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

[CGray123]

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 consider 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).

As I have said before, I do believe the prosecution will have a burden to overcome if it files charges again (overcoming claims of bad faith). I agree with you to that extent.

However, I respectfully submit that the hill the prosecution must climb will not be related to the doctrine of res judicata. This doctrine applies to cases that have been decided on the merits after a trial, which did not happen in BM's case. Voluntary dismissals are expressly excluded from the scope of the doctrine. (Legal Information Institute)

 

[BDAJAG]

That is not what the prosecution states. They say that they *think* they know where the body is, but adverse weather conditions mean that they cannot recover said remains. We shall see.

________________________________________

Uhh...

But of course, they think they know.

• They can't 'know they know'.
• They could say, 'they know they think' - altho' many here have expressed doubts in that regard... in which case, said doubting sleuthers may -imho- quite fairly roll their collective eyes and sigh/ curse],
• 'They think they're thinking'...

... but I'm thinking they're just actually confused.
​

 

[Trebor5591]

I have never seen them dress in a way I would have thought appropriate for attending court. I think they way they have chosen to dress lacked respect and was deliberate.

I agree that BM shows a lack of respect in his dress, wearing a tight T shirt to court. His dress reveals a degree of immaturity and great pride in his muscular torso, not at all appropriate to display in court. The three females are dressed OK, IMO.

 

[CGray123]

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).

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.

 

[BDAJAG]

I mean misleading the court is just par for the course these days right?

VR C by
course marshal
[BDAJAG]
who's most appreciative of
your pace of play!​

___________________________________________

While it might not yet be par, ...
...I've no quarrel with describing such chicanery as "cart golf"!

I.e., So closely matching your opposite, shot for shot, that matters can turn nitty when it comes to who drives...the cart!

​

 

[susiQ]

That's how he dressed for court? The James Dean look?

I'm looking forward to seeing a side by side of this picture and one of him after Suzanne's body is found and he is arrested again.

One word,
MIPPLES

 

[mom2chloe]

The size of the needle sheath would put that into question. I believe it is 3 inches long, which would be very large for an insulin needle.

JMO

Insulin needles are tiny and that particular injection is given beneath the skin also known as a subcutaneous injection. I did several rounds of IVF many years ago and one of the medications during each cycle was subcutaneous and painless. Beneficial also because you vary the injection site. My husband dropped his gun last October accidentally shooting himself in the shin. He was required to take blood thinners for the first 30 days again through a tiny subcutaneous needle. He hates needles of any kind but managed to administer all but the first couple himself.
There is no truth to that needle in evidence being a diabetic needle. I wouldn’t wish an autoimmune disorder on anyone with the exception of Barry Morphew. He may have, under the stress of circumstances he created, developed an autoimmune type of diabetes or another autoimmune disorder but we would never know because his health information is privileged. He and his defense team continue to lie. IMO

 

[BDAJAG]

Misleading the public would be an extremely prejudicial move. So if this is more tactical than true, sanctions should roll down on Stanley, et al.
JMHO

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I should think - just as claiming a tax deduction - "good faith" generally averts sanctions.

But ico my (required) tax course(s) @ USD Law ... well: !
So I'm ok w/ being 'disallowed' by present company in this thinking ^.

 

[Boxer]

I told you guys as soon as I saw the DA's press conference, she was in way over her head. I think this dismissal proves it.

Yes.
Hoped all along that the impression she was not up to the task would be would be wrong.

 

[gitana1]

Let's really call a spade a spade. Judge L gutted their expert testimony. He basically threw out their very good circumstantial case by leveling sanctions that make a mockery of justice. I'd like to know WHY? And where is the precedent for such a pro-defense move by a criminal court judge? He knew what he was doing.

The circumstantial evidence in totality is damning. I'm puzzled if you have been following this case and don't see that. It was a case without a body. If that changes, so do more of BM's prospects for a sunny beach in Costa Rica. If it was a bluff, the DA is another wrongful player in what should be a serious pursuit for justice, not a pawn game.

JMHO

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.

 

[DizzyB]

I agree that BM shows a lack of respect in his dress, wearing a tight T shirt to court. His dress reveals a degree of immaturity and great pride in his muscular torso, not at all appropriate to display in court. The three females are dressed OK, IMO.

Amazing that the only person inappropriately dressed for court is the defendant.

 

[Pyrite]

There's a lot of blame to go around on both sides in this case that got us to where we are.

But to say any of the behaviors were so egregious they merit letting a man who obviously disappeared his wife go free is simply absurd, IMO.

Addressing any errors or misconduct can be done by an astute judge without harm to justice. And even if one thinks Barry is innocent after careful review of currently known evidence, a fair-minded person would want it tested before a jury before letting him walk free.

What defendant in a capital case with domestic abuse has ever walked just because of the kind of errors seen here?

The errors would have to arise to the level of criminal action or intent for that to happen, IMO.

And they don't from what we know.

Just because things get messy in an imperfect world that includes unforseeable pandemic impacts, is no reason the need and right for justice to be declared null and void.

Mooooooooing loudly from outside a Colorado criminal courtroom closed to all except those present in person - the greatest injustice of all.

What, in your opinion, would have been the proper sanctions for the discovery violations and missing court deadlines more than once? The Prosecution was basically taking 2 weeks, 1 day away from the defense investigating the prosecution’s 16 expert witnesses during the last 2 months (if my memory serves) before the trial.

MOO

 

[katydid23]

And of course, Lauren knows the real facts and Iris does not?

I don't think she will, but we shall see.

Iris may know the real facts, but she wasn't sharing them with the public. She was shouting out 'defense rumours' that were used to try and put up a false narrative, imo.

 

[mom2chloe]

Amazing that the only person inappropriately dressed for court is the defendant.

Sadly you can bet that if Suzanne were still around and the circumstances weren’t what they are she would have made sure Barry was dressed appropriately. He is shameless.

 

[O.Incandenza]

Maybe the State could have overwhelmingly proved their case if the judge wasn't so dead set on gutting their case. Doesn't it make you wonder why?

If the judge was as dead set on getting Barry off as this thread seems to believe, he would have just dismissed the case with prejudice or forced the prosecution to go to trial.

The prosecution's case was gutted because, despite the expert witnesses being admittedly crucial to their case, they missed the deadline to file expert reports. They then went to the judge and asked for an extension. He granted it to them, but warned them they would not get another. They then missed that second deadline.

This isn't some minor technical slip-up. The natural sanction for not qualifying your expert witness is for your expert witness to be excluded. It's hard for me to blame what happened on anyone but the prosecution. I just can't quite comprehend how they let something so important fall through the cracks completely.

Luckily, the judge gave them a second chance and we'll just have to hope they get their act together. Or even better, bring in someone else to run the case and do it right.

 

[GatorFL]

There's a lot of blame to go around on both sides in this case that got us to where we are.

But to say any of the behaviors were so egregious they merit letting a man who obviously disappeared his wife go free is simply absurd, IMO.

Addressing any errors or misconduct can be done by an astute judge without harm to justice. And even if one thinks Barry is innocent after careful review of currently known evidence, a fair-minded person would want it tested before a jury before letting him walk free.

What defendant in a capital case with domestic abuse has ever walked just because of the kind of errors seen here?

The errors would have to arise to the level of criminal action or intent for that to happen, IMO.

And they don't from what we know.

Just because things get messy in an imperfect world that includes unforseeable pandemic impacts, is no reason the need and right for justice to be declared null and void.

Mooooooooing loudly from outside a Colorado criminal courtroom closed to all except those present in person - the greatest injustice of all.

BBM: OJ Simpson, and those prosecutors had solid DNA evidence. Never underestimate the influence a great defense team can have over a totally inept prosecution.

 

[O.Incandenza]

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.

Right. I think Barry is guilty as sin. But one of the main ways that false convictions happen is through bad expert witness testimony (bite mark evidence, burn pattern evidence, etc). If the prosecution isn't disclosing who their experts are and what they're going to testify to, it puts the defense at a huge disadvantage because they can't effectively challenge the qualifications of those experts or rebut their testimony.

Now I don't think those concerns apply to the witnesses the prosecution wanted qualified in this case, but the judge doesn't get to decide that the defendant is guilty before they're convicted and then ignore their due process rights as a result.

 

[GatorFL]

Right. I think Barry is guilty as sin. But one of the main ways that false convictions happen is through bad expert witness testimony (bite mark evidence, burn pattern evidence, etc). If the prosecution isn't disclosing who their experts are and what they're going to testify to, it puts the defense at a huge disadvantage because they can't effectively challenge the qualifications of those experts or rebut their testimony.

Now I don't think those concerns apply to the witnesses the prosecution wanted qualified in this case, but the judge doesn't get to decide that the defendant is guilty before they're convicted and then ignore their due process rights as a result.

Linda Stanley = Jeff Ashton.

I wonder how this would have turned out if Jeff Lindsey hung around.

 

[WingsOverTX]

What, in your opinion, would have been the proper sanctions for the discovery violations and missing court deadlines more than once? The Prosecution was basically taking 2 weeks, 1 day away from the defense investigating the prosecution’s 16 expert witnesses during the last 2 months (if my memory serves) before the trial.

MOO

IANAL so I do not know what other remedies were an option. I do think the judge could foresee either an appeal to a higher court or a motion to dismiss would be the result of the remedy he chose.

It would be interesting to know why the prosecution chose dismissal rather than completing the appeals process.

I didn't think they were going to get the judge to back off the sanction of quashing expert testimony without a higher court appeal.

In a murder one case it just seems to a layperson like myself that risking further criminal activity by the defendant is too high a risk. And that is the outcome.

Maybe the other charges will proceed without delay?

MOO

 

[Spartygirl]

I do not like this defense attorney at all.
The prosecution has definitely not presented a stellar case, but she is making a lot of false accusations here.
She’s back to harping on the CODDIS hit.
She is making it sound as if LE never followed up on whether SM might have left the country, which is a lie.
She is stating that LE never followed up on any leads, which is a lie.
She is basically blaming LS for the reason people think BM is guilty.
If the family is grieving so badly, why are they skipping and laughing into court each day?
Truthfully, I couldn’t watch the whole thing.
The reason IE is out there screaming like a banshee is because she’s ticked she’s losing out on all those billable hours during the trial. In actuality she should be happy that she gets to do this whole dance again when they rearrest BM for First Degree Murder.

Amen !!!

You said what I was thinking in a much nicer way than I would have !!!