DISTRICT COURT, FREMONT COUNTY, COLORADO Court Address: 136 Justice Center Rd., Rm. 103 Canon City, CO 81212 Court Phone: (719) 269-0100 THE PEOPLE OF THE STATE OF COLORADO, y. BARRY LEE MORPHEW, Defendant, Eytan, #29505 Eytan Nielsen LLC 3200 Cherry Creek South Drive, Suite 720 Denver, CO 80209 ‘Telephone: (720) 440-8155 Facsimile: (720) 440-8156 iris@eytan-nielsen.com Jane Fisher-Byrialsen, #49133 Fisher & Byrialsen, PLLC 4600 South Syracuse St., 9th Floor, Denver, Colorado 80237 Hollis Whitson, #32911 Samler and Whitson, PC 1600 Stout Street, Suite 1400 Denver, CO 80202 303-670-0575 Hollis@SamlerandWhitson.com ATTORNEYS FOR DEFENDANT BARRY LEE MORPHEW DATE FILED: April 5, 2022 11:42 PM| & COURT USE ONLY & Case Number: 22CR47 Division: 1 RESPONSE TO PROSECUTION MOTION TO RECONSIDER AND DEFENSE MOTION TO DISMISS CASE [D-62, D-62b, D-62c] The defense responds and requests this court to deny the prosecution’s Motion for Reconsideration of the Court’s March 10, 2022 order to strike various prosecution experts duc to their pattern of violations of Court Orders and Rule 16. ‘These stricken/excluded witnesses donothing to prove that Mr. Morphew is guilty of murder. There is no evidence of a murder. And certainly no evidence that Mr. Morphew committed a murder. It has been well established and confessed by the prosecution that there is no body, no confession, no eyewitness testimony, or physical evidence that Ms. Morphew is dead, was murdered, or that Mr. Morphew is responsible, ‘The facts in this case are insufficient to reach a murder conviction and the stricken experts do nothing more that bolster uncorroborated theories and hunches the prosecution would like the jury to adopt in what would be a specious and wrongful conviction. See People v. Fisher, 483 N.W.2d 452 (Mich. Ct. App. 1992); and Motion to Set Bond and Dismiss Murder Charges for Lack of Corpus Delecti, Proof Evident, and Probable Cause [D-21] Over and over again, in open court, the prosecution continues to claim that the defense has all discovery, including expert reports. In fact, they have claimed they have bent over backwards to provide it. The court knows this is not accurate. On March 10, 2022, this Court gave the prosecution a third opportunity to present the prosecution’s expert summaries or reports in compliance with the October 13, 2021 verbal order and October 29, 2021 written Case Management Order (CMO) to this court. See e.g., Tr. of 3/10/22, p. 138. Now, six (6) weeks after the prosecution's expert disclosures were ordered due, and three weeks after the court struck these witnesses, the prosecution purports to provide the information to this Court, including providing new information and reports, that it claims are critical to prove its theory of murder. However, even six weeks later, Mr. Morphew still does not have proper notice of the expert’s (not prosecution's) opinions, nor all the information required by Rule 16, the CMO, and Brady v. Maryland, 373 U.S. 83 (1963), People v. District Court, 793 P.2d 163 (Colo. 1990); People v, Bueno, 409 P.3d 320 (2018). Not only does Mr. Morphew not have proper notice of their expert opinions, he does not have all the Brady discovery to which he is entitled. Ttis clear by the prosecution’s continuing conduct of blatant disregard for Court Orders and Rule 16 that giving the prosecution even more time to comply with the CMO will not cause them to comply or cure the prejudice. At this point, it is apparent that the Prosecution’s actions are intentional, including filing motions we ethically must respond to, causing the obvious consequence of taking the defense away from preparing for trial and filing motions in limine by today's deadline. Mr Morphew once again moves for the Court to dismiss this case In its Motion for Reconsideration the prosecution sets forth a chart that it claims shows they have properly notified the defense of its experts’ opinions long ago in compliance with theCourt’s Orders. Nothing could be further from the truth. The defense requests this Court to incorporate its arguments made in the April 3, 2022, Notice of Intent to File Response to prosecution’s Motion for Reconsideration [D-62]. See Exhibit 1, Notice of Intent to File Response to prosecution's Motion for Reconsideration. The defense will respond to each of the prosecution’s requests to reconsider in the order their experts are identified in the chart on page (4) four of their Motion. I. KENNETH HICKS A. DA Chart Misrepresentations Expert] Aitached Exhibit | Endorsement | Repon(s)Dsclsed ] CV Dschsed Ken Hicks, Exhibit 1, | 214722 (P-42] 7Ra3raA WARD (Bates $-6573 through | (Bates 84029 Expert in RMR200515088 | 2/28/22 [P-44] | S-6829), discovery through $4033) Telematies report aitached as attached as Exhibit 1a, Hicks Exhibit 4, Page 82-83. | Exhibit 1b corresponding to Report Extracted discovery receipt attached as Exhibit 5, Page 23-24, On March 10, 2022, this Court gave the prosecution ample opportunity to identify Hicks’s report and the basis for his opinion(s). The prosecution refused to do so, and then waited weeks before filing a Motion to Reconsider and with it filed a chart (p. 5) filled with multiple inaccuracies and misrepresentations in an attempt to convince this Court to reconsider its ruling. Now, the prosecution states that on July 23, 2021, the prosecution produced a report written by Mr. Hicks and approximately 300 pages of discovery/data in support of the basis of the opinions noted in the report (fourth column, citing Bates S-6573 through S-6829). The DA attached a discovery receipt with those pages. (Exhibit 4 to DA’s Motion to Reconsider D-62 Order). Following are some of the DA’s inaccuracies: © The referenced 257 pages (S-6573 through S-6829) representing the discovery the prosecution produced in July 2021, and claims should put the defense on notice as to Mr. Hicks’ opinions in fact refer to a Jim Stevens report, not a Ken Hicks report.' * On the DA’s chart, the DA identifies: (Bates S-6573 through $-6829), discovery report attached as Exhibit 4, Page 82-83.‘© Additionally, those superseded Bates numbers do not concem the data Mr. Hick’s used to conduct his purported expert analysis of Bay Morphew’s vehicle telematics, but instead concern Mr. Stevens' analysis of phones and iPads regarding other individuals’ investigation in this case © Intheir Motion for Reconsideration, the prosecution attempted to prove to this court that Hick’s report was produced as evidenced on pages 82-83 of Exhibit 4, and highlighted the discovery index to show the defense received it.? However, that discovery does not concern Mr. Hicks, but instead (non-telematics) work that Jim Stevens conducted on the case. S602 $602 Evidence Release pa Evidence Release pa $6303 $6389 57 RMR200519090.pdt RMR200519000.pd $-6360 6567 208——_RMR200523094 (2) pat RMR200523094 (2) pat S658 $6568 RMR200523004 pl 'RMR200523004 pf $6569 1 Discovery Request pf Discovery Request pdf S670 2 Evidence Retum Receipt pf Evidence Retum Receipt pdf s.6572 1 Evidence Sheet pdf Evidence Sheet pdf S-6573$-6829 257 RMR200523095.pdt —RMR200523095 pdf © InMr. Morphew’s renewed motion for discovery sanctions (D-17), filed on August 2, 2021, Mr. Morphew provided photographs of the voluminous, disorganized, and chaotic nature of what had been disclosed. See Exhibit I to D-17. So, while it is true that now, directed to a Hicks report, Exhibit 1 in their chart was produced to the defense on July 23, 2021, it was produced amongst 1,771 other pages of discovery on that date, and contained within the approximately 4,000 gigabytes of data that has been produced thus far. © Again, this Hicks report identified on April 1, 2022 was buried in the midst of approximately 4,000 gigabytes of discovery produced in this case, meaning the defense has been left to hunt and peck for the relevant portions, limitations, extent 2 Mr. Hurlbert objected to the introduction of the Discovery Index/Disclosures when asking witness and ex-DA Jeff Lindsey regarding the late production of the CODIS investigation. See January 24, 2022 Transcript, p.230 1.8. As ‘a result of the prosecution's denial of the validity of their discovery index which they now are relying on, the defense" paralegal, Tonya Holliday, submitted a signed and notarized affidavit stating the accuracy of such indexes. See, Ex 532, introduced during the D-17 hearing.and data relied upon in the opinions the prosecution endeavored Mr. Hicks to make in trial, © Furthermore, the discovery report attached as Exhibit 4, Page 82-83, does nothing to enlighten the defense or assist in knowing what Hicks had done in preparation fora Shreck challenge. The above highlighted lines from DA’s exhibit 4 is certainly insufficient under the notice required by the Rule, Brady v. Maryland, and the Mo. © Last, the prosecution is now using superseded Bates numbers ($-6573 through S- 6829) as a point of reference which the prosecution told the defense in no uncertain terms to never use again as a basis for finding and referring to discovery after they were superseded. See Exhibit A. B. _ DA Motion to Reconsider Contains Mr. Hicks’ Proposed Opinions Which Are Factually Dishonest - A Doug Spence Special. The prosecution's motion claims that Mr. Hicks’ opinions are critical because 1) Mr. Hicks can prove what time Bary Morphew went to bed on May 9, 2020; 2) that Mr. Hicks will testify that there is data that “shows that Barry Morphew was loading his truck over several hours late into the evening”; and 3) Mr. Hicks’s testimony is “critical” because it will “show” that Barry ‘Morphew made “five” trash dumps in the Broomfield area the next day. Mr. Hicks does not make any of those opinions in the report the prosecution refers to in their Motion to Reconsider. In fact, the defense is unaware vehicle telematics data has the ability to identify who is doing what in or around a vehicle, and certainly is surprised an expert can identify when someone is going to bed or whether they are throwing trash away by reviewing telematics data. ‘The claims here replicate the prosecution's pattem of making false claims in its pleadings and in court. See D-64 Motion to Dismiss Based on Presentation of False Testimony at Pretrial Hearings, filed on March 9, 2022 (the Court has not issued a ruling on this motion as of this date). As far as the defense can discem from the information provided, the prosecution’s proposed opinions of Mr. Hicks' opinions will contradict what is in Mr. Hicks’ report, another “Doug Spence special. Mr. Morphew has still not been given (and if so, not identified) the * Term: Doug Spence Special. Definition: When the prosecution asserts in court, in a motion or in an affidavit that @ witness will present one of the prosecution's desired theories which is discovered to be contradicted by the witness or ‘evidence in the case. For example: On March 30, 2022, minutes prior to Mr. Spence’s prospective Shreck testimonyunderlying facts or data that support the prosecution's claim of Mr. Hicks proposed opinions and certainly has not been given “sufficient meaningful information to conduct effective cross- examination under CRE 705.” Transcript of 10/13/21, p. 45:4-17 (quoting Crim. P. Rule 16, Part 1(@))). The defense would be profoundly prejudiced if the prosecution is permitted more time at this late date to provide a proper expert disclosure for Mr. Hicks, The time for hiring, consulting with, and endorsing a defense expert has passed, Mr. Morphew has continuously asserted his right to a speedy trial and continues to do so today. Il. JAMES STEVENS A. DA Chart Misrepresentations ‘James Stevens, Exhibit 2, Diaz [Paz] 723/21 ‘Sz (Bates $-6303 through | (Bates $4023 Forensic RMR200523095 | 2/28/22 [P-44] | $-6359), discovery through 84025 Computer/Data report attached as attached as, Analysis Exhibit 2a, Exhibit 4, Page 82-83 Exhibit 2b Expert corresponding. to Stevens Report discovery receipt attached as Extracted Exhibit 5, Page 23-24. The prosecution states that the defense received discovery regarding Mr. Stevens' opinion on July 23, 2021, specifically, the prosecution states that they provided a report and approximately 56 pages of discovery on that date (fourth column, citing Bates $-6303 through S-6359). In support regarding dog scent tracking, Mr. Grosgebauer the Special Prosecutor asserted that he spoke to Mr. Spence on the phone the night before without a witness being present (and without taking notes) about Mr. Spence’s testimony. In ‘addressing the court, Mr. Grosgebauer stated that Mr. Spence would testify that the part of the prosecution's proposed statement of his opinion submitted on March 1, 2022 that Mr, Spence’s dog alerted to Ms, Morphew’s scent was false, ‘Mr. Grosgebauer indicated that Mr. Spence's opinion would be that his canine did notin fact pick up Ms. Morphew's scent. Mr. Grosgebauer went on fo state that Mr, Spence’s change in opinion was not exculpatory and thus not a discovery violation. Mr. Grosgebauer stated it was inculpatory, in that it proved the “prosccution’s theory” that Suzanne Morphew was not riding her bike or at the location where the bike was located. However, as was soon discovered based on the defense” claims that Mr. Spence wrote a report that was not produced, the prosecution quickly asserted they would be withdrawing Mr. Spence’ as an expert. As.a result of the prosecution’s failure to obtain Mr Spence’s report, the court found a pattern discovery violation and permitted Mr. Spence to testify regarding the pattern discovery violation to determine the proper sanction for the violation, During Mr. Spence's testimony, the prosecution sought to lock Mr. Spence into this new “theory” that his eanine did not pick up Ms, Morphew's scent, However, the prosecution and Mr, Spence were unaware of the Body Worn Camera footage capturing Mr. Spence’s verbatim and nearly contemporaneous account of his dog alerting to Ms. Morphew's scent where Suzanne Morphew’s bike was located, Thus, it became evident that the prosecution attempted to manufacture opinions and evidence in this ease in ‘order to fit one of their uncorroborated theories, 6of this contention, the DA attached a discovery receipt with those pages (the same receipt they attached for Ken Hicks on the DA’s chart.). (Exhibit 4 to DA’s Motion to Reconsider D-62 Order). © While it is true that now, directed to a Hicks report, Exhibit 2a in their chart was produced to the defense on July 23, 2021, it was buried amongst 1,771 other pages of discovery on that date, and contained within the approximately 4,000 gigabytes of data that has been produced thus far. In the DA chart, the prosecution indicates that S-6303 through S-6359 is the data Mr. Stevens analyzed and will be opining about regarding Barry Morphew’s phone. That is incorrect. Those 56 pages do not concem Barry Morphew’s phone. The pages refer to entirely different telephones investigated in the case. © Further, the RMR report Bates stamped S-6303 (referenced in column 4 of the Dé chart) is named RMR200519090, not RMR20053095, as referenced in column 2 of the DA’s chart s ‘© Mr. Stevens has written at least one other report in discovery, and that is the report which was initially located by the defense and is identified as RMR210305040. The defense referred to this 5040-page report in D-62(b), and the prosecution never refuted the defense belief that this report could be the report summarizing Mr. Stevens" opinions. In this report Mr. Stevens states: "I did not analyze the content of the extraction for specific data contained within the scope of the legal authority or other files that may be of interest to the case agent, Itis the sole responsibility of the submitting case agent to review the provided results for relevaney and adherence to the scope of the legal authority.” (PDF pg. 6/55); "I did not analyze the content of the extraction for specific data contained within the scope of the legal authority or other files that may be of interest to Agent Graham. It is the sole responsibility of the submitting Case Agent to review the provided results for relevancy and adherence to the scope of the legal authority." (PDF pg. 16/55). ¢ Since the prosecution endorsed Mr. Stevens without any accompanying report or Bat numbers, how was the defense to know which report(s) the prosecution is relying upon, including this one that states that he did not analyze the content of the extraction.‘© Even in the Motion to Reconsider, the prosecution has still not provided the underlying facts and data that Stevens allegedly reviewed and analyzed with regard to Barry Morphew’s phone. © Creating confusion, the prosecution is using superseded Bates numbers (S-6303 through $-6359) that the prosecution told the defense to never use again after they were superseded. See Exhibit A. B. DA Motion to Reconsider Contains Mr. Steven’s Proposed Opinions Which Are Factually Dishonest - A Doug Spence Special The prosecution includes additional untrue statements in its motion to reconsider with regard to Mr. Stevens’ proposed opinions in an effort to persuade this court to believe that Mr. Stevens is essential in proving that a murder occurred, and Mr. Morphew was responsible for the murder, i.e. the Doug Spence Specials. The prosecution represents that Mr. Stevens will testify that data was deleted in bulk (381 text messages) before Barry Morphew’s phone was seized. The report that the prosecution points the court to has no such statement, reference or opinion, and provides no alleged time or date when this data was supposedly deleted. Mr. Stevens could not testify cons int with the prosecution’s theory as stated in the motion to reconsider as it would be false and not supported by Mr. Stevens’ report. The prosecution also represents that Mr. Stevens will testify that one of the messages he recovered from the deleted messages from Barry's phone includes one that goes “directly to the motive in this case.” The prosecution refers to a deleted text sent on 5/6/2020 from Suzanne Morphew to Barry Morphew. However, this claim is patently false. That alleged 5/6/2020 text is not identified in Mr. Stevens’s report at all (attached as 2A to the DA’s Motion to Reconsider), nor is it in the discovery pages the prosecution points to in its Motion to Reconsider chart. Additionally, the prosecution wants this Court to reconsider its exclusion of Mr. Stevens based on their allegation that Mr. Morphew has “always claimed that his relationship with his wife was without problems” and the DA needs Mr. Stevens to refute that defense claim. This is once again the prosecution's use of an untrue statement in an effort to persuade this Court to reconsider its ruling, Mr. Morphew never claimed in any of his 34 interviews with law enforcement that his marriage was “without problems,” or was “perfect.” In fact, Mr. Morphew cited the spats,arguments, and verbal fights he had ith Ms. Morphew were what would be considered ordinary in most marriages." The defense would be profoundly prejudiced if the prosecution were permitted more time at this late date to provide a proper expert disclosure for Mr. Stevens. The time for hiring, consulting with, and endorsing a defense expert has passed, Mr. Morphew has continuously asserted his right to a speedy trial and continues to do so today. III, KEVIN HOYLAND A. DA Chart Misrepresentations Kevin Exhibit 3, | 21422 [P-42] T3722 3RZ Hoyland, (Bates 29374 through | (Bates 84034 O7A-FBL_CAST | 228/22 [P-44] | 29411), discovery | through 84035) Expert in Cell report attached as attached as Phone Exhibit 5, Page 13. Exhibit 3a ‘Tracking and corresponding to Historical Call Also discovered | discovery receipt Data Analysis previously on a hard attached as drive on 6/2/21 Exhibit 5, Page displiyed in Exhibit 6. 23-24, The prosecution states that the defense received discovery regarding Mr. Hoyland on a hard drive on June 2, 2021 and, on January 3, 2022, disclosed a report and approximately 35 pages of discovery (fourth column, citing Bates 29374 through 29411). (Notably, the prosecution is now using a different Bates number system than was utilized on the DA’s chart for Hicks and Stevens, above). The prosecution has not stopped repeating its recitation of false “facts” to attempt to convince this Court and the public to believe it has evidence of murder, including from expert opinions, and that the Court is barring it from introducing such evidence, i, See D-64 and hearing notes on March 30, 2022. On March 30, 2022 at the Shreck Hearing, Mr, Hurlbert provided a verbal offer of proof in seeking the introduction of Dr, Wolfe, a veterinarian, to testify about the effects of an animal sedative called BAM on humans. In trying to convince this court to allow Dr. Wolfe to testify, DA Hurlbert stated that a needle sheath was recovered from the Morphew's dryer, and twice falsely slated that the needle sheath was found in the shorts in the dryer that Mr. Morphew was seen wearing on 5/9/2020. Then Mr. Hurlbert claimed the needle sheath was relevant because Suzanne Morphew's DNA was found on the needle sheath and BAM was found in the garage, The defense produced the photos taken by erime scene investigators showing many clothes and sheets were in the dryer, including a pair of Mr. Morphew’s shorts. More than a week later, a needle sheath was found in the dryer by itself at the bottom of the dryer drum. Mz, Morphew"s DNA was not found on the needle sheath, there is no evidence the shorts in the dryer were worn by Mr. Morphew on any date certain, and BAM was not found atthe house or detected anywhere in or around the house. Further, contrary to Mr. Hurlbur's statements, the DNA report provided by the prosecution states that it cannot be stated (uninformative) whether Suzanne Morphew's DNA was on the needle sheath. Discovery page S-28127,On March 10, 2022, in arguing the Defense Motion to Strike the DA’s Experts, DA Hurlbert flat-out lied to this Court when he stated that the defense had Hoyland’s report. Tr. 3/10/2022, p. 135:13-19, This Court asked Mr. Hurlbert point-blank: Andrew McDermott, and Hoyland, Tell me, have those reports been disclosed or not?” Mr, Hurlbert responded: MR. HURLBERT: All of those reports have been disclosed except for Mr. McDermott who is currently working on his report. 3/10/2022, p. 135:17-19. On March 29, 2022, nineteen days later (the day before filing its Motion to Reconsider), the District Attomey sent the defense a Hoyland report. It is the first non- draft Hoyland report the defense has received to date. In addition: As the defense identified in the defens defense only had a Hoyland report stamped “DRAFT FOR LEAD PURPOSES ¢ Motion to Strike Hoyland D-62(b), the on LY”. And, on the FBI electronic communication page related to the draft CAST report (Bates 29375) Agent Hoyland writes, “It is expected that additional information will be received at which point a draft addendum to the report will be made and memorialized. A final report will be prepared after all available data has been received and in preparation for any future trial.” (emphasis added), No other report was produced until March 29, 2022 — two weeks after Mr. Hoyland’s expert opinions/testimony was stricken. Unlike the draft report, with multiple caveats strewn throughout the draft report, the report received on March 29, 2022 (“the new 3/29/22 report”) does not indicate that it is a “draft.” The new 3/29/22 report has new and different data from the “draft” report produced in 2021 and data that has not been produced to the defense Importantly, the new 3/29/22 report contains highly exculpatory information about the times during which Suzanne Morphew’s phone was being utilized on May 9- 10, 2020. The new 3/29/22 report reflects that Ms. Morphew’s phone made outgoing calls at approximately 3:30 p.m. and 7:30 p.m. on May 9, 2020 and received an incoming call at 4:23 a.m. on May 10, 2020 — when the prosecution claims Ms. Morphew was supposedly already deceased. There is no identification in the 3/29/22 report of the incoming or outgoing phone numbers from Ms.Morphew’s phone or the length of the calls. The prosecution has not produced the exculpatory and Brady discovery identified in the new 3/29/22 report. The key is that, for both reports, the data Mr. Hoyland used to support the draft and updated opinions did not accompany the reports. Critically, the defense has not been provided the original, unaltered data underlying the report(s) in the form that law enforcement received it. See Motion D-75, “Motion for Sanctions for Failure to Disclose Cellular Data Retrieval Information and DNA Reports” [D-75] (filed 3/31/2022), The recent history regarding the difficulty the defense has had in its attempts to obtain the raw cell data from the prosecution is vexing and evidence of additional discovery violations. On March 31, 2022, at 10:38 a.m. DA Hurlbert sent defense counsel an email stating that he had conferred with Commander Alex Walker and the cell data the prosecution received from Verizon is exactly what was produced to the defense on a hard drive on February 1, 2022. Mr. Hurlbert pointed out the data was provided in folders E69 (Bary Morphew’s cell data) and E75 (Suzanne Morphew’s cell data). See Exhibit B. To begin with, this data was returned pursuant to a search warrant requesting data through May 16, 2020, However, additional data was retuned by Verizon through an amended search warrant authored by Commander Walker for call detail records through June 3, 2020. Emails produced in discovery show that Commander Walker received this additional data on June 10, 2020 pursuant to this Amended Search Warrant. Therefore, folders E69 and E75 containing data through May 13, 2020 cannot possibly be all of the data law enforcement has received from Verizon. In addition, the data that has been produced has been altered from its original state. Some of the spreadsheets in these folders appear sorted by dates in a manner inconsistent with how Verizon produces records. And, as stated above, the new 3/29/22 report includes newly revealed exculpatory and Brady information, but all the data supporting the old and new 3/29/22 report has still not been produced,B. DA Motion to Reconsider Contai s Mr. Hoyland’s Proposed Opinions Which Are Factually Dishonest - A Doug Spence Special The prosecution’s Motion to Reconsider materially misstates what is contained in Hoyland’s new 3/29/22 report. In order to attempt to convince the court that Mr. Hoyland is critical to prove Mr. Morphew murdered Ms. Morphew, the prosecution states: “The report also uses the previously extracted phone data from the Defendant's phone to show a pattern of ‘airplane mode’ around the most influential times in the case. This timeline is critical to the People’s case as it disproves many of the Defendant’s assertions about what transpired surrounding his wife’s disappearance.” DA’s Motion to Reconsider, p. 4. Unlike the draft report, the new 3/29/22 report does not report on “airplane mode” around “influential times in the case.” This appears to be once again a “Doug Spence Special”, wherein the prosecution has or will attempt to convince its experts to change their opinions to fit the prosecution's speculative, uncorroborated theories of this case. The most probable reason that Hoyland’s new 3/29/22 report says nothing about “airplane mode” around “the most influential times in the case” is Mr. Hoyland cannot make that opinion, because it would be asking him to make a false statement. The defense has learned, as a result of pouring over more than twenty thousand pages of witness emails produced in late January 2022° that on June 24, 2020, Mr. Hoyland explained in an email to various law enforcement officers the “apparent” “airplane mode” phenomenon thought to have occurred on Barry Morphew’s phone ‘was confusing. See Exhibit C. Now, in the new 3/29/22 report, Mr. Hoyland, analyst for the FBI's acclaimed Cellular Analysis Survey Team (CAST), fails to make any conclusions regarding the unreliable, confusing “airplane mode” theory. The prosecution is once again manufacturing opinions of what they would like Mr. Hoyland to say to attempt to persuade this court that striking Mr. Hoyland’s testimony will prevent them from proving their case, However, the fact is that based on Mr. Hoyland’s own words the “airplane mode” theory is defunct. Mr. Hoyland is likely using the very raw data the defense has not been provided to draft his reports; equally likely, he has been communicating with the prosecution team about the © This Court undoubtedly recalls the spectacle when the prosecution turned over approximately 23,000 pages of emails in January, 2022. Judge Murphy had ordered those emails to be produced back on June 3, 2021preparation of this new 3/29/22 report. It’s hard to believe the new 3/29/22 report was created by Mr. Hoyland without a request from the prosecution, and it's hard to believe, after reading the email communications between Mr. Hoyland and the prosecution team dated in June 2020, that the prosecution did not request a new report or was not made aware of the contents of the new report. The defense has received none of those communications. Even if the communications were oral, these communications should have been disclosed because they are material and exculpatory (Brady) — based upon the new information in the new 3/29/22 report. The prosecution alleges that Mr. Morphew will not be prejudiced by the late endorsement because the defense had Hoyland’s draft report. However, as described above, the new 3/29/22 report is vastly different from the draft, including 1) new phone calls reflected as being made from Suzanne Morphew’s phone after she was supposedly deceased; and 2) the new 3/29/22 report eliminates the entire “airplane mode” theory. Again, the defense still does not have all the raw data, nor the data which supports Mr. Hoyland’s draft or new 3/29/22 report. For the reasons stated above, the defense would be profoundly prejudiced if the prosecution ‘were permitted to call Hoyland as an expert at this late date. The time for hiring, consulting with, and endorsing a defense expert has passed. Mr. Morphew has always asserted his right to a speedy trial and continues to do so today. Additionally, the prosecution should receive further sanctions as it misrepresented its knowledge about a second report, has not produced its email and/or verbal ‘communications it has recently had with Mr. Hoyland, nor has the prosecution produced the original, unaltered, raw call detail records that are the basis for Mr. Hoyland’s draft and new 3/29/22 reports, MEGAN DUGE In the Motion for Reconsideration, the prosecution attached Exhibit 7, a letter Ms. Duge drafted on 5/19/2021, as the document the prosecution claims is sufficient to satisfy the prosecution’s expert disclosure requirements. This letter was not produced in the prosecution’s two expert disclosures on February 14, 2022 or February 28, 2022. But, on March 10, 2022 the defense advised the court that it did not have a report, opinions or basis for opinion, but had a one- page letter sent by Ms, Duge regarding the CODIS matches. No new information was provided in the prosecution’s Motion to Reconsider. The Court ruled this letter was not sufficient to meet the requirements of the CMO.In late January 2022, in response to the Court's second order for the prosecution to produce emails between witnesses in the case, the defense received a deluge of emails written by and between Ms. Duge and other witnesses and the prosecution team. ‘These emails reflect that the DA’s convened numerous meetings with Ms. Duge and other law enforcement to discuss her CODIS opinions. To date, the prosecution has not produced Ms. Duge’s opinions expressed in those meetings. Also, revealed in those late produced emails is the prosecution has not produced Ms. Duge’s Fall 2021 report regarding the significance and justification of the CODIS matches. That Fall 2021 report includes 106 emails written between Agent Duge and various CODIS administrators around the country. See Exhibit D, emails describing CODIS matches. Additionally, the defense has still not been provided the Quality Assurance Review regarding the CODIS matches in this case. Id. These would be exceptionally important components to what the prosecution purports Ms. Duge’s opinions as expressed in her 5/19/2021 letter. Additionally, the defense has requested but still does not have the critical DNA data (known as STRmix) that Ms. Duge used in 2020 and 2021 to compare the various leads to the unknown male DNA found on Suzanne Morphew’s glovebox. See Motion D-75, “Motion for Sanctions for Failure to Disclose Cellular Data Retrieval Information and DNA Reports” [D-75] (iled 3/31/2022). Ms. Duge had to have used this STRmix data in order to make the purported opinions expressed in her 5/29/2021 letter. Additionally, DA Hurlbert argued on March 10, 2022, that in lieu of a report the defense should be utilizing Ms. Duge’s emails to Agent Graham as her “opinions.” Mr. Hurlbert did not identify the emails to the defense or to the court. The prosecution apparently believes the defense is clairvoyant and can ascertain which of the thousands of emails it has produced constitute expert opinion and/or the underlying facts and data in lieu of a report. The prosecution has still not complied with Rule 16, the CMO, Brady v. Maryland, 373 U.S. 83 (1963), People v. District Court, 793 P.2d 163 (Colo. 1990); People v. Bueno, 409 P.3d 320 (2018). This Court already concluded that this one-page letter was not what was contemplated by the CMO or Rule 16. For the reasons stated above, the defense would be profoundly prejudiced if the prosecution were permitted to call Ms, Duge as an expert at this late date. Mr. Morphew has always asserted his right to a speedy trial and continues to do so today. In addition to denying the Prosecution’s Motion to Reconsider striking Ms. Duge’s expert cution has failed to testimony, the defense requests the Court issue further sanctions as the pros.produce the underlying data and basis for her purported opinions made in the May 11, 2021 letter it has had in its possession since October 2020-October 2021. V. THE DEFENSE DID NOT CONFESS THAT THE PROSECUTION EXPERTS ARE LAY WITNESSES The prosecution's claims that in D-62(b) the defense claimed their experts are lay witnesses. This is an irresponsible, frivolous, and unprofessional contention. It is akin to all the ‘occasions the prosecution has made false claims in its pleadings or in court about alleged facts of the case, prior court rulings, and Rule 16 requirements. ‘The defense was merely pointing out to the court its concern that the prosecution appears to think that it can bring in expert testimony of these witnesses when they endorsed them as lay witnesses in their March 4, 2022 Good Faith Witness List. Thus, the term “stealth experts” It just doesn’t matter what the Court Rulings, facts, or the written word, the prosecution continues to prove it will continue to disregard, misstate, mischaracterize, and create their own rules if they are not sanctioned for their misconduct. VI. THE PROSECUTION’S VIOLATIONS CAN ONLY BE REGARDED AS WILLFUL The Senior Deputy District Attorneys that are or have been on this case have each almost three decades of experience, have handled many, many, high profile, high stakes cases. Not only has the prosecution had highly experienced lead counsel throughout this case, they have at all times had at least three additional attorneys on the case®, the entire staff of the I Ith District's Attorney’s offi and assistance from the 4th Judicial District. To think that this prosecution team cannot comply with Court orders and behaves in this way is just negligent, is ludicrous, and it is certainly willful The prosecution’s Motion for Reconsideration only highlights its continuing contempt for Court Orders — and it is not getting better with time - no matter the deterrent - and that is because the conduct is willful. The prosecution’s spliced recitations of Judge Murphy's and this Court’s orders regarding their discovery violations and pattem discovery violations speak for themselves. They claim they understand the Court's Orders and Rule 16, but they keep violating both, which means they are intentionally violating the Court’s Orders and Rule 16, See Exhibit | 5 Linda Stanley, Jeff Lindsey, Mark Hurlbert, Dan Edwards, Bob Wei Grosgebaucr. , Aaron Pembleton, and GrantA continuance will not cure this prejudice. It will only give them more time to manufacture evidence based on their defunct theories. The prosecution has still not produced the mandated discovery that was utilized by the experts to opine on various matters. The prosecution is in essence begging for a continuance—this request has reverberated from the prosecution since the case was set for trial on September 17, 2021. This is because, as CBI officials testified, the arrest of Mr. Morphew was “premature” “was the worst decision that could be made” and there was more investigation to conduct before arresting Mr. Morphew. The prosecution attempts to convince this Court that it was not justified in striking experts that are “tantamount” to a dismissal, and while doing so manufactures facts not reflected in expert reports or data (known to the defense) to make it appear the Court has abused its discretion. The prosecution does not have evidence to prove a murder occurred or that Mr. Morphew murdered Ms. Morphew. Much of the evidence the prosecution identifies in the Affidavit to Arrest Barry Morphew and which was presented at the Preliminary Hearing is inadmissible, prejudicial, manufactured, and/or baseless, and/or has since be proven/shown to be unreliable by their own experts. Itis clear they want to use these experts to continue to weave more Doug Spence Specials to wrongly convict Mr. Morphew, in the same way the Affidavit to Arrest Barry Morphew caused his arrest without bond, and the same way the false testimony caused the court to find probable cause and bind this case over. ‘The defense requests this court to robustly deny the Motion to Reconsider and once again requests the case be dismissed, due to the continued outrageous governmental misconduct, violations of Court Orders, the United States and Colorado Constitutions, and Rule 16. This motion to reconsider did not arise in a vacuum. The record in this ¢: 1 goes beyond D-62. It goes beyond D-17, D-28, D-57, and all the other discovery violations. Tt includes the misconduct that this Court ruled in with respect to D-22, regarding Linda Stanley's clear violation of ethical rules and orders of this Court. For these reasons, the defense implores this court to consider carefully all the prior arguments and motions regarding the prosecution's misconduct. The Motion to Reconsider is simply more evidence of the prosecution’s documented/established/ pattern of abuse of power, and Mr. Morphew once again moves to dismiss this case. 16Respectfully submitted this Sth day of April 2022. EYTAN NIELSEN LLC FISHER & BYRIALSEN, PLLC she Jane Fisher-Byrialsen, #49133 vrialsen SAMLER AND WHITSON s/ Hollis Whitson Hollis Whitson, #32911 CERTIFICATE OF SERVICE Thereby certify that on this Sth day of April 2022, a true and correct copy of the foregoing RESPON E TO D-62 [DA’S MOTION TO RECONSIDER] AND MOTION TO DISMISS CASE was served via CCE as follows: 11'" Judicial District Attorney's Office, 101 Crestone Ave., Salida, CO 81201 s/ Tonya Holliday Tonya Holliday