EP. 74 - SHOCKING "DISCOVERY!" BARRY MORPHEW CASE PART 2

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Welcome to Is This Legal?, here are your hosts attorneys Colin McCallin and Russell Hebets.

Hello everyone. And welcome back to another fresh episode of is this legal. My name is Colin McCallin, and I am sitting here with my partner, Russell Hebets, Russ. How are you, man? I am having a good day. I'm excited to dive into more few part two. Yeah, boy, this is, this is one that we've been waiting to do for a long time. Um, so, uh, we are gonna dedicate this episode to, uh, the Barry Morphew case, um, which was just dismissed by, uh, deputy district attorney, not deputy district, the district attorney, Linda Stanley of the 11th judicial district. Uh, this just happened a couple weeks ago. We already did a podcast on this case. It's very fascinating. This is murder without a body. Um, it's episode 61. For those of you keeping track, you should go back and check it out. If you haven't cuz uh, we covered a lot of the introductory, uh, parts of this case, but now we're gonna get into the aftermath.

We, um, when we recorded that episode, the preliminary hearing had just occurred. In that case, we didn't even have a ruling for the preliminary hearing about whether or not there was gonna be probable cause for the case to go forward. Um, but we're gonna cover everything that's happened since. And uh, boy, oh boy, Russ, do we have some juicy stuff in here or what? We have some really juicy stuff in here. So before we dive into this, let's give the listeners, uh, we're gonna assume you listen to episode 61 already and you have a basis of the facts. I'm gonna give you a really quick timeline of what has happened in this case that we're gonna be talking about. So remember Suzanne Morphew went missing back in may of 2020 that summer during the investigation, they found male DNA in multiple places. They, that summer excluded Barry Morphew from being a contributor to that DNA.

It was not his DNA on May 4th, 2021. That's when about a year later, right? A year later. Yeah. That's when the Sheriff's office filed 129 page arrest affidavit that led to his arrest. He was Barry Morphew was excluded that DNA evidence was nowhere mentioned in that hundred and 29 page affidavit. So seems like that would be important. Absolutely. But the judge had no idea, right? The judge who signed off on it had no idea that there was even DNA evidence. Wow. Okay. About two weeks later, there was a hit on that DNA for three different individuals who had out of state sex assaults, uncharged or unsolved sex assaults. So you're saying the unknown, uh, DNA that was found on, on her, uh, items. Yes. Uh, basically not only excluded Barry Morphew as the source of the DNA, but related to other crimes out of state, it pointed to three separate potential suspects out of state.

Okay. Okay. Law enforcement had multiple meetings about this that they did not disclose to the defense. Okay. At the pH hearing that we talked about last time, the judge found, yep. There's barely enough probable cause to go forward. It's important to note at that hearing the prosecution again, did not bring up this DNA evidence at all the defense actually elicited to, uh, that some of that testimony, which we'll talk about later. Exactly. So, so now the defense files, multiple discovery violations. Discovery is basically, CO's gonna talk about this in a minute, but it's basically how you get the reports as the defense in the case. That's right. Okay. So multiple allegations of violations, they let's jump forward to this year, March 30th, there was a hearing on experts, the defense or the prosecution had endorsed 16 separate experts. They were arguing about what was gonna come in.

What wasn't the judge excluded a total of 14 of those 16 experts. Most of those based on sanctions for the discovery violations that the DA's office committed. Yes, that's correct. And uh, so meanwhile, the case Russ is set for trial on April 28th, 2022. Um, did this case ever get, make to trial Russ? You know, we're, we're sitting here recording on the day of trial <laugh> and we're not covering the start of a trial because just over two weeks after the court excluded those experts, the DA's office filed an 11 page motion saying, um, we need to do more work. Um, we're gonna go ahead and dismiss this case for now, right? Uh, so the case is dismissed. So, uh, there are no more charges filed against Barry morphia, at least relating to this homicide. Um, and uh, this we're, we're gonna get into this because I think as you're about to find out some of the actions of the district attorney in this case, as well as the police investigators who handled this case were frankly are frankly amazing.

Uh, in that bad, in, in that comes to mind, incompetent comes to mind, uh, rushed comes to mind, we're we're gonna get into this, but first of all, uh, Russ and I in preparing for this podcast, we realize that, you know, uh, in several years of doing this podcast, we've never really talked about discovery in a criminal case. All right. And this is, this is actually a really, really big deal. Uh, Russ and I are former prosecutors. We know all about discovery. Here's the concept of discovery, the sixth amendment of the constitution, the United States constitution, uh, guarantees an accused person of a crime, the right to face their accusers. All right, this is, this is part of the bill of rights. And, uh, as what that means is that if you get charged with a crime, the government who's charging you, they don't get to keep secret the evidence that they are using to prosecute you rather, they actually have to disclose it to you.

Uh, as a matter of course, they're mandatory, required to ator required to disclose it to you so that you can prepare your defense. Yeah. Uh, it makes sense, right? Yeah. It makes sense. And, and this, this varies state by state and it varies federal to state, but every state and federal government has some version of this Colorado's is actually one of the most inclusive ones. Mm-hmm <affirmative> that requires the most discovery. Most disclosure, you can, you can substitute disclosure for discovery. Exactly. Um, but one thing that they all agree on is everyone has to disclose or discover anything that is potentially exculpatory to the accused, any evidence that would negate the guilt of the defendant. I mean, you can imagine if you've accused somebody of a crime and, and, and you have evidence that shows that that person actually didn't commit the crime. That's paramount evidence that it has to be discovered.

Yeah. You can't bury that. You can't bury it. You can't, uh, not write it down. Right. You can't just pretend like, uh, you never saw it. Um, you know, in, in fact, if you did any of those things, Russ, that is, that has a violation of your ethics, right. It could be prosecutorial misconduct, right. In some cases it can even be criminal. Absolutely. I mean, Russ again're, again, we're both former DAS. I can, I remember when I first became a DA and you know, how, how much training we received on, look, if you have information disclose it just err, on the side of disclosing it, the worst thing you can do is, is to, as a prosecutor, as a lawyer, is to get caught withholding evidence that you have absolutely like you, you err on that side of like, let's make this fair cuz that's your job.

That is your job, your job. Shouldn't, shouldn't be to get a conviction. Your job should be to serve justice. Absolutely. And, and think about this for five seconds. Why would someone withhold evidence? Is it to gain an unfair advantage in the proceeding? That's not how district attorneys and prosecutors are supposed to operate. Yeah. They're supposed to operate with complete transparency and you know, they always say when, when you're a young prosecutor, we wear the white hat, you know, like we, this we're the good guys, you know? And um, discovery is gonna be a big, big topic of today's podcast because this district attorney's office botched this up. Yeah. They really did. And we've talked about like DNA, false DNA cases, DNA exonerations, and prior podcasts. Like I I've gone through this Colin and I honestly don't think there was any intentional bad action on behalf of the DA.

I just think it was inept. You know? I, and you may disagree. Well, it, it was so sloppy Russ that I, I wonder. Yeah. I mean, I, I wonder, you know, and, and I guess let's, let's start talking about this a little bit. Well, let's say here's how this can happen. This can happen when a DA is sitting there and the DA truly believes the person's guilty. Right, right. They are convinced that that person is guilty and they're convinced so much that they don't care what the evidence might show. Otherwise they, they like, they're like a horse with son, right. Yeah. Right. And, and Russ, that's what happened in this case, let's call a SP a spade. Let, let's go back to the beginning because this is something that we didn't totally talk about. Um, on episode 61, but Russ, let me ask you, this was law enforcement was the Chaffee county Sheriff's office or the, uh, district attorney were, did they have to bring this prosecution, uh, at the time that they did, like, were they under the gun?

Was there a statute of limitations problem? You know, was there anything that required them to charge this case when they did? So first degree murder has no statute of limitations. So explain to our, uh, our listeners out there, what that means. Here's what that means. Typically from the discovery of a crime or the allegations of a crime, the prosecution for most charges has a certain amount of time to charge the case. Right. So they can't like say you cashed a bad check intentionally. So we're gonna sit on this for 10 years. And then eventually like when you're 80, we're gonna file charges. Right. Right. You know, this comes with the notion of related to speedy trial. Right? Yeah. We don't want the state to hold, uh, the, the possibility of a prosecution over someone. Yeah. There, there's a bunch of societal interests in moving those forward for a first degree murder.

Um, that doesn't exist. Yeah. You have, as long as you want to investigate a murder case because it's so serious, that's why we have cold cases that are solved 30, 40 years after they happened. Right. That that's what we're talking about here. Yeah. So Chaffy Carley had no, they were not under the gun at all. They did not have any requirements to move quickly on this case. They, they moved in about a year and they moved without a body. As we talked, talked about, they filed, they filed this case. They arrested Barry Morphew, um, with, you know, without discovery of the body. But, and by the way, to this day, uh, to the right, that Suzanne Morphew has not been found. And, and we'll, we'll, we'll talk about whether that finding is imminent a little later, when we talk about the DA's motion to dismiss, but let's something really important about that decision to move forward about a year later, right?

So Chay county Sheriff's office is doing the primary investigation, but this is a big case and Chaffy, county's a small town, small jurisdiction, so small mountain jurisdiction. So they're getting help. They're getting help from the big boys in Denver, Colorado bureau of investigation. Exactly. So that's the state agency. Um, they handle all sorts of DNA testing, things like that, high profile stuff. They have a law enforcement section that helps local communities investigate this, especially in high profile murder cases. Yes. You know, so go ahead, Russ. Yeah. So CBI is intimately involved in the investigation from the beginning, from the beginning, the lead from CBI is a guy named agent Cahill, Joe Cahill, Joe Cahill. He is the top assigned person from CBI working with Chaffy county on this case. That's right. On this case, he finds out that the Chaffy county sheriff is planning to file this arrest affidavit and arrest Barry morph.

And you know what he does, um, you know what he does, I do know what he did. The listeners don't though. He said, that is the worst decision you can make. And I think he actually used those words, allegedly. He, he, he called up the Shay county sheriff. Then he had his supervisor call Chay county sheriff. Then, then the director of the Colorado bureau of investigation called the Chay county sheriff top of the sheriff spy in, uh, Chay county and said, we are not ready to file this case. Yep. We have this unknown male DNA profile that we're trying to investigate, do not rush this case. This will make it impossible, you know, to, to go forward, hold up. We have plenty of time. Let's do a thorough investigation. So it sounds like pretty Sage, uh, advice. So sounds like good advice from experts who have handled high profile DNA cases before, right?

Yep. So, uh, what happens Russ? We saw the, uh, the, uh, Chay county sheriff essentially flips him the bird and says, I'm gonna go ahead and file this. Yep. And arrest him with the consent of the district attorney. Yes. Uh, and the her name by the way is Linda Stanley. We're gonna be mentioning her name a few times during this podcast. Um, but, uh, they're the ones who decided to go ahead and arrest and, and by the way, it's gonna be important to note this. Um, they knew about the concerns that the Colorado bureau investigation had. Okay. And here's why they knew Russ is because, and may, maybe, uh, Ms. Stanley forgot this part, uh, after speaking became a DA, but when you charged someone with the crime, this, this, this discovery rule rule 16, that governs what the prosecution's duties are to disclose evidence to the defense that kicks in, right.

That means from the moment that, uh, the case gets charged at that point, the, the, uh, there is a duty on the prosecutor to discover everything related to the case. And certainly that would involve, uh, the decision making process in the first place from law enforcement to decide whether or not charges should be filed and whether or not, uh, law enforcement officers who are investigating felt, felt that this case could be proven or not. Yeah. So at, at that point they have to disclose everything about this DNA evidence that's right, right. That's that's right. Cuz that is exculpatory. That is stuff that makes it less likely that Barry Morphew was the killer if there was a killer. Right. And if you were following the timeline that Russ went over, um, they, they still had, no, they, they did not, uh, know what the significance was of this unknown male DNA profile.

Right. When they filed charges, they got that information two weeks after they charged the case. So I assume Russ, they must have ran and told the judge or uh, whoever to listen. Oh, we have more evidence that we should probably make you aware of. Yeah. They, they definitely did not do that. Um, and, and it's important. Like, so not only did they not do that, they knew, so they didn't find out about the out-of-state hits on the potential unsolved crimes, those unsolved sex assaults until two weeks later. But they did know that Barry Murphy was excluded, excluded that's right, right. So they didn't include that two weeks later, they didn't go and run and tell, tell the judge, Hey, we just, you know, you signed off on a probable cause warrant without all this information where there's alternate suspects now. Um, so they didn't do any of that.

And you know, it, it just, it boggles my mind that especially after CBI tells them not to move forward, that they didn't, this was two weeks away from being disclosed. Right, right, right. They couldn't have called the lab and said, Hey, are you guys close to getting a hit? How long will it take you to analyze this, to see if there's hits. Right. Like they couldn't wait two weeks right. To do this well. And okay. Let, let's just, I'm gonna, I'm gonna attempt for a moment to play devil's advocate. It's so hard in this case, but let's give Ms. Stanley the benefit of the doubt in one respect, uh, as well as the JP county sheriff one, I know that there was public pressure on them. I mean, this case was all over the media. I mean, you know, Suzanne Morphew had been missing for a long time.

There were calls to justice. This is a small community. And Russ we've talked about this before, if you are elected district attorney, what better way to, uh, get out there in the community, uh, and put your name out there than by charging a high profile case. Yeah. Russ, I mean, I think there was pressure that these people succumb to yeah. Uh, in order to file this case, that's the only reason I can think of, of why you would disregard such, such an experienced law enforcement group, like CBI in pursuit of a case that obviously we know what happened. That ends up getting dismissed. That very well may be the case. It still makes no sense to me because we're already a year after. Right. What is, what is two more weeks? Right. You know, you're talking about 52. Oh, it's 52 versus 56. Are you kidding me?

Like not, not compelling to me, but here's, here's, here's something important is that at that time that the judge signed off on that probable cause arrest a warrant that got him arrested, the DAS also asked for what's called, um, it it's basically no bond. Right. It's a proof of evident presumption. Great. Yeah. In first degree murder cases and I'm almost positive, it's only first degree murder cases. Um, in addition to making a probable cause finding, uh, that's what the preliminary hearing was for, there's also a separate hearing called proof evident presumption. Great. Uh, where a judge <laugh>, it's kind of a nebulous standard, but a judge kind of has to say, yeah, not only is there probable cause, but if we're gonna hold this guy in custody without a bond, without even the setting of a bond, I have to find that the proof is evident of the murder charge and the presumption of guilt is great.

Right. Um, and the judge did not find that in this case, he actually, I don't wanna jump too far ahead, but he said, there's there's that that standard is not met. And he ended up setting a bail for Mr. Morph where he could bond out. But that didn't happen. The judge didn't decide that until five months later. Yeah. Because when, when he got arrested there wa that was in place. Well, let's, let's go back to, uh, this CODIS, uh, hit okay. For a second. Cuz I want to talk about this. Remember that when I say CODIS hit, that's the acronym for the database that matches unknown DNA samples to known offenders who have been convicted anywhere in the country to see if they can link up defendants to other unsolved crimes. Right. And, and for anyone who's out there like taking notes, it stand, the acronym stands for combined DNA index system.

Hey, you can't accuse us of not being thorough. And so, uh, anyway, um, here, but here's, what's going on. Um, the first time that the judge, uh, who's deciding whether or not there's probable cause in this case finds out about this DNA stuff is at the preliminary hearing. Okay. And I, I, I want to back up slightly because as Russ mentioned, uh, in, in his kind of timeline, um, right after the case was charged after the discovery that this unknown DNA profile matched three separate unsolved crimes in three different, uh, locations, the district attorneys and investigators in this case had multiple meetings discussing this. They had multiple meetings saying maybe we should test people to see if they matched this unknown profile. Right. Um, Russ, did they record, uh, or in any way memorialize these meetings in writing? No one. So we're talking about meetings with like maybe 10 people in them, more than 10 people.

Yeah. I mean, and I'm talking about DA’s investigators, right? Police officers, these people are meeting together, literally discussing the fact that they don't have a DNA match. Uh, they, they have DNA match that excludes Barry Morphew that could point to other suspects. They're not writing anything down Russ. What's the reason that they're not writing anything down because they do not want to disclose anything. They don't want to discover anything to the defense. This is unbelievable. Russ. I mean, as, as practitioners of criminal law here with over 40 years of experience, Russ and I couldn't think of one example where we've seen something like this in a meeting of that type of importance, there is a designated note taker. Usually an investigator who's writing down everything, who's writing down action items. And that stuff gets discovered to the defense. If they, they, they did the old, Hey, if you don't write it down, there's nothing to provide the defense trick, but it doesn't exist.

Right. And you know, and, and they got caught with their pants down because one of the people at those at that meeting did take notes. Right. She took scheduling notes and, and those notes indicated that those meetings took place. That person was subpoenaed at the preliminary hearing, by the defense, by, by the prosecutor. Right. Right. And only after the defense elicited that information, did it start to come out that, that not only did these law enforcement officers know about this unknown male profile, but they took affirmative steps to make sure that that never got to the defense. Yeah. And that's where we have potential bad action on the, on the DA side. Like I said earlier, mostly this is inept and incompetent. This is the one example where, you know, it, maybe there's, there's some teeth to an argument that this was actually a concerted effort to hide evidence.

Right. And it's, and it's ex again, I keep saying it, but it's exculpatory evidence now. No, I was coming, coming back to this idea that we were talking about a few minutes ago, Russ, where, you know, why, why would the da rush this case? And, and, and truthfully Russ and I are sitting here, don't have a good answer to that question. I don't know. I, I don't know if they have a good answer to this question at this point, but here's what the effect is. When you charge a person with murder, again, that's gonna kick in a bunch of procedural safeguards and rules, um, for all parties. But in particular, the defendant, we have to make sure that this prosecution is fair. It is clear Russ that this investigation was not ready for trial, right. They were literally investigating this case while they're litigating pre-trial motions at trial.

They are, uh, the prosecution starts to MIS discovery deadlines. So, so, um, let me, let me set that up in, in any criminal case, Russ, why don't you tell us what a case management order is and what it requires of the parties? So this is an order that the judge issues, the judge issues, an order to both parties, to the prosecution and to the defense. And it is essentially to make sure that the case is on track for trial. Right, right. Doesn't issue until the case is set for trial, because remember there's speedy trial, which means you have to get the trial, the case to trial within six months. So a bunch of things have to happen, including disclosures, witness, disclosures, expert, disclosures, report, disclosures, all of this stuff that goes through discovery through the process of discovery. And it requires the case management order sets deadlines for various things.

And this is what the da time and time and time again, missed that's right. So what we have here is for example, a judge would say, listen, I, I need you to disclose all of your expert witnesses, all of their curriculum. VTA all of their reports by X state. Okay. And multiple, multiple times, uh, the DA's not only missed deadlines, but like sometimes the, the, they asked for more time, they said, judge, we can't comply with this deadline. Can we have another two weeks? Judge says, sure, go ahead. They missed the next two week extension. Right. Um, so they're missing deadline after deadline. So, so if, if that happens, here's what a judge can do. Yeah. The same. You're talking about the sanctions for a discovery violation. Exactly. So the judge finds like in your hypothetical, or in this case, they missed the deadline, they got an extension.

They missed that deadline. Judge can do four things. Judge can do one, just again, order the discovery order, the release of the material two, the judge can grant a continuance. The judge can say parties more time. Yeah. Yeah. Exec can say, well, defense doesn't have enough time to investigate whatever you failed to discover. So I'll grant a continuance and you can have more time, a quick note on there not to interrupt you. But I think it's important. Uh, the defense never wanted a continuance in this case. Right. Uh, th they knew that the prosecutor was having problems. Yeah. They knew that they were missing their deadlines. It would, it would not behoove them to say, oh, sure. We'll give them more time. They wanted this to get to trial as quickly as possible strategically. Yes. Because the da jumped the gun because as you said, they were still investigating it.

So the third thing you can do, you can prohibit the party from introducing that evidence. Right. So if the da misses a deadline, judge can say, okay, you missed your deadline. You may not introduce whatever evidence you were gonna disclose, um, at trial or, or you can strike a witness that would offer that evidence. Right. And the fourth one is this catchall, whatever judge deems, just essentially, right. So we're gonna get into all of the mistakes the DA's made that caused these discovery violations that led to these sanctions by the judge. But before we do Colin, you know, we've both been DAs and we've been doing defense for, you know, lot a long time. How often is it that you see discovery violations, Colin, honestly, in practice, they're somewhat rare. And it's because most district attorneys' offices, again, have a lot of procedural safeguards just in their office policy, in the flow of information where, you know, they, they do the best they can to comply, uh, uh, for the, for the most part, uh, with their obligations under the law.

So I would say, you know, it, it is somewhat rare. I mean, I'm sitting here, I don't remember a case in the last, uh, six or seven years that I've actually argued that there's been a discovery violation. Um, so there, and honestly, maybe there's one violation in the case and that's, and that's what I was just gonna say. And, and you know, that that is enough to, you know, where the da says, okay, don't let it happen again. And that kind of puts the prosecutor on a notice, okay. I need to get my stuff to the defense. And there's, it usually cures the situation, this case, as we're about to cover is absolutely replete with discovery violations and not, not only of just like, kind of extraneous information related to the case, I'm talking about direct exculpatory information that was either withheld not provided timely or misrepresent misrepresented by the DA's office to the defense team.

And there's, there's some good ones of that. And, and it's, it's really, it's really unusual when a judge, as the judge did in this case, finds a pattern yeah. Of discovery violations. That is significant. That is correct. I, I, I've never seen that in, uh, 20 years of practice, Russ, I've never seen a judge actually find not, not only one, you, you guys are, are engaged in a pattern of violations and to where he needed to address them by excluding 14 of their 16 witnesses. Right. So Russ let's, let's, let's get into some of these, why don't we talk first a little bit more about, uh, the CODIS, um, information and kind of what was withheld and, um, why that was significant? Yeah. So, you know, we've talked about it a little bit. Um, first of all, the fact that, that the DA withheld that exclusion of Barry Morphew, from the initial DNA sample when they filed their affidavit, that is huge because, you know, people we're talking about a guy who will not have the ability to get outta jail, right.

It is a no bond hold. There is no mechanism for him to get out. So the DAS filed this motion knowing full well that there was alternative suspects, there were alternative DNA found at the scene that excluded him. They did not include that in the request to the judge to impose this no bond hold. Right. And that is possibly the most unforgivable thing because this guy is innocent until proven guilty that's right. You know, whether or not he was involved, he's innocent until proven guilty, you know, and, and I will say this, you know, the arrest affidavit does not have to include all of the discovery that the police, uh, investigation has revealed. But I, I, I, in 129 page affidavit, the fact that not even one sentence was dedicated to the fact that they found an unknown, uh, male DNA profile and that they were still investigating that I find particularly egregious not only that, but let's dovetail that into the presentation of facts at the preliminary hearing Russ, right?

I mean, this is an obligation to the prosecutor, basically lay out their case and let the judge know about the case. They did not elicit testimony about this elephant in the room. Right. They just ignored it. The defense actually brought it up with Joe Cahill who were gonna talk more about in a minute. Um, and he was the one who actually finally shed light on the fact that this was something they were spending a lot of time investigating and didn't disclose to the defense. Right. And, and, you know, all of that stuff is, let's be clear. This is, this is not a technical violation of the law, right? Like you said, you know, you don't have to have everything in there. They're not required to include that. But if their role is to be the neutral arbiter of justice and to actually figure out what happened, they sure.

As sure as hell should have <laugh> I agree with that Russ. And, um, so let's, let's go to the next violation that we had. Um, this, this was one that was discovered, um, less than a month before the trial. This, this one's crazy to me too. So, um, back when they were looking for Suzanne Morphew's body, they, they employed the use of a cadaver sniffing dog named Roscoe. Um, and this guy had a real, real quick, it's not just cadavers. It's just, it was, it had her scent you're right, right. Whether she's alive or dead, the dog had her scent. That's correct. That that's a good clarification. So the, uh, the, the, you know, there, this dog is looking for Suzanne Morphew, based on a known scent that she has. And, and he's, this dog is being handled by a guy named Doug Spence. He's the canine handler.

Okay. Now here's, here's what happens? The prosecutor files a motion endorsing this guy, uh, Doug Spence as an expert witness, uh, that would testify that they, the, that the dog never alerted to her scent where the bike was found, and this supported their theory that, uh, Barry Morphew, uh, killed her and then staged the bike and put the bike down near this ravine. Um, you know, to make it look like she was abducted and in their pleading, they actually said that the DA said that in fact, the dog was alerting back towards the house and was trying to run back towards the house, but couldn't get through the Creek. Yeah. Guess what turns out all of that is false. Yes. Okay. And, and, and it's, here's what happened. The dog actually did alert to Suzanne Morphew scent down by the area where the bike was found.

Uh, the dog lost the scent as it approached a river. Um, this is captured on police body cameras, where the dog actually catches the scent and then loses it. So, in other words, the prosecution knew that the dog did alert in contrary to their theory, but not only did they withhold that report from the defense, they misrepresented what the dog did in a pleading to the court saying that the dog in fact, did not make this alert. It, the we're talking about manufacturing, evidence, Russ. Well, well, here's, here's what the DAS say about this. And, you know, take it, take it for what it's worth. You can believe 'em or not. They say that they actually believed that that's what happened. They say that they did not somehow read this dog handler's report until a month before trial, after they had already endorsed him. Right.

So they basically, what they say they're saying is we didn't know this report existed. Once we found it, we disclosed it and we're telling the court right now and that other stuff we said, we, that was consistent with our theory. So, so I guess they still manufactured something <laugh>. Well, this is also the funny part about that. I mean, the disco, you know, when this comes out in open court on March 30th, again, within a month of trial, um, the, the prosecutor says, oh, it's okay. We're, we're, we're not gonna call the sky's a witness. Right. We, we're not gonna use this report. The defense though was like, oh, actually, we're very interested in that report. And we're gonna call him as a witness. This is now exculpatory information. Right? Well, well, because the, the defense didn't know it was exculpatory at the time. Right? Cause the prosecution said, well, because they had no report.

They didn't get anything. They from the handler, they didn't get a report. And the DA says we actually have a report. We, we agree that it was late disclosure. And we're gonna go ahead and stipulate that we're just not gonna call 'em because we screwed up nothing to see here. Right. And so they don't ask any more questions. Right. They didn't offer the report to the defense. They just said, yeah, we, we screwed up. We, we won't use it. I mean, again, that just that one violation, uh, in and of itself, uh, would cause problems for any prosecution, but Russ, what's next? What else do we have? Uh, what we have is the DA's absurd handling of the CBI agent. Cahill yeah. Let's talk about that. Cause remember Cahill's the one who said, yep. We shouldn't go forward. Cahill is the one who testified, who the defense subpoenaed at the preliminary hearing who talked about the alternate suspects who said yes, that, that at some point he said, that was my primary suspect.

Was this out of state DNA hit for, for the crime or the alleged crime. So, so Cahill eventually was reassigned. He was reassigned off of the Berry Morphew case. And he was just literally assigned to some marijuana unit within CBI. Well, that sounds kind of weird. That happened in the murder middle of this murder case that he's participating in. Huh? Tell me more. Isn't that interesting? That ISN interesting. Well, so after he testified at the preliminary hearing, um, and remember, this is where he testified about this CODIS DNA evidence. So after that, the DA of Chay county, Linda Stanley, Linda, Linda Stanley, she didn't appreciate how he testified. Right. She was disappointed in her testimony. Let, let let's talk about, Cahill just in a couple other respects too, cuz he was inconsistent in a couple things Russ, right? When he, when he was called to the stand by the defense, not by the prosecution, but by the defense, in the preliminary hearing, he testified that he never actually saw the 129 page, uh, arrest affidavit at, in its entirety.

He testified that he only read the first 19 pages. Right. But the defense impeached him. They confronted him with an email that Cahill himself authored, telling law enforcement that he read the whole 129 page affidavit in its entirety. And it was riddled with errors, misinformation and was not ready to submit to court. Yeah. Giving critiques and saying it's missing these things, which is consistent with what he said. Right. So, you know, on the stand under oath, he's saying, I only read the first 19 pages yet. He has an email saying otherwise that he read the whole thing. Right. And as all these criticisms and it was consistent with what he said saying that he doesn't want the case to proceed right now that they're not ready. I, I should clarify that. So then Russ, how do we know that he, uh, how, how do we know about his reassignment to the marijuana unit?

Uh, how did, how did that come out? So this is crazy. This is crazy. <laugh> this is crazy because what the defense did is the defense filed, you know, motions and they subpoenaed multiple members of the DA's office and of law enforcement, including the DA herself, Linda Stanley, and the judge allowed all of these DA, DA district attorneys, deputy district attorneys, detectives, and the elected DA to testify about these discovery violations that we've been talking about. That's right. And so Linda Stanley herself got subpoenaed in a case that she is prosecuting unheard of. How often does that has ever happened to Russ? I don't think so. I've never heard of it. Unheard of. And under oath she says, yeah. After the preliminary hearing, I was disappointed in agent kale for, for essentially, uh, his testimony suggesting that she didn't like the fact that he highlighted the fact that he was critical of the arrest affidavit as well as the fact that he believed that the, the unknown DNA sample was someone worth investigating for this murder case.

And she specifically on the stand under oath said that Ms. Stanley was upset that he did not answer questions. As he had been prepped to with the DA who was conducting the examination, mark Herbert, who's one of the, uh, one of the prosecutors, by the way, if that name's in any way familiar, he was the prosecutor who prosecuted cor uh, Kobe Bryant's sex assault case many, many years ago. Uh, just a fun fact. Um, but anyway, but that, that fact, right, that admission on the stand is to me mind blowing it is because she's basically saying, yeah, we did not want him to tell the truth. We wanted him to say what he was told to say so much so that we removed him from the case and had his reassigned to the marijuana enforcement unit. Unbelievable. So basically if you don't like what your cop's gonna say, uh, make sure they're not involved with the case and find someone who, who will stick to the script.

Yeah. I guess is the message here. Right? Ron, who's gonna tow the line. So, um, this is really, really bad and it is no surprise that we got to a place where the district attorney absolutely realized that they had no case. I mean, Russ, the writing was on the wall. Um, the writing was on the wall after they had 14 of their 16 experts, um, excluded. So, yeah. So in, in, in finding this, this pattern of misconduct by the DA's office, you know, the, the, the, the court said, okay, I'm these are discovery violations. There's multiple discovery violations. This is a pattern of behavior. It's the court actually said it it's at least negligent if not reckless behavior by the DA, that that standard might matter later, by the way, very strong language. And, um, so they excluded 14 of the 16 witness, which is, which is a drastic, drastic remedy.

I mean, you're basically gutting the, the prosecution's case. And I, and I think fairly 11 of the 16 were excluded based on the discovery sanctions. Three others were for other reasons, but right. Regardless. So that comes out on the 30th, 14 year 16 witnesses. Prosecution cannot testify. So that is when, just a short time later, Linda Stanley files an 11 page motion to dismiss <laugh>. Okay. So let, let's, let's talk about this, cuz this, I mean, this is again, just another head scratcher <laugh> yeah. Um, Russ, have you ever in your career seen a motion dismiss that was longer than one page? No. All you essentially have to do is say that in the interest of justice, we are dismissing this case. Yeah. You, you do actually have to state a concise reason. Uh, and, and Russ alluded to one of 'em in the interest of justice.

We're dismissing this case. Uh, we can't prove the case beyond a reasonable doubt, right. It, it just that that's all, you have to say a, a reason Ms. Stanley decided to file an 11 page, uh, motion, um, outlining many different things. I, I, I, we are both confused as to why she felt the need to make this a document. So lengthy in Russ, what's noticeable about what does she include about the, in the motion to dismiss that, that just B just has us very puzzled. Well, <laugh> the, one of her reasons in this motion to dismiss is because law enforcement is apparently now two years later, very close on the precipice of finding the body. They suddenly know where the body is. They think, and it's buried under too much of the winter, snow and a mountainous re region. And they need to have the snow melt so they can excavate it and go get the body.

I'll just read right from the motion for a second. Russ, if I may, um, this is from her motion to dismiss, uh, for the reasons express below the people have a good faith reason to believe further investigation into this matter is essential to answering the most consequential present, uh, question presented by the case as this search for a body cannot be accomplished in the coming weeks due to weather and snowpack conditions. The people will respectfully ask this court to dismiss the current indictment against the defendant without prejudice. Uh, basically what they're saying here, and I don't know why she's saying, uh, we need to find that body <laugh> we, we, we gotta find that body. And, uh, without that body, we can't, uh, we can't move forward with this case. She's saying more than that. Like, if, if that's all she was saying, it begs the question.

Well, you couldn't find the body a year ago when you filed it changed. Yeah. What changed? Why did you file a year ago? Exactly. Right. But what she's saying is she said it in there, she has a good faith basis to believe that they're gonna find it soon. Okay. If that's the case, Colin, if that's the case, that is evidence that needed to be disclosed to the defense. Right. But in, in her press conference, talking about this case, Iris Aton, who is the defense attorney for Mr. Moore, you basically said, uh, that was news to me. <laugh> right. Uh, we, they apparently are zeroing in a location where they think the body's found, we don't know have anything about that. Um, and by the way, here's what I, I'm stuck on. Why mention that Russ, you, you don't need to mention that as the DA you can dismiss, like I said, she's the DA, she brought the charges.

She can dismiss them at any time before trial. What's the point of saying, we think we're close to finding the body. I mean, maybe she thought the judge wasn't gonna grant the dismissal. I, I, I don't know. I mean, I, I, I don't know if that is some sort of tactic, if it's, if it's like supposed to tell, Hey, Barry Morphew, we're, we're closing in on you. Maybe, maybe, maybe you should go back and see if you can dig up the body and move it. Maybe they're gonna, like, she's, she's flushing the rabbit. <laugh> I don't know what she's doing, but, uh, the point is I like it. It's so bizarre because now all of a sudden she's saying, we, we really turns out we really need to find that body. It turns that that might be an important piece of evidence. Right. Essentially the only thing she really needed to do was show that it's not in bad faith.

Right, right. That's, that's the standard. As long as the dismissal isn't in bad faith. So, um, here's, here's, here's the question then. Okay. DA just had 14 of their 16 witnesses suppressed or excluded right. Of their experts that they really need. Right. To try, try to prove this case. Okay. So they dismiss, they then refiled because they asked for a dismissal and it was granted what's called without prejudice, which means they have the ability to refile in the future really at any time, any time. Right. Um, so they still can bring this case again. Mm-hmm <affirmative> they can refile it. So the question for me becomes is are those experts in a refiling still excluded or not? And I, I have an opinion on this. Go ahead. So my here's my opinion, if they can prove, if the prosecution can show that the, this was not made, this decision was not made in refiling, the dismissal and refiling were not made in order to circumvent that court order, then I think they probably can have those witnesses again.

Right. I think they probably can. But if they're like, if I'm the defense, I am just doing back bends to try to make the argument, which is very plausible that, Hey, the only reason they dismissed was because this was excluded, that was a sanction for their bad action earlier. Right. You can't let them get around that sanction and have that bad action unpunished by letting them just refile in six months. Right. It's probably gonna be taken up witness by witness. And, but I, I do think that, uh, if there are gonna be charges that are refiled, um, the judge can absolutely look back at previous court orders. Right. And look at the misconduct of the district attorney. And, and, and like Russ said, I mean, I'll, I'll give credit to Ms. Stanley for one thing, the only move she had in this case was to dismiss it.

If she had taken this trial, two things would've happened. He would've gotten acquitted. I'm pretty confident about that. Yeah. And second of all, jeopardy would've attached, which means that if, if they found Suzanne Moore, you five deers down the road, or even if Barry confessed and said, yep, I did it. They wouldn't be able to try 'em again. Um, so the dismissal without prejudice, at least allows for the possibility of retrial, but Russ, that's not the end of their problems. I mean, all of this disagreement with law enforcement, between CBI and Shay county, all of that's gonna come into evidence. Yes. All of that has now come to light that can be used against them. Um, the, the misconduct of the DA, um, and, and her motives behind this prosecution, I think are gonna be fair game. All of that's fair game. It all goes to motive and credibility of the prosecution.

And so if it gets refiled, like you said, I mean, if I'm the defense, I'm making this case all about the DA's ineptness incompetence and just vindictiveness to try to get, try to fit what I just characterize as the defense attorney, as a square peg, into a round hole. Exactly. Exactly. So, um, yes, a Fu a future prosecution can happen. Um, but I, I don't think that makes the case really much better for the district attorney. I, I, I'm gonna, you know, we're fond of predictions on this show. I'm just gonna throw it out there. I'm predicting. He's never gonna be retried. I, I, I mean, honestly, at this point it seems pretty unlikely that Ms. Morpheweus gonna be found. Right. Um, I mean, I'm just saying that because we're basically about two years removed from her disappearance. Um, we know that the longer, the time period goes by the less chances are of recovery, but even, even if she, her body is recovered, I think this is gonna be a very, very difficult prosecution.

So we'll see. What do you think, Russ? I agree with all that. Yeah. Um, let's just close out this discussion. Uh, we alluded to this in our last episode, um, where, where we, we, Ross was talking a little bit about, you know, the fact that there is such a thing as prosecutorial misconduct and that sometimes it can be so egregious that, um, on a really rare circumstances, um, a district attorney or a police agency could be subject to C either civil or criminal liability. And I guess what I wanna talk about here is Russ. I I'm looking at, at all of this, I'm looking at this botched prosecution. I don't think there's any other way you can label it. I mean, this, this was, this was fraught with issues from the very beginning. It should have never been charged, uh, at, at least at the time that it was replete with issues.

Um, I am wondering if, uh, Barry Morphew has an action against either the, uh, Shay county Sheriff's office, the Colorado bureau of investigation, or, uh, the 11th judicial district attorney Linda Stanley, uh, due to the misconduct in this case. Here's what I'm looking at. I'm looking at a guy who spent five months in jail, um, really, uh, on the basis of mischaracterized or omitted information. Right. I don't think we can call it anything but that, um, do you think that he has the potential cause of action against these parties based on what you've seen in this case? I think he absolutely has a potential cause of action. You know, how good it is. Um, I don't know, but this is one where I would be shocked if he's not exploring that because he has five months in jail for a crime that was ultimately dismissed where the DA excluded omitted information that was very relevant to whether he should have been held for five months without the possibility of bail.

Um, there is absolutely a case there, um, certainly for civil damages now, criminal, I, I don't see anything that rises to that level. Um, I think it gets close mm-hmm <affirmative>, you know, but I don't, I don't think there's, I agree. And, and look, you know, going back to that discovery violation that the judge found it, it was, I think it's very important. Actually, he, he said that the D the, the district attorney was negligent, perhaps reckless, but he specifically said this was not willful. Right. What that means is he says, I don't find that the DA is intentionally right. Withholding information. They basically, he basically characterized that this was sloppy, right? This was poorly handled, um, instance after instance. Um, but you know, that, that is the standard where, you know, because it wasn't intentional, I don't know if there's gonna ever be criminal liability on the part of these folks, but certainly civil liability you well, and she's probably, uh, gonna face a pretty tough, uh, reelection battle.

<laugh> right. No, look, um, you know, one thing I wanna mention is I don't wanna lose the fact that there is a missing woman in this case, and that we don't know what happened to her. And, and I know that the, that there's a lot of people in the community that still very, very much believe that Barry Morphew was the cause of her disappearance. Look, you know, we, we understand that sentiment and, and we're not, we're not sitting here telling you that, that Barry Morphew, uh, you know, didn't do something wrong. In this case, we are focusing on the procedural nature of what happened in this case and the actions of the district attorney in law enforcement and, and whether you believe that or not, or whether it's even likely or not, you know, the standard in our criminal justice system, isn't, someone's guilty, someone's likely guilty, right?

It's guilty beyond a reasonable doubt. And it's built on the premise that you'd rather have, um, you know, 99 guilty men go free than one innocent man, go to prison. And, and, and, and Russ I'll tell you what, that, that makes me really blame the prosecution so much more in this case is because they went into this whole thing, eyes wide open. I mean, remember a year went by from the time she disappeared to the time that they filed the arrest warrant, they knew, or certainly should have known how difficult this prosecution would be to be successful without a body. I mean, we, we, we did a whole podcast in episode 61 talking about how difficult it would. I mean, not only do you not have a body, you don't have a murder weapon, you don't have crime scene. You don't have a time of death. This case had challenges from the very beginning and the DA's office couldn't have gotten more in their own way on this case. Yeah. I, I couldn't agree more. We, I think we're in agreement that neither of us think very highly of, uh, Ms. Stanley in her office, just based on the handling of this case. So, but at this point, let's, let's get to something a little lighter, a little more funny, a little more dumb, perhaps Russ,

It is time for D CT w that's right. The dumb criminal of the week. You know, we didn't get to, and is this legal section of this podcast, cuz uh, we had so much information. We wanna provide you about this case, but Hey, we're not gonna, we're not gonna ski you out of the dumb criminal. No we're gonna, we're gonna definitely, we, we will never miss a dumb criminal of the week. <laugh> and that is a promise to you. The listener Russ, you're up, man? What do you got for us today? So I'm going back to our favorite state Florida. Yes, but what I'm but we might as well just call it the Florida criminal of the week. I mean I Florida criminal of the week, I think they've dumbly been from Florida, the dumb Floridian of the week. Right. But I'm to be fair, I have chosen a, uh, dumb criminal.

That is actually an attorney. Oh, so wow. I'm I'm picking on us man. So in Florida, I couldn't get this guy's name, but it is a real estate attorney in Florida who is in a ongoing dispute with a client about $20,000 of unpaid legal fees. Uh oh. So this lawyer rolls over to the client's home in Florida. Um, the client's home in Florida happens to have cameras everywhere. So, um, goes rings. The doorbell multiple times is clearly agitated, goes around to the back where the client has a nice pool, starts off by kicking a bench into the pool. Okay. Um, take that pool. Yeah. <laugh> take that bench. Take that bench. Take that pool. The bench can't swim. <laugh> it's got no chance. It's drowning. He doesn't save it. Instead. He goes to the pool filter. He removes the pool filter. So now the bench is drowning in a dirty pool Uhhuh.

He, then he then takes the filter, throws it in the back of his pickup truck. Um, probably brought the pickup truck for that purpose. <laugh> goes, you never know how big a pool filter's gonna be. Right. Better have that pickup truck goes, goes back to the front, takes this man's American flag, old glory that he's flying there, throws that in the back of his pickup truck. Wow. Then peels out dumping the filter as he makes a quick turn out of the back of his pickup truck and it takes off clearly he was easily identified by his client. He was shortly arrested, charged with grand theft and criminal mischief, probably facing problems with the Florida bar. I would imagine too. And I'm gonna say he's losing his, uh, legal license. Wow. Um, what, what do you say, Colin? How many knucklehead for this? This is an easy five for me. Okay. Um, man, because look, we lawyers look, sometimes we get stiffed, right. You know, sometimes you just get ex client signed up who doesn't pay or doesn't uh, honor their fee agreement. And that's where we send that's when we send people. Right. We don't go. So we're not gonna get our hands dirty. <laugh>

For what? A criminal defense don't do the work yourself guys, you know? So, uh, yeah. Um, no, he, he, he didn't hire a, you know, couple of, uh, pipe wielding thugs to go over, pay this guy visit. He took matters into his own hands which is just always a terrible move. Um, but yeah, this, uh, this, this is bad stuff. He's an attorney, so he should know better. I mean, the cameras and the disregard for them. I don't, I don't know what he was thinking. I mean, what are we doing? Stealing the guy's flag. Right, right. What, what, who does that? He was trying to, trying to ruin his, his reputation as a good American. Right. And then the, I mean, this is all so silly and unnecessary, and obviously this guy's, uh, uh, temper got the better of him. Right. But man, you can't let that happen.

So five, five knuckleheads for me. Yeah. I give it, I give it four and a half just because it was clearly brought on by a loss of temper. Okay. You know, so I'm gonna give him half a half a knucklehead grace for that. So, uh, Florida real estate attorney, who is no longer a real estate attorney or an attorney of any kind, you got nine and a half knuckleheads. <laugh> right. Probably got nine and a half months. We'll see. Uh, well I think, uh, we'll call it that. Listen, uh, we've gotten a lot of feedback from our listeners lately. We really, really appreciate that. Um, you know, we would love to know what you think. Do you think that, uh, Barry Morphew is a stone cold killer who just got away with murder. Do you think that, uh, the prosecution got a bad rap here? Do you think that this thing was unjustified? Let us know several ways to contact us. You can email us at, uh, Denver crime law, uh, at gmail.com. Find us at our, uh, Hebets and McCallin Facebook page. What's our Twitter handle. Russ is this legal pod. That's right. Drop us a line. Let us know, uh, what you think and as always keep it legal

You've been listening to Is This Legal. See you next time.