Prosecutor Censured
A stipulated public censure was approved by the Colorado Presiding Discipline Judge
Hurlbert was a contract deputy district attorney assigned to a high-profile first-degree murder case. Over the course of the case, the presiding judge issued a series of unfavorable rulings for the prosecution. Less than two months before the case was to go to trial, the elected district attorney circulated to the prosecution team a link to an online petition, which called for an investigation and the possible removal of the judge due to an alleged conflict of interest centering on the judge’s former spouse. Hurlbert was concerned that the allegations could, if true, amount to the judge’s undisclosed conflicts of interest. Rather than raise the matter with the judge or with the opposing party, however, Hurlbert endorsed the proposal of another member of the prosecution team that the judge’s former spouse be interviewed regarding the allegations. Even as the prosecution team discussed dismissing the case, Hurlbert advocated for investigating the judge’s state of mind regarding potential conflicts that could have informed his rulings in the matter. Hurlbert then learned that the elected district attorney planned to have her office’s investigator conduct the interview. Hurlbert, who had more experience as a prosecutor than the elected district attorney, had concerns that the investigation should be independent. Even so, he failed to advise the district attorney to use an independent entity for the investigation. Nor did he take affirmative steps to deter or prevent the district attorney from proceeding with the interview. Rather, Hurlbert discussed the interview with the district attorney office’s investigator.
Though this reckless conduct, Hurlbert violated Colo. RPC 8.4(a) (it is professional misconduct for a lawyer to attempt to violate the Rules of Professional Conduct) and Colo. RPC 8.4(d) (it is professional misconduct for a lawyer to engage in conduct prejudicial to the administration of justice).
9 News reported on the bar complaint
The lead prosecutor in the case against Barry Morphew, who was accused of killing his wife Suzanne, has been accused of retaliation against the judge presiding over the now-dropped case.
The Attorney Regulation Counsel on Thursday filed a complaint against Mark Hurlbert, a deputy district attorney for the 11th Judicial District Attorney’s Office. The complaint, which was filed with the state Supreme Court, accuses Hurlbert of joining an effort by DA Linda Stanley to discredit Judge Ramsey Lama. It also accuses Hurlbert of not disclosing evidence and expert testimony to the defense in the time frame that is required.
The accusations revolve around the high-profile case involving Barry Morphew, who was charged with murder in the death of his wife Suzanne Morphew in 2020. The charges were dropped just days before the trial was set to begin.
The complaint includes text messages between Hurlbert and Stanley where they discuss investigating Lama after a series of rulings against the prosecution.
In one of the messages, the complaint says Hurlbert texted the prosecution team, “Do all of you have some time to talk tonight? Judge is messing with us again.”
It says Hurlbert confirmed or agreed with the prosecution’s decision to enlist its own investigator to interview the former wife of Lama, in an effort to uncover information about Lama that would be cause for recusal or disqualification in the case.
A complaint was previously filed against Stanley. That complaint alleges Stanley made multiple missteps in the Morphew case, which include the above-mentioned investigation into Lama, speaking to “true crime” podcasts, showing up late repeatedly for court, and discovery violations.
In December, Stanley responded to the allegations, admitting that she did in fact launch an investigation into Lama because she didn’t agree with his rulings.
Lama said they went after him for false claims that he abused his ex-wife based on online conspiracy theories.
The complaint against Hurlbert claims he went along with this plan despite no credible evidence Lama had physically abused his ex-wife or evidence of any other conduct that would justify a criminal investigation.
It says Hurlbert’s actions constitute an abuse of power and were contrary to a prosecutor’s responsibility to act as a minister of justice.
The complaint also claims Hurlbert failed to timely and completely comply with requirements over expert witness disclosures even after the court granted additional time. The complaint says a lack of diligence resulted in the prosecution’s expert disclosures to Morphew were untimely, incomplete and inaccurate.
Hurlbert denied the allegations and said he’ll file a response.
Hurlbert was the elected DA who handled the Kobe Bryant sexual assault case in Eagle County and worked in Arapahoe County after that. He was assigned to take over as lead counsel in the Morphew prosecution in October 2021.
The Attorney Regulation Council regulates the practice of law in Colorado by overseeing attorney admissions, attorney registration, mandatory continuing legal and judicial education, attorney diversion and discipline, regulation of the unauthorized practice of law, and inventory counsel.
(Mike Frisch)