SALIDA, Colo. — Barry Morphew's defense team is seeking the removal of the judge overseeing his murder case, according to a motion filed Monday.
He is charged in the death of his wife Suzanne Morphew, whose body has never been found after she was last seen on May 10, 2020.
The defense seeks the disqualification of Judge Patrick W. Murphy from any further participation in the case after a recent conversation between Morphew's defense and Martin Stuart, the defense attorney for a woman mentioned in Morphew's arrest affidavit.
Shoshana Darke, 51, was taken into custody in September after trespassing at the Morphew's former residence and removing a package, according to Chaffee County Sheriff's Office.
Darke faces one count of second-degree criminal trespass, and was released on a personal recognizance bond after being booked at the Chaffee County Detention Center, the sheriff's office said.
The motion says Stuart advised Morphew's defense attorney that Darke's case was reassigned from Murphy to a county court judge in October after the court found it had bias or prejudice against McDermott, Stuart, & Ward, LLP, the law firm representing Darke.
"This Court has a very close, longstanding personal relationship with Sean McDermott that rises to 'interest' or 'prejudice' with respect to this case and decisions that may arise with respect to Shoshona Darke," the motion argues. "This relationship extends to other members of the families of both Sean McDermott and this Court."
The motion argues that Murphy should be disqualified due to the prior ruling in Darke's case, and his disclosure of the conflict because a reasonable observer could doubt his impartiality.
"This Court cannot rule out the very real possibility of having to rule on multiple matters related to Ms. Darke and in those matters, she will be represented by Sean McDermott’s law firm," the motion reads.
The defense argues the motion is not debatable, and the court should have no discretion to deny it.
"Colorado law and Supreme Court Rules dictate that this Court has no discretion to deny this Motion," the motion states. “'If the verified motion and supporting affidavits state facts showing grounds for disqualification, the judge must enter an order disqualifying himself.'”
In a court order responding to the motion, Murphy said that the court disagrees with the position that the filing of the motion alone requires disqualification.
"The Court agrees with the [prosecution's] Response which states 'the Motion appears to present a novel question in Colorado of whether the Court's friendship with attorneys who represent a witness who may be called as a witness in a different case creates cause for the Court to disqualify,'" the order said.
By rule, all other proceedings in the case are suspended until a ruling is made on the motion.
Before ruling on the motion, the court will need to confirm with the prosecution that Darke is a potential witness in the case.
"In an effort to be as transparent as possible, the Court will also put on the record the Court's relationship with attorney Sean McDermott as it is that relationship that forms the basis of the Motion," the court order said.
In September, Murphy found probable cause that Morphew might have murdered his wife, that he may have had motivation to do so and also found probable cause on other four charges:
- First-degree murder
- Tampering with a deceased human body
- Tampering with physical evidence
- Possession of a dangerous weapon
- Attempt to influence a public servant
Morphew pleaded not guilty and waived his right to a speedy trial.
The trial was set for May 3 through June 1, 2022.
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