The Denver-based federal appeals court agreed on Monday that Barry Morphew, who now stands accused for a second time of murdering his wife, failed to state viable claims against the government officials involved in his first, unsuccessful prosecution.

Morphew was arrested in May 2021, almost a year after his wife, Suzanne Morphew, disappeared. State prosecutors dismissed the case in April 2022 and Morphew filed a federal lawsuit a year later. As defendants, he named the elected district attorney, Linda Stanley; multiple deputy district attorneys; investigators with various agencies; and officials in Chaffee County.

A trial judge dismissed Morphew’s claims related to his wrongful prosecution, largely finding that probable cause existed to charge him for Suzanne’s murder even without the alleged omissions and misrepresentations by law enforcement.

In an April 6 opinion, a three-judge panel of the 10th U.S. Circuit Court of Appeals agreed.

“Here, the district court emphasized the many inculpatory facts in the arrest affidavit that Mr. Morphew did not dispute,” wrote Judge Veronica S. Rossman. “Mr. Morphew’s allegations, taken as true and viewed in the light most favorable to him, do not plausibly allege a lack of probable cause for his arrest and prosecution.”

Since Morphew filed his civil lawsuit, investigators found and identified remains in Saguache County as Suzanne’s. A grand jury indicted Morphew in that jurisdiction, and he has pleaded not guilty to Suzanne’s murder.

While the appeal was pending, the 10th Circuit asked lawyers for Morphew and the defendants to address the effect of Morphew’s renewed prosecution on his civil case. Also, the court wondered whether it should hold oral arguments in the appeal, given that Morphew’s attorneys’ statements could pose a risk to his criminal defense.

Morphew’s lawyers agreed they had an ethical duty to “refrain from making statements” that could harm their client and asked the 10th Circuit to pause the appeal until the criminal proceedings were over. The defendants asked the court to decide the appeal, as the murder prosecution could take years.

The 10th Circuit panel chose to move forward and did not rely on any of the developments from Morphew’s second prosecution.

Morphew’s complaint alleged that the 129-page affidavit that investigator Alex Walker IV signed in support of his arrest contained misleading statements and omissions. He alleged the defendants were liable for malicious prosecution and other violations of his rights that largely revolved around the lack of probable cause to believe he murdered Suzanne.

In a September 2024 order, U.S. District Court Chief Judge Daniel D. Domenico repeatedly criticized the defendants for their unsuccessful first prosecution of Morphew, the consequences of which included the Colorado Supreme Court’s disbarment of Stanley.

“Plaintiff, like anyone accused of a crime, deserves better than what happened here. The People of the State of Colorado, on whose behalf and in whose name the charges against Plaintiff were brought, deserved better. And Suzanne Morphew certainly deserved better,” wrote Domenico.

However, in reading the extensive allegations in the affidavit and accounting for Morphew’s contention that relevant information was misrepresented or omitted, Domenico still found the investigator’s statement in support of an arrest warrant established probable cause.

“Did the investigators and prosecutors have an obligation to Plaintiff and the state courts to be more careful and candid? Yes. Did they fail to live up to that duty? By all appearances, yes. Do the full facts as alleged here raise some doubt about the theory presented in the affidavit and the certainty that Plaintiff was solely responsible for Mrs. Morphew’s death? Yes,” he wrote. “But do they eliminate even a ‘fair probability’ that he was involved? The answer to that can only be no. For all its infuriating flaws, then, the prosecution of Plaintiff was not unlawful.”

Morphew appealed to the 10th Circuit, taking issue with Domenico’s reading of the allegations in the arrest affidavit.

“His findings are replete with credibility determinations best left for the jury and certainly warranted an opportunity for Plaintiff to respond,” wrote Morphew’s lawyers.

“In fact, the district court did precisely what Mr. Morphew argues it should have done: accepting his allegations as true, it analyzed whether a ‘corrected’ affidavit (excluding the material Mr. Morphew claims to be false and misleading, and including the information Mr. Morphew claims to have been wrongly omitted) would have supported probable cause for the arrest,” responded the defendants. “That the district court reached a different conclusion than Mr. Morphew does not mean the district court’s conclusion is wrong.”

The 10th Circuit panel agreed with Domenico’s handling of the probable cause issue.

“The defendants raised the issue of whether Mr. Morphew sufficiently alleged lack of probable cause,” wrote Rossman. “The governing legal standard obligated the district court to determine whether the modified affidavit provided probable cause.”

The case is Morphew v. Chaffee County, Colorado et al.

Reporter Carol McKinley contributed to this article.