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CHAFFEE COUNTY, Colo. (KDVR) — The district attorney for the 11th Judicial District dismissed the murder charge against Barry Morphew without prejudice.

A judge accepted the motion to dismiss after documents were filed on Tuesday morning.

“Throughout the pendency of this case, the People and law enforcement have been unrelenting in our search for Ms. Morphew. For some time, a single location has been the target of ongoing investigation. For the reasons expressed below, the People have a good faith reason to believe further investigation into this matter is essential to answering the most consequential question presented by this case. As this search cannot be accomplished in the coming weeks due to weather and snowpack conditions, the People respectfully ask this Court to dismiss the current indictment against the Defendant without prejudice.”

Without prejudice means the case could still be refiled at a later date.

Morphew was arrested in May of 2021 and formally charged with first-degree murder, tampering with evidence and attempting to influence the public following the disappearance of Suzanne, his wife, on Mother’s Day 2020.

The trial was scheduled to begin on April 28.

Motion to dismissDownload

Basis of dismissal

According to the filing, law enforcement believes it is close to locating the body of Suzanne Morphew.

“In typical homicide cases, the fact of the victim’s death is rarely at issue, but in a case such as this, the most influential fact of consequence is whether or not Ms. Morphew (Suzanne) is deceased. If the body proves to be there, further forensic examination could potentially inculpate or exculpate Barry Morphew,” court documents stated.

Police believe that Suzanne Morphew’s body is in a remote and mountainous region near the Morphew residence. However, weather has complicated recovery efforts, according to court documents. The area received a significant amount of snow before the search could be completed.

“To date, the area has 5 feet of snow concealing the location where the People believe Ms. Morphew is located. As a result, the People cannot safely excavate this area and resolve this unanswered question,” court documents showed.

The state said it spoke with the family of Suzanne Morphew and they agreed with the motion to dismiss. Court documents said the family expressed to “resolve absolutely whether or not Suzanne is dead, prior to further prosecution.”

Former District Attorney George Brauchler said the 11th Judicial DA was in a difficult situation.

“When you have the judge strike 12 of your expert witnesses on things that are critical in proving your case you really don’t’ have a reasonable likelihood at trial anymore,” Brauchler said.   

FOX31 legal analyst Chris Decker said the tactic in filing the motion to dismiss without prejudice amounted to a “do-over.”

“As a defense, I’m very frustrated that this appears to be an effort by the district attorney to retool, restart and get away from significant pre-trial rules,” Decker said.

In March, attorneys for Barry Morphew asked that the case be dismissed because they say prosecutors intentionally withheld massive amounts of evidence prior to the preliminary hearing and probable cause would not have been found.

Catch up with the case

Attorneys for Barry Morphew are expected to hold a news conference sometime Wednesday. We will stream it on FOX31 NOW.

This is a breaking news story. FOX31 is going through the documents and will update this story with more details.