Barry Morphew was charged in 2021 with the murder of his wife, but prosecutors ultimately dropped the criminal case after a series of stumbles. Morphew sued numerous parties tied to the prosecution, including the elected district attorney who oversaw the case and who is facing discipline for her role in it, individual prosecutors that worked on it and police officials who helped investigate it.
But U.S. District Judge Daniel D. Domenico found Tuesday that even when accounting for statements Morphew asserted to be false and potentially exculpatory evidence, prosecutors still had probable cause to charge Morphew with murdering his wife, citing "hundreds of facts" supporting his arrest that Morphew hadn't disputed.
"Even with the full picture as plaintiff has presented it in his complaint, there was still evidence that plaintiff had a motive, means, and opportunity to kill his wife; that his alibi was fabricated (as it was uncorroborated and supported only by his own self-serving statements); and that his credibility was dubious (given his conflicting statements to investigators)," Judge Domenico wrote. "By any reasonable, objective measure, this evidence goes well beyond the standard required for probable cause to arrest and charge plaintiff for the murder of his wife."
Among the conclusions that the judge wrote the evidence would communicate to an objective observer were that Morphew "was controlling and both physically and emotionally abusive, according to his wife," that he suspected her of cheating and that they fought often, that she attempted to break up with him a few days before her disappearance, that Morphew's behavior was unusual the day of her disappearance with his early morning departure on a Sunday that was also Mother's Day, and that he sold off assets and started dating another woman shortly after his wife's disappearance.
Despite finding there was probable cause, Judge Domenico panned Morphew's prosecution and noted the recent disbarment decision against 11th Judicial District Attorney Linda Stanley, in part for failing to adequately supervise the team working Morphew's case.
"Plaintiff, like anyone accused of a crime, deserves better than what happened here," Judge Domenico wrote. "The people of the state of Colorado, on whose behalf and in whose name the charges against plaintiff were brought, deserved better. And Suzanne Morphew certainly deserved better."
Despite the problems with the prosecution's case, the judge wrote, "not every unwise decision is unconstitutional, and the legal (if not ethical) standard for an arrest does not require the same level of certainty as that for a conviction."
Judge Domenico also dismissed claims against certain law enforcement officials connected to the prosecution, finding that even if there wasn't probable cause, Morphew hadn't tied activities like reviewing his arrest affidavit to his injuries caused by the actual filing of the arrest affidavit and his prosecution, noting that Morphew's complaint pointed "to the prosecutors as ringleaders" and alleged that a Colorado Bureau of Investigation agent included as a defendant in the suit actually pushed back against the filing of the arrest affidavit at that time.
Further, Judge Domenico found all the prosecutors and law enforcement officials in the case were entitled to qualified immunity on Morphew's claim for failing to intervene, since that claim only started applying beyond excessive force contexts in late 2022, so it wasn't clear that such a failure to intervene would be unconstitutional.
And while the allegations in the complaint better support claims against the prosecutors, Judge Domenico wrote, they're all entitled to absolute prosecutorial immunity since their participation in the creation of the arrest affidavit is clearly part of their roles as prosecutors.
And while the police investigator who signed the affidavit doesn't have such immunity, he still has qualified immunity because there was probable cause for the arrest, or at least it wasn't clear that there was no probable cause since Morphew "had a motive and an opportunity to kill his wife, dubious credibility, and a suspicious alibi."
The judge found further federal claims, like conspiracy, were too vague and conclusory to stand and declined to consider Morphew's remaining state claims.
In his conclusion, Judge Domenico floated the idea that maybe the bar shouldn't be so high for plaintiffs in situations like this, but noted that wasn't something he could do anything about.
"Perhaps plaintiff is right that immunity doctrines ought to be revisited and it should be easier to sue those who mishandle prosecutions like this for damages in federal court," the judge wrote. "But that is a question for another day and another court."
In an email to Law360 on Tuesday, Morphew attorney Iris Eytan of Eytan Law LLC pointed to passages in the order critical of the handling of the prosecution, and wrote that Morphew "has every intention to continue this legal battle."
"Barry Morphew, who should not have been arrested and was wrongly prosecuted, has no recourse to get the costs of the damage to him back from the offending prosecutors because they cannot be sued in the United States," Eytan wrote. "While DA Stanley must pay back costs to the Supreme Court lawyers who fought for her disbarment, and she is being asked to pay back Fremont County for costs of her defense, the law shields her from reimbursing Barry Morphew for wrongly locking him up and prosecuting him."
A spokesperson for the Colorado Bureau of Investigation and counsel for former 11th Judicial District Deputy District Attorney Mark Hurlbert declined to comment.
Counsel for the other defendants did not immediately respond to requests for comment.
Morphew is represented by Jane Holse Fisher-Byrialsen and David Nathan Fisher of Fisher & Byrialsen PLLC, Hollis Whitson and Eric Samler of Samler and Whitson PC and Iris Eytan of Eytan Law LLC.
The Chaffee County defendants are represented by Nicholas C. Poppe and J. Andrew Nathan of Nathan Dumm & Mayer PC.
Eleventh Judicial District Attorney Linda Stanley is represented by Leslie L. Schluter of Dagner Schluter Werber LLC.
Alex Walker and Jeffrey Lindsey are represented by William T. O'Connell III of Wells, Anderson & Race, LLC.
Scott Himschoot is represented by Andrew R. McLetchie and Rachel L. Bradley of Fowler Schimberg Flanagan & McLetchie PC.
Mark Hurlbert is represented by Eric M. Ziporin, Jonathan N. Eddy and Courtney B. Kramer of SGR LLC.
Joseph Cahill is represented by Scott Aaron Neckers, Robert I. Lapidow and Sarah A. Thomas of Overturf McGath & Hull PC.
The Colorado Bureau of Investigation defendants are represented by Kathleen L. Spalding, Jennifer H. Hunt and Dmitry B. Vilner of the Office of the Colorado Attorney General.
The case is Morphew v. Chaffee County et al., case number 1:23-cv-01108, in the U.S. District Court for the District of Colorado.
--Editing by Kelly Duncan.
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