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Judge grants motion to dismiss charges against Barry Morphew in wife Suzanne's disappearance

Sneak peek: The Suzanne Morphew Case: Nothing Is What It Seems
Sneak peek: The Suzanne Morphew Case: Nothing Is What It Seems 03:38

In a high-profile case that has already seen numerous and sometimes odd twists and turns over the past two years, including most recently, crucial judicial sanctions, a judge agreed to dismiss all charges against Barry Morphew, without prejudice, just nine days before he was to stand trial for the first-degree murder of his wife and mother of their two daughters, Suzanne Morphew

Prosecutors, who can re-file charges in the future, filed a motion to dismiss the indictment minutes before a pre-trial conference on April 19, 2022, with DA Linda Stanley writing they need to investigate further and believe "we are close to discovering the victim's body."  Stanley also cited the court's decision to exclude "several key expert witnesses initially endorsed.  Without this crucial evidence and without the victim's body, the People cannot move forward at this time in good faith."

Barry Morphew and daughters
Barry Morphew, alongside his daughters, walks out of the Fremont County Courthouse in Colorado, a free man after all charges against him are dismissed on April 19, 2022. KKTV

"First I want to say that Mr. Morphew not only was presumed innocent and still is presumed innocent, he is innocent," Morphew's attorney, Iris Eytan, said at a press conference after the charges were dropped.  In response to the State pointing to the need to find Suzanne's body, she said, "Forever they have stated that they don't need a body — that a body is irrelevant.  But you need to know, that in this case, there has been not a single ounce of physical evidence that has been found connecting Mr. Morphew to this … alleged crime."

Since Barry Morphew's arrest, his defense attorneys had asked Judge Ramsey Lama, multiple times, to dismiss the charges against him. Over the past several months, they pressed the judge to issue severe sanctions on the prosecution for failing to turn over potentially exculpatory evidence ahead of trial.  And the judge imposed damaging sanctions, including barring 11 of their 16 endorsed expert witnesses — among others, experts in DNA, vehicle data and a cell phone data analyst, as punishment for violating discovery rules. In all, the Court excluded 14 of the prosecution's expert witnesses.  The judge found that DA Stanley and her team repeatedly missed deadlines and failed to turn over important information, writing, "The People's actions amount to negligent and arguably, reckless disregard" for their discovery obligations.

In earlier filings, prosecutors said that the Court did not find willful misconduct associated with any discovery violations, noting "ultimately the sanctions imposed greatly damage the People's case, tantamount to dismissal, for late disclosures that were not greatly prejudicial, but rather technical in nature."

"48 Hours" correspondent Peter Van Sant updates the case in "The Suzanne Morphew Case: Nothing is What It Seems," airing Saturday, April 30 at 9/8c on CBS and streams on Paramount+.

When Suzanne Morphew, a Colorado mother of two girls, vanished on Mother's Day in May 2020, authorities wondered if she'd been abducted or if her husband Barry — whom she had threatened to divorce — might have killed her.

Investigators never expected the case would have so many bizarre twists and turns and eventually involve a chipmunk alibi, a tranquilizer gun, a "talking" truck, mystery DNA and a spy pen right out of a James Bond film.

"This case is incredibly unique," says Aya Gruber, a law professor at the University of Colorado at Boulder. "When you started to dig a little bit deeper, nothing is what it seems."

Barry and Susanne Morphew
Barry and Susanne Morphew Facebook

Gruber studied thousands of pages of public documents from the prosecutor, investigators and defense attorneys.

Suzanne was reported missing on May 10, 2020. She'd been alone that day because her daughters, Macy, 16, and Mallory, 20, were off on a church-sponsored camping trip and planned to return home later that Mother's Day.

At the same time, Barry Morphew told investigators he had left the home early in the morning to drive to a job site some three hours away. He said the last time he saw his wife of 25 years was when she was sleeping in their bed. 

After Suzanne was officially reported missing by a neighbor, investigators began to examine Barry's story. Friends and relatives told investigators that the marriage was troubled, and agents found a deleted text from Suzanne to Barry on his phone that read: "I'm done. I could care less what you're up to and have been for years. We just need to figure this out civilly."

But 10 days after Suzanne disappeared, agents were pulled in a different direction when they found a so-called spy pen belonging to Suzanne. The spy pen has a long battery life and is designed to look and write like an ordinary pen.

But it has one extra feature: it is voice-activated and records conversations. Suzanne had acquired it, she told a friend, because she suspected Barry was having an affair and she hoped to use the pen to gather evidence. But the plan backfired.

Investigators listened to what the pen had recorded and, although there was no evidence of Barry having an affair, they say they heard "intimate" conversations between Suzanne and someone named Jeff.

It was another twist in a case filled with them.

Without knowing who Jeff was or his location when Suzanne went missing, they could not eliminate him as a person or interest. It took FBI agents six months before they uncovered his identity: Jeff Libler, a man both Suzanne and Barry knew from their Alexandria, Indiana, high school. Jeff and Suzanne had had a one-time fling after graduation, and she'd reached out to him in 2018 after the Morphews moved to Colorado with a Facebook message that read simply: "Howdy stranger."

"And from that moment they had talked almost every single day nonstop," said Ashley Franco, a reporter for KKTV, the CBS affiliate in Colorado Springs, who has covered the story from the beginning.

That was enough to ignite a nearly two-year love affair. Jeff had a wife and six children. He lived in Michigan and claimed to be there with his family on the day Suzanne vanished.

Agents eventually discovered the lovers had spoken to each other for dozens of hours, often communicating via secret accounts on WhatsApp and LinkedIn. Jeff also admitted that they met for romantic rendezvous in New Orleans, Florida, Texas, Michigan and Indiana.

After Suzanne disappeared in May 2020, Jeff did not contact authorities. Instead, agents say, he deleted the accounts where he had communicated with Suzanne.

"What he did was delete all his social media accounts that he had used to communicate with Suzanne," says Gruber. "He's got a lot to lose if revelations of this affair come out."

Jeff reportedly told agents he did not want to tarnish Suzanne's memory, but he also told them he worried that he'd lose his wife, children and job. He also worried he might be considered a suspect. "He asks the agents, 'Am I a target?'" says Gruber.

After agents confronted him, he did cooperate, providing a sample of his DNA and passwords to the deleted accounts. Investigators eventually were able to retrace the couple's steps and recovered texts by tapping into the iCloud accounts of Jeff and Suzanne.

Jeff was able to provide receipts for a home goods store he'd visited in Michigan on the day Suzanne vanished and he was eventually cleared.

Investigators still had their suspicions about Barry Morphew. They never uncovered any evidence that he was having an affair, but investigators found his actions on that Mother's Day weekend to be suspicious.

Morphew property
Cell phone records appear to show Barry Morphew's phone pinging all around the house on May 9. When asked about this unusual phone activity, Barry told investigators he was running around the property shooting chipmunks, which Barry says were a constant nuisance. Chaffee County District Court

They asked Barry why his phone seemed to be pinging all around his house on the day before Mother's Day and he told them he must have been out shooting chipmunks, which he said were a constant nuisance at the house.

It was perhaps the world's first chipmunk alibi, but Barry stood by it, saying he'd shot 85 chipmunks in the two years he owned that Colorado house.

"And then that confession to shooting chipmunks becomes a major piece of incriminating evidence against him," says Gruber.

Van Sant asked why. "Because [agents are] saying, 'Well, you know, now he's admitting to having run around the house. And this is a ridiculous explanation, so it must be the explanation of a guilty person,'" says Gruber.

What's more, there was no evidence of any chipmunk shootings around the house and neighbors did not recall hearing any type of disturbance during that period of time.

Cases sometimes turn on the smallest of things and, in this case, agents seized upon just such a small item.

Morphew evidence
Investigators discovered this clear plastic needle cap in the Morphew family's dryer. Chaffee County District Court

Agents had found a small clear plastic cap in the family's dryer that they believed was from a syringe used to inject chemicals into a tranquilizer dart. Barry acknowledged he knew how to inject chemicals into a dart and that he'd shot many deer for trophies and so he could get their antlers. His garage was filled with deer heads and a pile of antlers. However, there was no working tranquilizer gun found in the home and authorities say Barry's DNA was not on that plastic cap.

Even so, investigators developed a theory that Barry had shot Suzanne with a tranquilizer gun and then chased her around the house before she passed out. They found a door frame that was broken and suspected there had been a confrontation.

Agents also tapped into a new investigative tool called digital vehicle forensics. They pulled data from his Ford truck's many computers and got the truck to "talk" to them. They learned that when Barry said he was sleeping, the truck's doors were opening and closing.

He was arrested and charged with first-degree murder and other crimes in May 2021. Suzanne's body has not been found and prosecutors presume she is dead. Barry eventually pleaded "not guilty."

But at the eleventh hour, there was one more twist revealed for the first time publicly at a preliminary hearing to determine if there was enough evidence for probable cause. 

Prosecutors admitted at a hearing held in the summer of 2021 that their own forensics team had uncovered DNA evidence that threatened to destroy their case against Barry. State technicians had found DNA on the glove compartment of Suzanne's car that partially matched an unknown male connected to three unsolved sexual assault cases in three different cities. 

Barry Morphew and Jeff Libler were excluded from that DNA sample which meant there was a chance Suzanne had fallen into the hands of a sexual predator. "This DNA discovery is so significant," Gruber said. "All of a sudden, the seemingly implausible becomes more possible."

Judge Patrick Murphy wwas candid in his assessment of the case, saying it could go either way before a jury. He found enough probable cause to put it over for trial but ordered that Barry be released on $500,000 bond, observing that he thought there was not "a fair likelihood" that Barry would be convicted by a jury. Barry entered a plea of not guilty to the charges.

Barry Morphew raised the bond money and is free awaiting trial.  Judge Murphy disqualified himself because of a potential conflict of interest involving a witness, and Judge Ramsey Lama was appointed in January 2022.  Morphew's trial, which was moved from Chaffee to Fremont County, Colorado, was scheduled to begin on April 28. 

Then, on April 19, Stanley and her team filed the motion to drop all charges, without prejudice, until they gather more evidence.  But Morphew's attorney, Iris Eytan, argued that the case should be dismissed with prejudice so that it cannot be refiled.  The court dismissed the charges without prejudice.

At the press conference outside court, Eytan made it clear her opinion that her client should never have been charged. 

"These charges were false from the beginning … The prosecution was manufacturing a murder case," she said.  "You've seen shows called 'Making a Murderer?' That's what was happening here in this courtroom … They absolutely dismissed this case at this point because they knew they were going to lose this trial and Mr. Morphew was going to be acquitted and exonerated."

"Barry Morphew loves Suzanne Morphew," Eytan said. "He loves her and he misses her and he wants to know where Suzanne Morphew is.  It's a big question mark … Definitely there was not any evidence, even close to convicting him of murder of his wife."

As investigators continue searching for Suzanne Morphew's body, focusing on a "remote and mountainous region nearby the Morphew residence," as the DA wrote in her motion, waiting for five feet of snow to melt before they can safely excavate the area, Barry Morphew, alongside his daughters, walked out of the Fremont County courthouse a free man. With all charges against him dropped, his bond is lifted, his GPS ankle monitor removed, and his passport returned.  And about 1,000 people who had been summoned to appear for jury selection are released.    

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