Still Missing CO - Suzanne Morphew, 49, Chaffee Co, 10 May 2020 *arrest* #98

[Seattle1]

Now that it’s this close to trial and the issue is qualifying witnesses as experts ( which I’ve seen in every trial I’ve followed.. but I’ve never seen this dual witness thing) I can’t believe that the Prosecution would not know that IE would be watching the clock!
This makes me very nervous.

^^rsbm

I wish we knew specifically what deadline(s) the prosecution missed!

When it comes to endorsing expert witnesses, IMO, it's pretty much the expert that does much of the required work for the prosecutor as far as putting together the discovery package including but not limited to their credentials, the data they reviewed, their analysis, and how they arrived at their decision and/or opinion that they believe supports the state's theory. (This is what they're getting paid for).

Then again, this prosecution isn't like most cases.

They have no direct evidence, no forensics, no body, for an expert witness to examine, analyze and provide testimony!

(I'm thinking of Kelsie Schelling's trial where other than a cellular forensics expert, that trial was also light on endorsed experts.

Did the prosecution attempt to hire experts and after interviewing them, decide that their own investigators were better versed in the investigation and discovery than an outsider?

OR, is this a situation where the prosecution was attempting to endorse their state employees as expert witnesses in an effort to overcome some of the stains from Cahill that they know the defense is going to use heavily to sell reasonable doubt to the jurors (i.e., unreliable evidence, etc.).

In other words, the prosecution now treating the 7 investigators as experts in their field to set them apart from regular CBI investigators (such as Cahill).

If so, maybe this was a recent hail Mary play and why the prosecution was tardy meeting the deadline. JMO

 

[Sillybilly]

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[mrjitty]

As to proof of DV - iirc MM2 suggested to Suzanne that she get an AVO. Why can't that be heard?

This is where we have to see exactly where the Judge drew the line.

The witness may be able to testify to saying that as it was a direct action based on the witnesses own understanding. On the other hand, it may be regarded as being too prejudicial.

 

[mrjitty]

So could you please dumb it down for me and explain whether the prosecution is misbehaving or is this par for the course? I hate to blame Covid for anything else but is it even a possibility that they have run low on people, time, etc. thanks so much.

On the McStay trial it was par for the course.

Some expert reports were being disclosed days before they took the stand, or even the morning before.

I was flabbergasted but apparently San Diego is looser than what i am used to!

 

[Seattle1]

This is where we have to see exactly where the Judge drew the line.

The witness may be able to testify to saying that as it was a direct action based on the witnesses own understanding. On the other hand, it may be regarded as being too prejudicial.

I think MM2 was a minor when BM disappeared SM, and wonder if she was interviewed by a Child and Family Investigator (CFI) or Parental Responsibilities Evaluator (PRE).

In Colorado, they can write and testify as to statements made by children.

I wonder if they can be used to corroborate what MM2 said to SM, and shared with SO?

The CFI or PRE is considered an expert witness, and under Colorado Rule of Evidence 705, may testify as to opinions that lay witnesses can not. The CFI or PRE is also presumed to be an unbiased witness, which adds credibility to their testimony. The expert may be required to disclose the facts underlying their opinion on cross-examination. Experts can testify as to inadmissible facts and data, including hearsay, if that evidence formed the basis of their opinion and is a type reasonably relied on by others in the field.

Child Hearsay and Parenting Time Restrictions | Colorado Springs Family Law Lawyer Janko Family Law

 

[BDAJAG]

I think it can be if the prosecution can get MM2 to testify that she said it to SM. Otherwise it’s hearsay.

MOO as a non attorney.

<vrc&b by subscriber>

Q: Whatever happened to 'every person owes their testimony to the State', {or "Crown", in the Common Law} ??

Sure, second-year "Evidence I" and "Evidence II" came after lunch break, admittedly triggering some glazed-over-eyes, BUT I don't think I dreamed that maxim.

I haven't hoisted out Black's Law yet - pretty heavy; pretty dusty - so allow me to foist this onto the erudite membership and its fellow brethren in the law.

 

[Love Never Fails]

Thanks, @Cindizzi for getting past the pw and sharing.

Seems to me that the matter, as presented, touches on both the basics of Rule 16 - Discovery and Procedure before Trial, and also Rule 26 - General Provisions Governing Discovery; Duty of Disclosure.

First, both Rules apply equally to both the prosecution and the defense.

Second, while there's definitely some discretion by the Court in governing Rule 16 where the parties are essentially held to a good faith effort to disclose discovery as soon as practicable, the Court cannot and will not ignore that the general intent of Rule 16 is not only to allow both the prosecution and defense sufficient meaningful information to conduct effective cross-examination under CRE705, but also sufficient time to work with that meaningful information!

I think this is where we are at-- sufficient time.

IMO, there's no better defense attorney in the state of Colorado than IE when it comes to reminding the Court of the defense's right to discovery as soon as practicable.

Each one of us can attest to how beginning with IE's very first appearance before the Court in the matter of the PEOPLE OF THE STATE OF COLORADO v. BARRY LEE MORPHEW, she has not once neglected to loudly hammer on both the prosecution and the Court about their right to discovery, preferably yesterday, and also demand serious sanctions-- applicable or not.

I think the prosecution took a gamble here with their deadline, and Judge Lama didn't bite. (I'm sure IE constantly yelling that the prosecution is baking BM's birthday cake with sour milk and 12-month old eggs didn't help). MOO

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

Under Rule 16 --(d) Discretionary Disclosures,...

(3) Where the interests of justice would be served, the court may order the prosecution to disclose the underlying facts or data supporting the opinion in that particular case of an expert endorsed as a witness.

If a report has not been prepared by that expert to aid in compliance with other discovery obligations of this rule, the court may order the party calling that expert to provide a written summary of the testimony describing the witness's opinions and the bases and reasons therefor, including results of physical or mental examination and of scientific tests, experiments, or comparisons.

The intent of this section is to allow the defense sufficient meaningful information to conduct effective cross- examination under CRE 705.

Rule 26 - General Provisions Governing Discovery; Duty of Disclosure, Colo. R. Civ. P. 26 | Casetext Search + Citator

Under Rule 26 - (2) Disclosure of Expert Testimony,...

(A) In addition to the disclosures required by subsection (a)(1) of this Rule, a party shall disclose to other parties the identity of any person who may present evidence at trial, pursuant to Rules 702, 703, or 705 of the Colorado Rules of Evidence together with an identification of the person's fields of expertise.

(B) Except as otherwise stipulated or directed by the court:
(I) Retained Experts. With respect to a witness who is retained or specially employed to provide expert testimony, or whose duties as an employee of the party regularly involve giving expert testimony, the disclosure shall be made by a written report signed by the witness. The report shall include:

[..]

(C) Unless otherwise provided in the Case Management Order, the timing of the disclosures shall be as follows:

(I) The disclosure by a claiming party under a complaint, counterclaim, cross-claim, or third-party claim shall be made at least 126 days (18 weeks) before the trial date.
(II) The disclosure by a defending party shall be made within 28 days after service of the claiming party's disclosure, provided, however, that if the claiming party serves its disclosure earlier than required under subparagraph 26(a)(2)(C)(I), the defending party is not required to serve its disclosures until 98 days (14 weeks) before the trial date.
(III) If the evidence is intended to contradict or rebut evidence on the same subject matter identified by another party under subparagraph (a)(2)(C)(II) of this Rule, such disclosure shall be made no later than 77 days (11 weeks) before the trial date.

@Seattle, in your opinion, is this a case of IE out-lawyering Linda Stanley’s office?
This sounds like the DA clearly heard what was coming from IE and ignored it. The judge clearly heard it and made his decision based on IE’s argument.

 

[CGray123]

I was able to read the entire article.
Prosecutor Hurlbert wanted to call 7 witnesses including LE and CBI in what is known as a “ dual capacity” where they would testify to what they investigated in the case and also use their specialized knowledge to interpret the evidence.

Eytan argued that the State wants the Court to annoit these LE witnesses as experts so they can give their opinions without relying on any expertise in “ an attempt to convict BM through profiling and
so-called victimology “.

Because the Prosecution failed to meet deadlines, Lama said the 7 witnesses can only testify as lay witnesses in their capacity as LE investigators but will be prohibited from testifying as experts.
Lama said without providing discovery to the Defense as to the basis of their expertise it would amount to “ trial by ambush”.

Lama said he will allow 4 other Prosecution witnesses to testify as experts because their names and information were provided in a timely manner. They include a man who handled a dog search looking for clues of SM along the Arkansas river and a Veterinarian who will testify about the effects of tranquilizer darts.
He sanctioned the Prosecution for failing to provide detailed reports on witnesses in a timely manner. He said it was a flaunting of the Courts Orders and they violated it.

This is helpful, thanks @Cindizzi! I am not sure how much harm this ruling does to the trial. I have never admitted in evidence any kind of profiling testimony describing the profile of the perpetrator and comparing the profile with the defendant, and I doubt the prosecution is counting on it.

However, the prosecution may have been trying to extend a recent trend in a creative way.

We have begun to see courts allow expert testimony about victims of sexual assault but for very limited purposes, such as Dr. Barbara Ziv's testimony in the Cosby and Weinstein cases. Here's an excerpt from an article about her and her testimony:

"In their case against Weinstein, prosecutors plan to use Ziv for two purposes, their notice of expert testimony, a document filed with the court in January but unsealed Tuesday, outlines.

First, they plan to have Ziv testify about information beyond the average juror’s knowledge: Why victims may delay disclosing a sexual assault, factors that determine whether and how a victim may interact with their attacker after an assault has happened, and why a victim may lack signs of an outward trauma after an assault.

And just as she did in the Cosby trial, prosecutors say Ziv’s testimony in the Weinstein case “is necessary to dispel several myths about sexual assault that continue to be prevalent even in today’s society,” according to their filing. Those myths, the DA’s office say, include: victims are usually raped by strangers, they promptly report an assault to authorities, that they display symptoms of trauma and finally, that victims never communicate with their attackers."

The expert the prosecution attempted to call worked not with rape victims but rather with women in abusive marriages, and may have been able to provide information beyond the jurors' knowledge about women who stay in such marriages and why they exhibit certain behaviors when they want to get out.

IMO, he purpose would have been to counter the defense argument that SM's texts about the circumstances of her marriage were lies.

Although this evidence might have been very helpful, I don't see the testimony as essential. Experts aren't always as persuasive as Dr. Ziv apparently was.

Nor do I see the judge's rejection of the opinions of experienced law enforcement officers as experts in this area as a particularly severe blow to the prosecution.

They can still testify as lay people to the inferences they made from the evidence they received, in order to explain their actions. They can still help the jury connect the dots in this way, and their influence with the jury will depend on how well and professionally they testify. Agent Grusing seems particularly adept at presenting himself well. IDK about the others.

 

[Momofthreeboys]

Hurlbert seems like a sharp guy. He won’t have a ton of wiggle room but he seems to be able to handle himself even if it appears he can’t control the “back office” in my opinion. He had to see the writing on the wall I think but I give him credit for going for it. I still think both judges were holding off on sanctions until the end as a courtesy with all the DA changes. And I think Lama acted in a manner so far that didn’t totally gut the state’s case. If everyone gets through the next motions hearing and they close the book on discovery without anymore bombshells we should be off to trial.

 

[Boxer]

I think most prosecutors are used to skirting the rules and never being called on it. Public defenders get so overwhelmed with case, they seldom try a case and instead plea bargain.

BM instead has the money to hire top defenders who call on the DA for everything that skirts or crosses the line our constitutional rights give us when we are charged with a crime. I wish everyone had a defense as good as BM. DAs would be forced to play by the rules and we would have fewer faulty verdicts.

MOO

MOO MOO. Since discovery is basic most prosecutors are professional and understand their cases will fall in appeal if they don't prosecute within the rules. In other words I don't think this is typical.

 

[Momofthreeboys]

MOO MOO. Since discovery is basic most prosecutors are professional and understand their cases will fall in appeal if they don't prosecute within the rules. In other words I don't think this is typical.

Agree. Prosecutors know how it works so what we are seeing is not typical…multiple DAs, CBI who thought they pulled the trigger early, an odd arrest warrant, disorganization of discovery…not typical IMO.

 

[CGray123]

^^rsbm

I wish we knew specifically what deadline(s) the prosecution missed!

When it comes to endorsing expert witnesses, IMO, it's pretty much the expert that does much of the required work for the prosecutor as far as putting together the discovery package including but not limited to their credentials, the data they reviewed, their analysis, and how they arrived at their decision and/or opinion that they believe supports the state's theory. (This is what they're getting paid for).

Then again, this prosecution isn't like most cases.

They have no direct evidence, no forensics, no body, for an expert witness to examine, analyze and provide testimony!

(I'm thinking of Kelsie Schelling's trial where other than a cellular forensics expert, that trial was also light on endorsed experts.

Did the prosecution attempt to hire experts and after interviewing them, decide that their own investigators were better versed in the investigation and discovery than an outsider?

OR, is this a situation where the prosecution was attempting to endorse their state employees as expert witnesses in an effort to overcome some of the stains from Cahill that they know the defense is going to use heavily to sell reasonable doubt to the jurors (i.e., unreliable evidence, etc.).

In other words, the prosecution now treating the 7 investigators as experts in their field to set them apart from regular CBI investigators (such as Cahill).

If so, maybe this was a recent hail Mary play and why the prosecution was tardy meeting the deadline. JMO

Thank you! This is very insightful! These are both plausible scenarios but I am leaning toward the latter - that the prosecution gave the defense the required information about the DV expert they intended to call (IIRC, it was Dr. Donna Peters) and when the DV evidence was excluded they tried to qualify investigators as experts - essentially in the same subject. This was an aggressive move that failed in part because it was made after discovery deadlines. It would be wrong to characterize this as the prosecution deliberately violating the judge's orders, or failing in any other way.

I remain concerned, however, that Judge L may not have a good understanding of what domestic violence is, from his comment that evidence of DV is lacking. What other blind spots does he have?

 

[sk716]

What the heck is wrong with the DA.
Can the prosecutions case recover in the eyes of a jury? Being reprimanded by a judge for a matter of substance is not a good way to assert trustworthiness.

Unfortunately, without the transcripts we'll never know. In the first two days of the PH the defense would insist they didn't have something, Lindsey would exasperatedly tell the court it was on the hard drives. Personally, I think I&E are full of bull with the discovery "violations" but no one can prove it. They've been complaining since they were handed a bunch of hard drives.

 

[sk716]

I think it can be if the prosecution can get MM2 to testify that she said it to SM. Otherwise it’s hearsay.

MOO as a non attorney.

Compelling MM2 to testify could backfire spectacularly.

 

[Momofthreeboys]

Thank you! This is very insightful! These are both plausible scenarios but I am leaning toward the latter - that the prosecution gave the defense the required information about the DV expert they intended to call (IIRC, it was Dr. Donna Peters) and when the DV evidence was excluded they tried to qualify investigators as experts - essentially in the same subject. This was an aggressive move that failed in part because it was made after discovery deadlines. It would be wrong to characterize this as the prosecution deliberately violating the judge's orders, or failing in any other way.

I remain concerned, however, that Judge L may not have a good understanding of what domestic violence is, from his comment that evidence of DV is lacking. What other blind spots does he have?

I'm confused about something - if Domestic Violence was an enhancer then yes, I'm thinking that is off the table now. But I'm not seeing the connection to the murder charge and the activities of May 9 and 10 which is what the case is essentially about. Seems to me that if DV were situational to the charges, the charges would not be murder 1. But I'm not seeing the connection of verbal, financial or physical abuse to proving that Barry murdered his wife and since it isn't a charge I'm not sure how it "fits" into the trial. Suzanne had grievances that were written by her, but not much more in my opinion. They argued by text about finances and divorce. She said she was afraid, but never said of what - getting her finances cut off, getting kicked out of the house, getting dropped from the medical insurance...it doesn't say she was afraid Barry would be violent. The teen said they had arguments but the implication was that they were the type of arguments a couple on the verge of divorce might have. I agree that Barry threatening to kill himself or jump out of a moving car indicate he has anger...and while that is manipulative and is abusive in a relationship it doesn't say he'd kill her....it says he'd kill himself. I have to admit, if my H ever took a swing at me I'd be gone in a second...forever, but I've also known couples where both were physical in heated arguments and we have nothing tangible about how they argued for prosecution to use. I'm alittle challenged on the description of controlling...as far as what we know, she appeared to have free reign to come and go and enough money to do as she pleased. He didn't murder her because he didn't like how she dressed that is a jerk move agreed. I've read everyone's descriptions of what constitutes domestic violence...but that isn't the charge so I'm alittle lost in the DV discussions and evidence honestly or why people are so upset it won't be allowed. Barry was a crappy spouse for Suzanne at that point in her life, but being a crappy spouse doesn't mean he murdered her so how were they going to tie it to the murder? Just being honest here as I'm not seeing the importance of it not being part of the trial.

 

[PawneeDew]

I wish we had a DV expert among us. Perhaps we can find one? I know many years ago my sister had an abuser and she awakened to bruising all over her body after a Christmas party which she shared with a coworker who took photos to document and were safely secured although never necessary. This psycho later stole my sister’s dog who no one was aware of until his current girlfriend called her concerning the dog being old and sick. I had one also many years ago who had another girlfriend leave a note on my front door regarding her fear and my fear and she really wanted to talk to me. hubby and I have all my stuff documented and hidden in a safe.
What more do women need to do in order to document the various abuse they incur? If I text my bff, my sister, my brother or pastor/therapist and that is not permitted into evidence what the hell do we do? Calling LE is often not an option for many reasons especially with children in the home and fear of repercussions from the abuser. Much abuse doesn’t even leave physical evidence but rampantly occurs. We live in the US for God’s sake. All these things should matter and be meaningful and should find their way into evidence in court especially in a case like this. IMO

Totally agree. It's also very frustrating that emotional abuse is not recognized as much as physical abuse...or not recognized at all.

 

[Megnut]

Yes, Suzanne traveled but we're not privy to what it cost her.

If she were truly free to come or go, IMO she wouldn’t be dead.

Look what happened when she tried to leave.

She wasn't free.

JMO

 

[Yvettea]

Please excuse the deletion.

 

[susiQ]

A quick trip down memory lane:

https://twitter.com/laurenscharftv/status/1429931629506666500?s=21
Lauren Scharf
@LaurenScharfTV
·
Aug 23, 2021

According to Grusing, #BarryMorphew said all he had left in his life was hunting. Barry had hunted since he was 7-years-old. "If I have to live this life without her, at least I can hunt."

Well, it certainly didn’t take Bare very long to “hunt” Shona.

 

[Love Never Fails]

A quick trip down memory lane:

https://twitter.com/laurenscharftv/status/1429931629506666500?s=21
Lauren Scharf
@LaurenScharfTV
·
Aug 23, 2021

According to Grusing, #BarryMorphew said all he had left in his life was hunting. Barry had hunted since he was 7-years-old. "If I have to live this life without her, at least I can hunt."

Well, it certainly didn’t take Bare very long to “hunt” Shona.

Sometimes in a dream state I think if Barry was given a lesser sentence that included being barred for life from weapons and women, could he make it?