Barry Morphew’s attorney tries to get dismissal ruling changed to avoid being re-tried for murder

CHAFFEE COUNTY, Colo. (KRDO) -- Attorneys for Barry Morphew, the Chaffee County man previously arrested and charged with the murder of his wife Suzanne, are trying to change his dismissal ruling from without prejudice to with prejudice.

Cutting through the legal jargon, the main difference between the two dismissals is whether or not a person accused of a crime can be re-tried in a court of law. In April 2022, a Fremont County Judge ruled that Morphew can be re-tried by dismissing the case without prejudice.

Now, in a motion filed on April 18, elected District Attorney Linda Stanley states that Morphew's Attorney Iris Eytan is asking for a judge to set a date when this dismissal ruling can be changed. Stanley argues in the motion that, "Crim. P. Rule 55.1(7) in no way states a court can change a dismissal without prejudice to a dismissal with prejudice at a date certain," Stanley's motion reads.

13 Investigates spoke with Colorado Springs attorney Jeremy Loew, who states this kind of change in ruling would be "almost unheard of."

"I really can't think of a situation where the judge has dismissed a murder case with prejudice, but this case is different than almost 99% of other cases. This is a no-body homicide. There are discovery violations and it's one thing after another," Loew said. "So while it would be shocking that the judge would convert this to a dismissal with prejudice, it's not necessarily surprising given how much just weirdness has surrounded this case."

Court documents say Morphew's attorneys are also trying to limit public access to certain court records. While the contents of those documents remain a mystery, the motion filed by Stanley says they involve "whether the victim’s statements may come in under CRE 807, after a case has been dismissed."

"CRE 807 are statements that Suzanne made. What happens is if you are charged with somebody's death, those statements that person made are an exception to hearsay. So if she made those statements but you made her unavailable by killing her, then her statements are an exception to hearsay. Hearsay is an out-of-court statement that goes to the truth of the matter asserted made by somebody," Loew explained.

What statements Suzanne made are unclear. None of the court documents filed in the case since it was re-opened on May 23 outline what specific statements the victim made that the defense wants to keep out of the public eye.

Loew said he believes Morphew's defense team's posturing to get the dismissal ruling changed is because he could be subjected to depositions after filing a $15 million dollar civil lawsuit against various prosecutors and investigators last month.

Depositions allow attorneys for any of the people Morphew has sued to interview him, effectively allowing anything he says to be used against him in criminal court if the prosecution decides to re-try the case.

"Barry could go in and start saying any number of things in the civil case and there's nothing that can be done to prosecute him if it's dismissed with prejudice," Loew said. "Morphew's attorneys are posturing to say these depositions are going to come in this civil case. Before that happens, we want to get this changed to with prejudice so that he can say anything he wants to try to get $15 million."

In Colorado, there is no statute of limitations on murder charges. What that means is that time can never "run out" on the prosecution's ability to re-file a case against a person previously charged with murder.

If Linda Stanley in the prosecution decides to refile the case, I think it would be extraordinary, without a trial, for the court to dismiss a homicide case with prejudice," Loew said.

Morphew is back in court on June 26 for a "hearing," as listed on the Fremont County criminal docket. Loew believes much of the hearing will surround limiting the public's access to certain sealed documents.

If a judge decides to change the dismissal ruling to "with prejudice," Loew believes Stanley will appeal that ruling to the Colorado Supreme Court.

13 Investigates reached out to Eytan and Stanley for comment on these motions and the re-opening of the murder case against Barry Morphew. Stanley declined to respond. Eytan said the June hearing was a "procedural one about a sealed pleading that was filed by the DA’s in March 2022." However, Eytan was not available for an interview.