, the same issue may not be re-litigated in subsequent proceedings in the same case (e.g., after a successful appeal on another issue).

I have not seen this doctrine applied under the circumstances of the Morphew case. One obvious issue will be whether the subsequent filing is "the same case" for purposes of applying the doctrine.

As usual, you have raised an interesting point and advanced the discussion.

I know essentially zero about obscure Colorado procedure to contribute to the discussion, other than a general observation.

I believe the next court to see this case with have a broad jurisdiction to ensure that the prosecution is not doing an end run around previous rulings.

So to my mind, the admissibility rulings around DV might be carried over as that was a finding reached by the court after arguments in this case - unless there is substantial new evidence. Whereas the sanctions might be regarded as cured - they did not relate to the content of the evidence but were a punishment in proceedings which were dismissed.

One would certainly expect difficult and intense arguments on these points - presumably both when/if the case is refiled, and potentially pre-trial after any prelim?

 

[mrjitty]

Thanks for your response @CGray123, and the res judicata link providing for both voluntary and involuntary dismissals.

Also, under common law, the doctrine of res judicata bars not only what was actually decided in the first action but also whatever could have been decided.

To be clear, I DO NOT believe the prosecution's decision to dismiss the case without prejudice was based on bad faith.

I believe Dan May was very clear that in his opinion, the "uphill battle" was specific to getting the judge to agree to allow the previously court-barred experts to testify -- and not overcoming claims of bad faith. (See Court Order [D-17] linked below).

Specific to this case, while the prosecution requested reconsideration of the court sanctions ordered by the court, IMO, as Dan May also implied, the proper remedy to remove the obstacle from clouding the retrial was for the higher court to reverse the Court Ordered sanctions that prohibited 14/16 expert witnesses from testifying at the trial.

While the Colorado Supreme Court may have refused to hear the prosecutor's petition, I believe the prosecution had a very strong case for the higher court's consideration-- given that IMO, the district court's Order for sanctions was essentially the equivalent of dismissing the prosecution's case.

Since I previously stated that I was not going to cite applicable Colorado Rules of Criminal Procedure-- or any rules for that matter, I don't have a problem with OP disagreeing with my modern view and/or interpretation of res judicata doctrine promoting fairness, especially since I think Dan May's specific reference to the court-barred experts (and not bad faith) aligns with my interpretation here (and where the dismissal by the prosecution wasn't necessarily voluntary).

ORDER RE: [D-17] DEFENDANT’S RENEWED MOTION FOR DISCOVERY AND CONTEMPT SANCTIONS AND FORTHWITH HEARING; [D-17A] SUPPLEMENT; [D-17B] SUPPLEMENT; [D-17C] SUPPLEMENT; AND [D-17D] SUPPLEMENT.

https://www.courts.state.co.us/userfiles/file/Court_Probation/11th_Judicial_District/Freemont/Morphew/ORDER RE_ DEFENDANT'S RENEWED MOTION FOR DISCOVERY AND CONTEMPT SANCTIONS AND FORTHWITH HEARING [D-17A] SUPPLEMENT [D-17B] SUPPLEMENT [D-17-C] SUPPLEMENT AND [D-17D] SUPPLEMENT.pdf

However you look at it, that ruling would probably end up before the Supreme Court one way or the other... ie in the first instance court does not carry them over, then the defence will appeal?

To me the prosecution likely needs substantial new evidence or at least to be able to point to significant endeavours to get the charges refiled - then as you say, they stand a good chance arguing against the sanctions either in the refiling at first instance or on appeal.

 

[susiQ]

This time of year, our younger grandchildren get the “Sublimation” tutorial “See kids, the snow isn’t melting and leaving a puddle, it’s evaporating!”

May the sun shine warm and bright on you Suzanne and may sublimation take place at an alarmingly quick rate this year in CO. Barring that, may it rain like Noah’s flood just long enough to make that snow disappear. Keep the searchers safe from harm and may they bring Suzanne home to her family. May her loved ones find peace after two years of torture inflicted by that excuse for a husband.

May the fleas of a thousand camels infest his armpits! It gives me such pleasure knowing Bare is aware that they are continuing the search and feel close to locating Suzanne. I hope he develops major anxiety. I’ve even mused that LE will set up a decoy search site just to make him think he’s home free and then, BAM, they find her and on go the shackles once more. No CODIS, no bond?? That would be the icing on the cake. JMHO.

 

[BeckyF]

sbm. Simplest answer is they assessed they were likely to lose on appeal.

Of course they did.

 

[mrjitty]

Prosecutors do this frequently (fail to disclose discovery or experts in a timely manner). I guess this judge wasn’t going to allow it.

It sucks. But it’s a serious due process issue.

Thanks @gitana

I was wondering about this because in the McStay case both sides were outrageously late on discovery of expert reports - including discovery of a defence report as the expert was taking the stand.

I found it bizarre, but the Judge exercised extreme patience in that instance, leading me to wonder if this was more common than i expected.

As @Seattle1 has pointed out, in this case, the issue seems to be more the defacto dismissal of the case by the Judge by way of sanction (effectively forcing the prosecution to seek dismissal) rather than the imposition of sanctions in general.

For instance I don't see why the phone and telematics expert evidence would be sanctioned other than to intentionally gut the case. It doesn't reflect the nature of the specific misconduct.

 

[mrjitty]

sbm. Simplest answer is they assessed they were likely to lose on appeal.

I think the simplest answer is actually the one in the motion.

They expect to find the body, in which case the appeal still doesn't help them.

 

[MemPat]

This time of year, our younger grandchildren get the “Sublimation” tutorial “See kids, the snow isn’t melting and leaving a puddle, it’s evaporating!”

May the sun shine warm and bright on you Suzanne and may sublimation take place at an alarmingly quick rate this year in CO. Barring that, may it rain like Noah’s flood just long enough to make that snow disappear. Keep the searchers safe from harm and may they bring Suzanne home to her family. May her loved ones find peace after two years of torture inflicted by that excuse for a husband.

May the fleas of a thousand camels infest his armpits! It gives me such pleasure knowing Bare is aware that they are continuing the search and feel close to locating Suzanne. I hope he develops major anxiety. I’ve even mused that LE will set up a decoy search site just to make him think he’s home free and then, BAM, they find her and on go the shackles once more. No CODIS, no bond?? That would be the icing on the cake. JMHO.

Maybe Bare, like Scott Peterson will be watching from his car (or some random piece of equipment) when LE pulls Suzanne from her grave where her remaining journals were nestled close by wrapped in a brown towel!

In the best of all worlds Lauren and her microphone will be close by as those shackles hit Barry's manly, tanned ankles. He'll still be in an undershirt (his real clothes having been lost to the dumpsters) as he yells, "It's too soon!"

Those now-wealthy defense attorneys can be throwing dollar bills into the air as they make kissing sounds while elks, chipmunks and mountain lions dance in a circle. Snow Ice Cream will be served at the Daily-Mail-sponsored booth by cute chicks from Salidas.

<modsnip>

 

[gitana1]

I hate that the prosecution missed deadlines. I wonder if this judge would have let it slide were it not for the defense calling it all out? And even so, why such harsh sanctions? He has to know Barry is guilty.

Yes. He likely would’ve done nothing if the defense hadn’t complained.

The sanctions were harsh because the state was warned. I actually like this decision, even though I think Barry is guilty as sin and I want to see him convicted and sentenced to life. Because due process is a cornerstone of our American justice system. And to see a judge enforce the law regardless of his feelings about the defendant’s guilt means that he truly values the principles of the US Constitution.

 

[Lyanna]

If Suzanne is close by, under the snow pack, Barry is not sleeping well tonight. However, if she is in another location, Barry enjoyed his steak dinner and is sleeping like a baby. I wish the state had been less specific.

Maybe they took a leaf out of Barry and Iris' books - misdirection?
Could be wishful thinking on my part there though

May is approaching, last May Barry was arrested, fingers crossed this May, Suzanne is found.

 

[KBlackRabbit]

Nah. Didn’t happen that way. But you have your opinion.

Except it did happen that way. Withholding discovery information and blowing deadlines, intentional or not, is a sanctionable violation and if left unchecked it does lead to abuse by the state. The prosecution repeatedly failed to meet deadlines and didn’t turn over discovery information. That’s not an opinion, it’s stated in court documents. Have a nice day.

 

[gitana1]

Would the defense be slacking on the job is they did not mention on the record discovery violations (real or imagined) by the prosecution? If a protest or objection is not made doesn’t that mean no appeal later on the discovery violation?

Yes to both.

 

[Lyanna]

BIB

I also agree. I think that having gutted the case, the Judge anticipated that the prosecution would have to file for a dismissal, which gives him an off ramp and also allows a potential reset of this mess.

I don't believe the Judge to be corrupt or pro-defence (though I think his lack of knowledge of the history of the case showed). The expert evidence discovery was in a mess this close to trial and the best thing is to start again.

Can't help but think, Judge Lama gave Prosecution an 'out' by citing the People v Daley case, or DA LS follows Websleuths and read @Seattle1's posts

 

[gitana1]

Wouldn’t the same reasoning work as it does with double jeopardy? With double jeopardy, once the jury is seated, the state can’t dismiss and start over, even if later down the road they find new evidence.

MOO

No. The case hadn’t even started.

 

[gitana1]

This man is guilty and he is a murderer. I will worry about his rights the day he confesses and appears to worry about Suzanne’s life that he took.

I’m not worried about HIS rights. I’m worried about every American’s rights.

 

[gitana1]

My question is, did the DA do this on purpose, or are they just clueless on what the rules are? And if they are clueless, when then are they DA's?

They know the rules. I haven’t followed this closet enough lately to know if this was purposeful. But I know that it’s routine for the state to hand over evidence or divulge experts at the last minute, on purpose, as a tactic. The thing is, they almost always get away with it, which is why they do it.

I don’t know of a case in which they haven’t gotten away with it except this one.

ETA: I really hate dirty pool. And this kind of thing is dirty pool. I don’t practice law that way and I don’t think any attorney should.

 

[gitana1]

Thanks, @Cindizzi for linking the actual article by the reporter interviewing former DA Dan May.

Without referencing the Colorado Rules of Criminal Procedure, but only based on common law doctrine (res judicata), I agree with May's assessment that prosecutors face an uphill battle moving forward (by not first appealing to the Colorado Supreme Court to seek reversal of Judge Lama's sanctions eliminating 14/16 expert witnesses).

More specifically, the DA requested charges dismissed after the preliminary hearing and BM bound over for trial.

The dismissal, only days before the trial was set to commence, is not a complete do-over.

To be clear, make no mistake that even though the trial court did not find that the state prosecutor deliberately violated or failed to comply with any orders or deadlines, and did not find that the prosecutors' reasons for voluntary dismissal were pretextual, ....

Common law provides (protect the accused from discrimination and oppression) that the court must ensure that the state did not use its right to voluntarily dismiss the charges to avoid the consequences of the court's rulings on the motions in limine, to avoid the barring of prosecution's witnesses and evidence occasioned by the prosecutor's failure to disclose pursuant to Rule 16.

IMO, defense attorney IE's allegation that the prosecutor's motion (without prejudice) to be able to refile the case was because the prosecutor's intent was to obtain a different judge (i.e., judge shopping), I believe IE's statement should further serve as the defense's warning that they will fight tooth and nail that the court considers to "reimpos[ing] the sanctions" entered in the state's original action. . . hence an "uphill battle" for the prosecution to get the judge to agree to allowing the experts to testify.

MOO

Res judicata - Wikipedia

In common law jurisdictions, the principle of res judicata may be asserted either by a judge or a defendant.

Once a final judgment has been handed down in a lawsuit, subsequent judges who are confronted with a suit that is identical to or substantially the same as the earlier one will apply the res judicata doctrine to preserve the effect of the first judgment.

Rule 7 - The Indictment and the Information, Colo. R. Crim. P. 7 | Casetext Search + Citator

When exercising its discretion in deciding whether to permit the direct filing of an information, the district court is required to balance the right of the district attorney to prosecute criminal cases against the need to protect the accused from discrimination and oppression. Holmes v. District Court, 668 P.2d 11 (Colo. 1983); People v. Sabell, 708 P.2d 463 (Colo. 1985).

You know, I don’t think that legal principle would apply here and prohibit a different outcome when it comes to experts’ ability to testify at a future trial.

 

[Boxer]

Thanks @gitana

I was wondering about this because in the McStay case both sides were outrageously late on discovery of expert reports - including discovery of a defence report as the expert was taking the stand.

I found it bizarre, but the Judge exercised extreme patience in that instance, leading me to wonder if this was more common than i expected.

As @Seattle1 has pointed out, in this case, the issue seems to be more the defacto dismissal of the case by the Judge by way of sanction (effectively forcing the prosecution to seek dismissal) rather than the imposition of sanctions in general.

For instance I don't see why the phone and telematics expert evidence would be sanctioned other than to intentionally gut the case. It doesn't reflect the nature of the specific misconduct.

Is there any other case like this?

 

[Nikynoo]

For instance I don't see why the phone and telematics expert evidence would be sanctioned other than to intentionally gut the case. It doesn't reflect the nature of the specific misconduct.

SNB for focus. If the prosecution intends to rely on expert evidence for the phone and telematics, presumably, in the form of reports, those reports need to be completed and handed to the defence so that they can cross examine that witness and instruct their own experts if necessary.

It appears that, despite the Judge extending the deadline (and making it clear that further extensions would not be forthcoming), those reports were not forthcoming. Bearing in mind the looming trial start date, what other choice did the Judge have other than excluding those experts?

To my mind, these reports should have been at least in draft form when charges were filed and worked up if and when other evidence became available. It also could be that the final reports were not actually helpful to the prosecution.

In any case, should charges be filed in the future, especially if they do find Suzanne, it may reshape the direction in which the prosecution pursues this case, bringing in new/different experts and evidence.

What would disappoint me is if Linda Stanley does not learn from the mistakes made over the last 12 months.

 

[DeDee]

Anyone know where the washed out road goes?

The route he said the elk take.

What's 6 miles down that path?

If memory serves me properly when the body hasn't slept, @OldCop has a map of that very washed out road. If he's around, I'm sure he'll dig it out of his mighty fine collection of maps and other places of interest for this important purpose. Another excellent idea, Megnut!

We can mark X's on the map of the places the searchers and the diggers should go. Didn't someone suggest Barry utilize his Bobcat for this very purpose? Surely, he'd be more than willing to help find his wife and mother of Suzanne's children if the spots are marked for him. Maybe there will be suspiciously trees planted near awkwardly placed boulders found where an X marks the spot.
.

 

[WingsOverTX]

RSBBM

For instance I don't see why the phone and telematics expert evidence would be sanctioned other than to intentionally gut the case. It doesn't reflect the nature of the specific misconduct.

THIS ^^^^^

You have succinctly identified why some of us are so critical of Judge L. Proportionality is very much at play here, IMO.

And the "why" demands an answer. Unfortunately, I don't think we are likely to get one.

JMHO

ETA: Screenshot of original post I am quoting