By Alan Gionet

FREMONT COUNTY, Colo. (CBS4) – A Fremont County judge’s move Tuesday to dismiss the case against Barry Morphew clears him of charges for the moment, but potentially not long term. In dismissing the case “without prejudice” Judge Ramsey Lama left the door open for another case against Morphew.

The trial was to start next week, but the judge sided with the prosecution’s motion for dismissal without prejudice.

(credit: CBS)

“I can’t imagine it would be dismissed with prejudice in this situation,” explained legal analyst Raj Chohan. “It would be hugely controversial.”

More likely he says would be a move to deny the motion and require the prosecution to move forward with the trail.

“Now the community wrongfully is going to believe that Barry just got away with murder,” said defense attorney Iris Eytan.

Eytan wanted it to go to trail she said in a news conference outside the courthouse where the trial was to proceed. It was moved from Chaffee County where the Morphews lived.

“The prosecution was manufacturing a murder case,” she said also favoring dismissal with prejudice. “It was premature because guess what? We’re hearing it now 10 days before trial. No body, no evidence.”

In the filing for dismissal, district attorney Linda Stanley wrote, “The People were hopeful that the search for, and the discovery of, the victim’s body would be concluded well before trial, but weather has complicated the efforts. Specifically, the area law enforcement has been focused on is in a remote and mountainous region nearby the Morphew residence. This area received a significant amount of snow over the winter months before a search could be completed. To date, the area has five feet of snow concealing the location where the People believe Ms. Morphew is located.”

Barry and Suzanne Morphew

(credit: Morphew family)

It wasn’t the only issue for the prosecution. The judge last month barred testimony from a dozen prosecution witnesses, mostly for violations of court rules on the sharing of evidence with the defense in a timely fashion.

“The Court functionally excluded the People’s best evidence to move forward in this case by severely limiting our expert’s testimony. Even if the Court were to partially reconsider its position on the need for such severe sanctions at this late hour, the People would still be left without several key expert witnesses initially endorsed. Without this crucial evidence, and without the victim’s body, the People cannot move forward at this time in good faith,” wrote Stanley.

(credit: CBS)

“There’s no doubt that they need a breather. They need an opportunity to step back and hit the reset button on this case,” said Chohan. “Because of all their witnesses their expert witnesses that got struck from this case.”

A refiling some day could mean new attempts to bring the witnesses and their testimony, which includes information on Barry Morphews whereabouts, back.

“I think they will be able to start from the beginning. I think they will be able to reintroduce these experts, to do the discovery right, to correct the mistakes they had made in the previous case.”

Alan Gionet