by D.J. DeJong
Mail Staff Writer
While 11th Judicial District Chief Judge Patrick Murphy did not impose sanctions for misconduct on the prosecution in the case against Barry Morphew, he ordered Thursday that several items of delayed discovery be provided to the defense within seven days.
On May 27, Murphy ordered that discovery be provided to the defense by June 2.
While a terabyte of discovery was provided within the time allotted, some of that evidence was unreadable by the defense and had to be provided again.
Defense attorney Iris Eytan listed other items the defense had not yet received from the prosecution at the time of the filing of the motion that was the subject of Thursday’s hearing.
• Mirror copies of iPhones owned by Barry, Mallory and Macy Morphew, which have since been provided
• A spy pen recording that was enhanced by the FBI so as to be decipherable. The prosecution was given seven days to produce a copy.
• Access to Suzanne Morphew’s iCloud, which was provided by July 12.
• Data from two laptops and a Kindle taken from the Morphew home. The prosecution has seven days to provide the court the status of any discrepancies in the information discovered and received.
• Data from nine other electronic devices. The prosecution has seven days to get the information to the defense.
• A witness’s cellphone data. The prosecution must provide data or status within seven days.
• 26 exhibits displayed during an FBI interrogation of Barry Morphew. The prosecution has seven days to provide the defense with a report by the FBI and/or a copy of the exhibits.
• Body camera evidence, which had been given to the defense before Thursday’s hearing.
• Emails from law enforcement entities. Murphy asked Eytan to file a pleading.
Deputy District Attorney Jeff Lindsey told the court there was no misconduct on the part of the prosecution.
He said the case is “massive” and a number of law enforcement agencies are involved.
Murphy said the prosecution did provide an enormous amount of discovery by June 2.
He said this is not a situation where there has been no discovery, but some discovery has been late or there have been technology difficulties.
Murphy said the discovery process between prosecution and defense could have been better coordinated, and he hoped it will be better moving forward and that discrepancies were the result of the enormous amount of information.
A request for a sanction of reducing the charge from first- to second-degree murder was denied, as was a request for bail based on the case not being a capital one.
Murphy said the way he interpreted the death penalty law, the Morphew case was a capital case since the offense of which he is accused happened before July 1, 2020, at which time the death penalty was abolished in Colorado. Therefore he would not set bail.
Dru Nielsen, Morphew’s other attorney, asked that the time be split evenly during the upcoming preliminary hearing and proof-evident and presumption-great hearing to provide time for both sides to interview the prosecution’s witness list of 18.
Lindsey agreed to highlight the witnesses he would definitely call, and Murphy said there may be extra time available in the week after the final day of the hearings, Aug. 25.
The hearings, set for Aug. 9 and 10 and 24 and 25, will not be eligible for expanded media coverage. Murphy said he has no intention of having the hearing available to the public by Webex.
Because the court has the approval of Chaffee County Public Health, Murphy said, the hearings will be held only in person with limited seating of 25-26 people with 3-foot distancing and masks.
The first day of hearings is scheduled to begin at 8 a.m. Aug. 9.