Colo. Defense Lawyers: Suthers, Prosecutors Suppressed Crime Lab Concerns

Colorado prosecutors were informed about alleged misconduct in the state toxicology lab at least three weeks before the problems were disclosed to defense lawyers, according to documents obtained by The Colorado Independent.

Leaders in the criminal defense community say the district attorneys’ silence breaks constitutional provisions requiring prosecutors to disclose evidence that might favorably affect defendant cases. Potentially botched DUI lab results and other kinds of toxicology tests can make or break a criminal case. The same is true of potentially biased testimony given by lab technicians.

A report released last Friday about the Colorado Department of Health and Environment’s Laboratory Services Division found security breaches, faulty training and bias in favor of prosecutors dating back at least to August 2011. Its findings were withheld since March and, when they were released in May, shared with prosecutors. That was well before defense attorneys, whose clients’ cases are affected by the lab evidence, were brought into the loop.

“Prosecutors’ obligation is to see justice, not convictions. They’re constitutionally required to turn over all evidence, including potentially exculpatory evidence, and it appears that they have failed miserably as it relates the continual problems at the Colorado Department of Health’s laboratory,” state Public Defender Doug Wilson said Thursday night.

Tom Raynes, executive director of the Colorado District Attorney’s Council, didn’t answer an email seeking a response.

Top defense attorneys also are slamming state Attorney General John Suthers. Documents show a staffer from Suthers’ office was present at a meeting in which the District Attorney’s Council discussed the report. That meeting came three weeks before Suthers notified the Colorado Criminal Defense Bar.

Meeting minutes show the district attorneys’ group had been made aware of the report detailing the allegations about the lab on May 17. Defense lawyers weren’t notified about the report until June 7.

Suthers’ office didn’t respond to calls for comment after office hours Thursday.

“As the chief law enforcement officer of the state of Colorado, it is disappointing that the attorney general’s office saw fit to discuss the report with prosecutors three weeks before meeting its constitutional obligation to release the report to the defense community, thus potentially impacting hundreds of cases during that period of delay,” Wilson said.

News of the delayed disclosure came hours after Gov. John Hickenlooper’s office announced the resignation of Chris Urbina, executive director and chief medical officer of the health department, the agency that oversees the lab. Urbina has been under fire since last week, when Suthers — whose office also represents the health department — wrote a letter publicly disclosing the report and its findings of probable gross mismanagement.

The investigation was commissioned by the health department and conducted by the Mountain States Employers Council. Investigators found credible allegations that

• the lab is understaffed;

• refrigerators used to store urine and blood samples weren’t locked, “making them accessible by unauthorized personnel”;

• lab employees are not properly trained to testify in court;

• a supervisor “had toxicology lab employees help him/her with his/her master’s thesis during work hours”;

• and that the same supervisor “made statements that suggest s/he is biased against defendants in criminal cases” and “imposes unreasonable burdens on toxicology analysts by making excessive accommodations for prosecutors and law enforcement agencies.”

The report is dated March 18.

Members of the defense community question why the health department and Suthers’ office didn’t disclose the problems immediately — while criminal cases were being prosecuted based on the lab’s test results and its technicians’ expert testimonies.

Critics also question why district attorneys were informed about the report three weeks earlier than the lawyers defending clients against criminal charges.

In response to a freedom of information request filed by The Independent, Raynes at the DA’s Council disclosed the minutes that show the crime lab report was discussed. Minutes from the group’s May 17 meeting at the Lodge at Vail read that its staffer Chris Halsor “had just received a call indicating that there was a ‘report’ at issue in a Denver case related to the CDPHE, the lab, and potentially Ms. Cynthia Burbach in particular.

“[Halsor] noted that Ms. Burbach has currently been taken off court testimony at this time,” the minutes continue. “Mr. Halsor will be speaking with the CDPHE attorney for more information and updates on this and other recent CDPHE policy changes.”

The documents show that most Colorado district attorney offices were represented at the meeting. Attorney General staffer Matt Durkin was also present.

About two weeks after the meeting, Burbach – manager of the toxicology lab who was discussed at the DA’s Council meeting – left her job.

Burbach, according to the minutes, was also the subject of discussion at a DA’s Council meeting in April, 2012, after she contacted the group to explain that “one of her laboratory analyst(s) had been terminated for not following particular protocols.”

“It was determined that the analyst had handled approximately 1,700 blood samples,” the author of the minutes wrote.

Problems in Colorado’s toxicology lab are estimated to have potentially affected the outcome of thousands of criminal cases statewide. Wilson likens the controversy to scandals that have unfolded in labs in Texas and Massachusetts.

“As more evidence comes to light,” he said, about problems at the lab and about how information about those problems has been handled, he called on Hickenlooper to “follow those states’ leads… by assigning an agency independent of the attorney general’s office and the health department to head the investigation into the laboratory and any other people involved with potential criminal or civil liability.”

Wilson manages 410 lawyers defending thousands of indigent clients each year. He said those clients deserve to know whether the attorney general’s staff and the state’s prosecutors have been suppressing evidence that might be vital to arguments being made on behalf of defendants across the state.