TELLER COUNTY, Colo. - We still don't have access to it, but a judge ruled Friday that Patrick Frazee can now see the arrest affidavit that says why police accuse him of murder in the disappearance of his fiancee, Kelsey Berreth.
Frazee's defense attorney was given access to the affidavit --which was filed in late December before Frazee's arrest on the 21st -- on Monday with the stipulation that Frazee himself couldn't see the document or discuss it with his defense team.
Adam Steigerwald, Frazee's public defender, moved to let Frazee see the document, and Friday a judge granted that request. Prosecutors also said Friday that they are now OK with Frazee seeing the document, though it still remains sealed to the public.
We asked why Frazee wasn't given access to the document in the first place, and the district attorney's office said that it could have put a potential witness in danger, though we weren't given specifics about why a witness would be in danger.
After we reported that a woman in Idaho was under investigation for potentially disposing of Berreth's cell phone, a prosecutor hinted that her involvement is on record in the affidavit. We know the woman's identity but have chosen to not make that information public since she hasn't been charged with a crime.
"I can't really speak to any of the information in any of the probable cause affidavits because those remained sealed at this time," said Jennifer Viehman with the 4th Judicial District Attorney's Office.
We're expecting to get that affidavit after Frazee's next preliminary hearing. That hearing was originally set for Jan. 29 but was reset to Feb. 19 after Frazee's defense requested more time due to difficulties with getting parts of the court discovery. During that hearing, the judge will also rule on whether or not a piece of evidence can be destroyed due to testing.
Frazee was taken back to the Teller County Jail after Friday's hearing.
As 2018 comes to a close, we still don't know exactly why authorities accused Patrick Frazee of murder after the disappearance of his fiancee, Kelsey Berreth.
Neither do Frazee's attorneys. And Frazee, who's presumed innocent until proven guilty, has also been left in the dark by the state.
Frazee appeared in the Teller County District Court for a first hearing in Cripple Creek on Monday, more than a month after Berreth was last seen in Woodland Park. He's officially been charged with two counts of murder and three counts of solicitation of murder.
District Attorney Dan May clarified that the two counts of murder correspond to two different theories, with the first charge being "after deliberation" and the second murder charge being related to an alleged robbery that resulted in Berreth's death. May wouldn't elaborate on why three separate solicitation charges were filed.
Berreth has been missing since Thanksgiving Day, and despite the murder charge, her body still hasn't been found yet. Investigators are still gathering clues in Colorado and Idaho -- Berreth's phone was last pinged in south-central Idaho.
Frazee was arrested on Dec. 21 hours after authorities searched Berreth's Woodland Park home. Police said they suspect Berreth was killed inside her home.
During the hearing Monday, little information was given out -- Judge Linda Billings-Vela mostly issued rulings on preliminary motions that were filed by the defense and prosecutors. Those motions included requests to preserve information from law enforcement, limit media coverage of the court proceedings, limit the DA's contact with media, and to get the probable cause affidavit that contains the reason for Frazee's murder charge.
Billings-Vela agreed to partial preservation of law enforcement communications (with the exception of thousands of routine emails/text messages), shot down the defense's request to shut out media completely, and said the DA's office can continue hosting press conferences and releasing information through Twitter/Facebook. One piece of evidence was introduced that may be destroyed during testing, and the prosecution team filed a motion to say it's waiting for more information before officially introducing it.
But Frazee's attorney, Adam Steigerwald, said it was impossible to represent his client when the state wouldn't release the probable cause affidavit outlining the case against Frazee. Prosecutors said they would release the affidavit to Steigerwald Monday, but said he couldn't discuss the document with Frazee.
That brought an obvious objection from Steigerwald.
Billings-Vela questioned the move, and called it a "direct tension with the Sixth Amendment."
"How’s counsel supposed to start preparing if he can’t even discuss the information he’s receiving?" Billings-Vela said. "I’m well aware there are multiple investigations, and I want to make sure they’re not hampered, but Frazee has the right to be represented by counsel who can inform him."
Prosecutors asked for a hold of seven to 10 days before Frazee could see the affidavit, but that matter, along with the motion about the evidence testing, will be discussed at a hearing this coming Friday at 1:30 p.m.
Regardless, Dan May said that the affidavit would be released to the public pending a judge's ruling by Jan. 29, when Frazee will have his next preliminary hearing. That affidavit will shine a light on the reason for the murder and solicitation charges.
We asked May to specify how unsealing the affidavit would have a negative impact on the investigation and he said there were concerns about witness safety, though he didn't give an exact reason why a witness would be harmed based on their name being published.
At this time, no other suspects or persons of interest have been identified.
Frazee entered the court silent and sat in the jury box before moving to sit near his attorneys. When he left the court, he remained emotionless, only bearing a few forehead wrinkles as he looked up while walking. He entered the elevator and immediately turned his back to the media cavalcade bombarding him with questions.
Berreth's daughter is with her grandmother.
The man suspected of killing Kelsey Berreth will appear in court Monday morning for his first criminal case hearing.
The hearing will begin at 8:30 a.m., KRDO will not stream the hearing but will have live updates from the courthouse at noon.
On Thursday, Judge Linda Billings-Vela ordered that Barreth's parents will take custody of Frazee and Berreth's daughter, Kaylee. However, Frazee's mom, Shelia Frazee filed a motion to intervene and the judge has put off any decision on that until later.