Found Deceased CO - Suzanne Morphew, 49, Chaffee Co, 10 May 2020 *Case dismissed w/o prejudice* #106

[mrjitty]

People focus on the glovebox DNA, but the points brought up in the civil suit also cover all the unknown DNA in the bedroom, bike, helmet, back seat of Suzanne's car. as well as the glovebox .. and when they received the information from prosecution... could be anybody's DNA in all those locations, but I think the civil lawyers have a different argument than whose DNA was on the glovebox.

Putting aside the wild ideas about a conspiracy against Barry, as far as I can tell, broadly speaking, the plaintiffs only really make out two potential complaints.

1. Persistent Discovery violations
The problem with this complaint is the conduct 99% relates to the period post prelim and pre-trial, and BM already had his remedy here. He was also not in jail during this time, and an actual Judge found the case strong enough to go to trial. I suspect it would be very difficult to convince another court as a legal question, that it can go to a jury to second guess the judge. In other words, the run up to trial was at all times subject to judicial oversight and a judge was at all times happy there was a case to answer even post sanctions. Notably, Judge Lama did not agree to dismiss the charges when he implemented sanctions, despite full knowledge of the discovery issues

2. DNA/Alternate suspect
Despite the issues at the prelim with Cahill (again subject to judicial oversight) at no time were the prosecution aware of an alternate suspect via DNA. The fact that there is unidentified DNA in a house or in a car is not a constitutional violation

There seems to be two consistent themes in the pleading which strike me as misguided

First that the AA should contain exculpatory evidence. But no AAs i have seen include the defence case. They include the evidence that is incriminating. And second that law enforcement cannot be tricky or bluff the defendant in interrogation. But that is incorrect. The defendant has the protections of the constitution in not having to answer. But if he goes ahead and makes damaging admissions that is his problem. There is no suggestion that law enforcement used improper pressures etc.

So yeah - my 02c but this strikes me more as posturing than a real law suit they intend to bring to trial.

Especially the use of repetitive paras "ZOMG Grusing showed a pin map of lies and deceit" strikes me as written for a lay audience more than a court

 

[mrjitty]

I looked into this issue of exculpatory evidence in the AA and it is actually quite interesting as far as this case is concerned.

I don't have primary cites just yet, so this is IMO

The AA is expected to be truthful, so material that is genuinely exculpatory should be included. An example would be where the murder weapon has two DNA sources on it, the accused and someone else for example. In that case, if the second DNA source raises the real possibility of the real killer - then it ought to be included.

However the test is, whether the material that ought to have been included would make any difference to the probable cause finding.

IMO the problem here is the Judge found the case was strong enough to proceed to trial, even after knowing about the "glove box guy" - so clearly the low standard for arrest was also reached IMO.

And secondly, even though Cahill blew the testimony, it is clear investigators never believed there was in fact the DNA of an out of state sex offender on the glove box. Certainly they did not conceal it. Rather, they knew that as it was only a partial match, that person could realistically be anyone and the RR had nothing to do with the case.

So yeah - based on a short look - I don't think IE has much of a case on this DNA conspiracy. Rather she had something she could use at trial to throw mud at the wall.

 

[MountainDad]

Release the "interviews", including the bbq and praying with Barry . a suspected murderer handing a weapon through a vehicle window on the side of the road to Grusing. Where the he'll is the interview from May 10 2020? Did they interrogate him that night? Why wait three days to photograph injuries on Barry? Completely botched IMO. The body cam footage is cringe. What the he'll are they doing? Playing nice because they're afraid he will lawyer up. Playing nice allowed him time to get POA, sell two homes, and hire a very able and conniving defense lawyer, pay bail. BOTCHED

 

[Momofthreeboys]

Release the "interviews", including the bbq and praying with Barry . a suspected murderer handing a weapon through a vehicle window on the side of the road to Grusing. Where the he'll is the interview from May 10 2020? Did they interrogate him that night? Why wait three days to photograph injuries on Barry? Completely botched IMO. The body cam footage is cringe. What the he'll are they doing? Playing nice because they're afraid he will lawyer up. Playing nice allowed him time to get POA, sell two homes, and hire a very able and conniving defense lawyer, pay bail. BOTCHED

Investigators handled everyone in this investigation with kid gloves in my opinion...the fact that JL's receipt that exonerated him was a receipt from his wife's credit card as exposed in the civil case shot my eyebrows up....the speculation internally and in the public took on a life of it's own as all the actual facts were increasingly clouded. Just an amazing case study in my opinion. Will be so so interesting to see how this all plays out over time both criminally and in the civil suit.

 

[MountainDad]

If he would have lawyered up because they were actually interrogating him, his assets would have been frozen. He would be appointed a public defender. 30 hours of interviews and now they're getting sued, because the interviews were weak. They lacked professionalism. They lacked a common goal between LE agencies.
"Can we come up and chat? We'll bring pizza?"
"You can come up, but don't bring pizza. I'll put a couple steaks on for you"

It all failed.

 

[CGray123]

Investigators handled everyone in this investigation with kid gloves in my opinion...the fact that JL's receipt that exonerated him was a receipt from his wife's credit card as exposed in the civil case shot my eyebrows up....the speculation internally and in the public took on a life of it's own as all the actual facts were increasingly clouded. Just an amazing case study in my opinion. Will be so so interesting to see how this all plays out over time both criminally and in the civil suit.

I would take the factual allegations in BM's civil complaint with more than a grain of salt. But I agree that the case will be worth following. I will be more than surprised if BM can prove to a jury that he is "100% innocent" as IE has proclaimed.

It may not get to that. The complaint is long on volume and short on legal substance IMO. It may be dismissed because, even assuming the factual allegations are true, they don't support a legal claim.

 

[Momofthreeboys]

I would take the factual allegations in BM's civil complaint with more than a grain of salt. But I agree that the case will be worth following. I will be more than surprised if BM can prove to a jury that he is "100% innocent" as IE has proclaimed.

It may not get to that. The complaint is long on volume and short on legal substance IMO. It may be dismissed because, even assuming the factual allegations are true, they don't support a legal claim.

I appreciate your insights and thoughts.

 

[O.Incandenza]

Hard to see how this lawsuit goes anywhere IMO. Prosecutors who commit intentional and egregious ethical violations against demonstrably innocent people are often able to escape personal liability due to prosecutorial immunity. Barry is, to say the least, not demonstrably innocent, and the violations alleged here seem far more like incompetence/disorganization than anything nefarious. Maybe there's a case if some evidence emerges in discovery (assuming we even get that far) of defendants acting intentionally to suppress evidence about the DNA 'matches' prior to the PH, though I can't imagine why they would have done that. But even then, I'm not sure Barry would win.

I also question the strategy here. I can see the benefit from IE's perspective of being able to serve discovery on LS and some of the investigating officers, but that seems outweighed by the huge downside of opening Barry up to being deposed. Is he just planning to take the 5th? Is that even allowed for a civil plaintiff in Colorado? Even if it's allowed it will look absolutely terrible to a jury, and they're allowed to draw negative inferences from taking the fifth in a civil case.

 

[mrjitty]

Hard to see how this lawsuit goes anywhere IMO. Prosecutors who commit intentional and egregious ethical violations against demonstrably innocent people are often able to escape personal liability due to prosecutorial immunity. Barry is, to say the least, not demonstrably innocent, and the violations alleged here seem far more like incompetence/disorganization than anything nefarious. Maybe there's a case if some evidence emerges in discovery (assuming we even get that far) of defendants acting intentionally to suppress evidence about the DNA 'matches' prior to the PH, though I can't imagine why they would have done that. But even then, I'm not sure Barry would win.

I also question the strategy here. I can see the benefit from IE's perspective of being able to serve discovery on LS and some of the investigating officers, but that seems outweighed by the huge downside of opening Barry up to being deposed. Is he just planning to take the 5th? Is that even allowed for a civil plaintiff in Colorado? Even if it's allowed it will look absolutely terrible to a jury, and they're allowed to draw negative inferences from taking the fifth in a civil case.

Right?

Like this seems a disaster in the making for Barry. I cannot imagine his criminal counsel advising him to do depositions - the risk is insane. But if he takes the 5th then this case is a joke.

 

[CGray123]

Right?

Like this seems a disaster in the making for Barry. I cannot imagine his criminal counsel advising him to do depositions - the risk is insane. But if he takes the 5th then this case is a joke.

I do think the lawsuit has strategic benefits for BM. Everyone involved in the suit is either a witness against him or a decision maker in the event evidence is found that should lead to a new criminal filing. As a practical matter, it will make it all but impossible for LS and her senior staff to file and try the case. Any re-filing decision and prosecution will have to be by the State or the Feds, until the case is over - which could be a long time if it's not dismissed. He may hope to buy a few years of freedom regardless of the outcome of the civil case.

 

[MyBelle]

I do think the lawsuit has strategic benefits for BM. Everyone involved in the suit is either a witness against him or a decision maker in the event evidence is found that should lead to a new criminal filing. As a practical matter, it will make it all but impossible for LS and her senior staff to file and try the case. Any re-filing decision and prosecution will have to be by the State or the Feds, until the case is over - which could be a long time if it's not dismissed. He may hope to buy a few years of freedom regardless of the outcome of the civil case.

Couldn't LS have a grand jury indict BM?

 

[MountainDad]

I do think the lawsuit has strategic benefits for BM. Everyone involved in the suit is either a witness against him or a decision maker in the event evidence is found that should lead to a new criminal filing. As a practical matter, it will make it all but impossible for LS and her senior staff to file and try the case. Any re-filing decision and prosecution will have to be by the State or the Feds, until the case is over - which could be a long time if it's not dismissed. He may hope to buy a few years of freedom regardless of the outcome of the civil case.

And it sways public opinion in the meantime . At this point this is a missing persons case, the husband was arrested and case dismissed, the husband is suing for wrongful arrest- that is the public narrative. He won't testify. Doesn't need to. Just filing the suit , as a free man, says enough.

 

[CGray123]

Couldn't LS have a grand jury indict BM?

She could. But that would not resolve all the obstacles created by BM's lawsuit: grand juries - though legally independent - are widely believed to act in accordance with the wishes of the prosecutor. LS's decision to file new charges would be described by BM as retaliation for the civil rights charge - a new civil claim and another lawsuit, seeking to enjoin the new prosecution. All of her less-than-glorious history (and her staff's) in the past proceeding would be defense evidence in the new criminal case. This includes civil deposition testimony and any information contained in the ARC file. And, of course, any disciplinary action that might be taken against any of them by the Commission.

For all kinds of reasons, LS and her office need to be severed - completely - from any decision to prosecute BM for the murder of his wife. If the Sheriff's ongoing investigation produces new evidence before the end of the civil suit, it would be best to persuade LS to ask the Colorado AG or the US Department of Justice to evaluate, make prosecutorial decisions. They're Ds of course, not Rs so politics may be a factor in her decision. That is to say, the civil lawsuit's downstream consequences make a successful prosecution of BM for murder much less likely for the foreseeable future.

The strategic value of the new civil case may be more important than the money, for BM.

 

[Momofthreeboys]

She could. But that would not resolve all the obstacles created by BM's lawsuit: grand juries - though legally independent - are widely believed to act in accordance with the wishes of the prosecutor. LS's decision to file new charges would be described by BM as retaliation for the civil rights charge - a new civil claim and another lawsuit, seeking to enjoin the new prosecution. All of her less-than-glorious history (and her staff's) in the past proceeding would be defense evidence in the new criminal case. This includes civil deposition testimony and any information contained in the ARC file. And, of course, any disciplinary action that might be taken against any of them by the Commission.

For all kinds of reasons, LS and her office need to be severed - completely - from any decision to prosecute BM for the murder of his wife. If the Sheriff's ongoing investigation produces new evidence before the end of the civil suit, it would be best to persuade LS to ask the Colorado AG or the US Department of Justice to evaluate, make prosecutorial decisions. They're Ds of course, not Rs so politics may be a factor in her decision. That is to say, the civil lawsuit's downstream consequences make a successful prosecution of BM for murder much less likely for the foreseeable future.

The strategic value of the new civil case may be more important than the money, for BM.

This is what some of my legal friends are saying regarding any near term action regarding a new arrest and prosecution and the proverbial "chess move" by the civil team.

 

[Seattle1]

Right?

Like this seems a disaster in the making for Barry. I cannot imagine his criminal counsel advising him to do depositions - the risk is insane. But if he takes the 5th then this case is a joke.

Disaster is a good description.

I dunno -- listening to IE's interviews and her references to the daughters -- alluding to their constant, weekly if not daily connection, I'm wondering if these three overdosed on the Barry kool-aide and pledged to spend the rest of their lives proclaiming his innocence. It's all so misguided.

 

[MyBelle]

She could. But that would not resolve all the obstacles created by BM's lawsuit: grand juries - though legally independent - are widely believed to act in accordance with the wishes of the prosecutor. LS's decision to file new charges would be described by BM as retaliation for the civil rights charge - a new civil claim and another lawsuit, seeking to enjoin the new prosecution. All of her less-than-glorious history (and her staff's) in the past proceeding would be defense evidence in the new criminal case. This includes civil deposition testimony and any information contained in the ARC file. And, of course, any disciplinary action that might be taken against any of them by the Commission.

For all kinds of reasons, LS and her office need to be severed - completely - from any decision to prosecute BM for the murder of his wife. If the Sheriff's ongoing investigation produces new evidence before the end of the civil suit, it would be best to persuade LS to ask the Colorado AG or the US Department of Justice to evaluate, make prosecutorial decisions. They're Ds of course, not Rs so politics may be a factor in her decision. That is to say, the civil lawsuit's downstream consequences make a successful prosecution of BM for murder much less likely for the foreseeable future.

The strategic value of the new civil case may be more important than the money, for BM.

BBM. Can't the AG name a Special Prosecutor and that Prosecutor convene a Grand Jury? It is a shame that a civil lawsuit is being weaponized against the DA and her team.

 

[waldojabba]

BBM. Can't the AG name a Special Prosecutor and that Prosecutor convene a Grand Jury? It is a shame that a civil lawsuit is being weaponized against the DA and her team.

A special prosecutor and a grand jury would be like a dream come true ! IMO

Procedural question re the civil suit :

Does the counsel of the sued party/parties file a brief in response to the civil suit with the court and then the magistrate judge evaluates? And is there a time frame for response ?

The sued parties counsel I am certain, would mention how this law suit could be construed as a not so veiled attempt to intimidate and tie the hands of the prosecution moving forward (especially since it's an ongoing investigation). And as some have mentioned, buy BM some time from potential prosecution.

There are a lot more moves left on the "chess board" IMO - the game has just begun

ALL IMO

 

[CGray123]

BBM. Can't the AG name a Special Prosecutor and that Prosecutor convene a Grand Jury? It is a shame that a civil lawsuit is being weaponized against the DA and her team.

There is a state grand jury that could consider this - convened by the Colorado AG.

I think the state and Federal people will not be civil defendants for long. The claims against them are absolute rubbish. MOO.

 

[Trebor5591]

Investigators handled everyone in this investigation with kid gloves in my opinion...the fact that JL's receipt that exonerated him was a receipt from his wife's credit card as exposed in the civil case shot my eyebrows up....the speculation internally and in the public took on a life of it's own as all the actual facts were increasingly clouded. Just an amazing case study in my opinion. Will be so so interesting to see how this all plays out over time both criminally and in the civil suit.

Who is JL?

 

[CGray123]

A special prosecutor and a grand jury would be like a dream come true ! IMO

Procedural question re the civil suit :

Does the counsel of the sued party/parties file a brief in response to the civil suit with the court and then the magistrate judge evaluates? And is there a time frame for response ?

The sued parties counsel I am certain, would mention how this law suit could be construed as a not so veiled attempt to intimidate and tie the hands of the prosecution moving forward (especially since it's an ongoing investigation). And as some have mentioned, buy BM some time from potential prosecution.

There are a lot more moves left on the "chess board" IMO - the game has just begun

ALL IMO

Hoo Boy! You betcha there are moves to be made by all the defendants! First up will be a motion to dismiss under Rule 12(b)(6), FRCP.