Lawyers for 19 law enforcement officers who worked on the arrest and failed prosecution of Barry Morphew on Wednesday made their various cases for dismissal of a lawsuit the widower filed against them in federal court.

In May 2023, Morphew sued key case investigators and prosecutors for allegedly violating his constitutional rights. In the complaint, he even sued the Chaffee County Commissioners.

Four months later, Suzanne Morphew’s remains were found and an autopsy report discovered that chemicals used to tranquilize deer and other wild animals were found in the bone marrow of a femur.

That discovery “definitely changed the landscape” remarked Morphew’s attorney Hollis Whitson in court Wednesday, referring, she said later, to the fact that Morphew had not received several items which belonged to him.

At the motions hearing in Denver’s  Alfred A. Arraj Federal Courthouse, defense attorneys asked U.S. District Judge Daniel Domenico to apply absolute and qualified immunity and toss the case.

Morphew civil attorney Iris Eytan argued that prosecutors are not entitled to absolute immunity and called the circumstances “egregious.”

But it wasn’t the attorneys’ arguments that caught people’s attention during the nearly three-hour motions hearing.

Instead, it was comments made by the presiding judge.

In questioning Morphew’s attorneys, Judge Domenico stated several times that Barry Morphew is “still being investigated” for the alleged murder of his wife, Suzanne, who disappeared Mother’s Day weekend 2020. It was a statement which appeared to catch Morphew’s attorneys off guard, considering the case was dismissed without prejudice on the eve of trial in April 2022.

Morphew walked out of the courthouse a free man and has always maintained that he did not kill his wife.

Domenico’s statements led Morphew civil attorney Jane Fisher-Byrialsen to take issue, noting at the hearing’s close that new lead prosecutor Anne Kelly has told her in phone conversations that the Morphew investigation is a cold case.

“This means there is no suspect,” said Byrialsen addressing the judge. “I want to be very clear. You said Barry Morphew is under investigation. This is irrelevant and not true.”

When asked about Fisher-Byrialsen’s comments, Kelly told The Denver Gazette in an email statement that “the investigation into the remains of Suzanne Morphew is ongoing. The 12th Judicial District Attorney’s office is assisting with that investigation.”

As to the reference to the Morphew case as “cold,” she added that guidance from her office and the Colorado Department of Criminal Justice “designated this ongoing investigation as a ‘cold case.’ That phrase is specifically defined in the Colorado Victims’ Rights Act.” She added that the cold case designation is used “narrowly by the investigation team” to guide their decision-making around the release of information.

“The term ‘cold case’ in reference to case designations contained in the Victims’ Rights Act, indicates only that a criminal case is not currently pending,” wrote Kelly.

It is only the second time that Kelly has commented publicly on the renewed Morphew investigation since it was transferred from 11th Judicial District Attorney Linda Stanley.

Barry Morphew, as his deceased wife’s next-of-kin, is her voice, even though he was arrested on suspicion of her murder in the now-dismissed case.

Often, prosecutors must supply information to a victim’s next-of-kin, even if the next-of-kin once was a suspect, explained former Denver District Attorney Craig Silverman.

“Bottom line is, all you have to do is let them know about the critical stages of a case. It’s about keeping victims informed, and able to participate,” he said. “Remember, though, the prosecutor does not work for the victim. The prosecutor works for the people.”

Silverman compared this instance to another infamous Colorado case.

“It’s shades of JonBenet Ramsey,” he said. Though John Ramsey was once openly considered “under the umbrella of suspicion” in his daughter’s unsolved murder, he now meets irregularly with Boulder police and prosecutors to keep tabs on the case. Ramsey and his late wife, Patsy Ramsey, were exonerated by Boulder District Attorney Mary Lacey in July 2008.

What happened during the hearing

Morphew’s $15 million settlement blames certain investigators for “irreparably” tarnishing his “name and reputation” with a “conspiracy to violate his state and federal constitutional rights” with the failed murder investigation, according to the lawsuit.

The complaint also states that detectives omitted facts in the arrest affidavit which pointed away from his innocence in order to establish probable cause to arrest him. Specifically, Morphew’s attorneys noted that detectives knew of a DNA match found in Mrs. Morphew’s SUV as early as December 2020, five months before he was arrested, and did not include it in the arrest affidavit.

Judge Domenico argued that omission of the DNA result “doesn’t make it unconstitutional. Lots of things get left out.”

Lawyers for prosecutors Linda Stanley, Mark Hurlbert and Jeff Lindsey, Chaffee County Sheriff John Spezze, five Colorado Bureau of Investigation agents including former Director John Camper and Alex Walker, the DA investigator who authored the affidavit, argued that so many defendants can constitute confusion.

“Everyone is grouped together. It’s almost impossible to distinguish which one did what,” said William O’Connell, who represents former DA Investigator Alex Walker, who authored the 129-page arrest affidavit.

Walker resigned from the DA’s office in May 2021 and transferred to the Chaffee County Sheriff Office, where he still works on the Morphew case.

In his complaint, Morphew also accused Chaffee County Sheriff’s Deputy Scott Himschoot of planting evidence, specifically a dart cap which he found in the Morphew’s dryer during a search of the Morphew home.

The sheer number of law enforcement personnel Morphew named in his complaint may be the largest group of law enforcement representatives sued individually since Colorado’s police accountability law was instated in the summer of 2020 on the heels of the George Floyd case.

Under the measure, instead of taxpayers having to cover the entire legal bill, officers can now be forced to pay up to $25,000 of their own money.

Barry Morphew was not in the courtroom, nor were Chaffee County Sheriff John Spezze, 11th Judicial District Attorney Linda Stanley or any of the other members of law enforcement who are being sued.

Domenico did not rule immediately on law enforcement’s motion to dismiss Morphew’s lawsuit. He said that it will be several weeks before he decides.