By Jeffrey A. Roberts
CFOIC Executive Director
The 130-page arrest affidavit for Barry Morphew, who is accused of murdering his wife Suzanne Morphew in 2020, will remain sealed for now.
“The Media Consortium questions the legitimacy of denying public access to the entire Affidavit based upon the length and details contained within it and also questions the likelihood that this information can’t be redacted,” the judge wrote. “However, it wasn’t merely the details and length of the Affidavit that resulted in the Court’s decision to restrict public access.
“It was also the Court’s desire that efforts at redaction be done meaningfully and with reliable input from the parties, which cannot occur until the parties have had time to familiarize themselves with the investigation.”
Murphy in his June 4 order called the affidavit “the lengthiest and most detailed” he has seen in nearly 30 years of experience with criminal cases. He wrote that “a significant portion” of information in the affidavit may not be admissible at trial and that releasing the document prior to an investigation conducted by Barry Morphew’s defense attorneys could hamper their ability to effectively prepare a defense. The judge also raised concerns about the potential for harassment of the Morphews’ two daughters.
Media lawyer Steve Zansberg argued in a response that the affidavit’s length and details contained in the document “are not legitimate grounds to deny the public’s presumptive right to inspect it,” nor is Barry Morphew’s “investigation” of the case against him. Zansberg, who is president of the Colorado Freedom of Information Coalition, noted that Colorado Rule of Criminal Procedure 55.1 — which went into effect May 10 — “imposes a heightened burden on any party seeking to overcome the public’s strong presumptive right to access” to a court record.
Zansberg argued there are “multiple adequate and less restrictive means” to protect the safety and well being of the Morphew children, other than closing public access to the entire arrest affidavit. If the affidavit contains extremely sensitive personal or private information unrelated to the prosecution’s need for the arrest warrant, he wrote, “Rule 55.1 provides that such information may be redacted.”
But the alternatives suggested by Zansberg “only respond to abuse or harassment and do nothing to prevent it,” Murphy wrote in his latest order, issued July 16. “Therefore, in furtherance of protecting the Morphew daughters from abuse or harassment, the Court will allow time for meaningful efforts at redaction to be made.”
The judge also rejected the media consortium’s contention that the court is required under Rule 55.1 to find that “no less restrictive means” exist to protect Barry Morphew’s right to fair trial. Morphew’s fair trial rights “were not identified by the Court as a substantial interest in its Order,” Murphy wrote. “Therefore, there is no requirement that the Court consider less restrictive means or balance Mr. Morphew’s fair trial rights against the presumption of public access.”
The media consortium seeking the Morphew arrest affidavit includes The Associated Press, The Denver Post, The Gazette, KCNC-TV (CBS4), KDVR-TV (FOX31), KKTV-TV (11 News), KMGH-TV (Denver7), KOAA-TV (News5), KRDO-TV, KUSA-TV (9NEWS) and KXRM-TV (FOX21).
Barry Morphew faces charges of first-degree murder and destroying his wife’s body in an attempt to avoid arrest. Suzanne Morphew was reported missing on May 10, 2020, and her body has not been found.
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