On June 7th, Colorado Attorney General John Suthers sent out a report to state prosecutors and the criminal defense bar, to inform them of numerous problems with the state toxicology lab that could impact hundreds, or even thousands of DUI cases – including any cases that are prosecuted through the recently-approved 5 ng/ml THC driving limit.
According to the report, the Department of Public Health and Environment’s toxicology lab, which performs blood and drug screening tests for law enforcement agencies across the state, has been lax in standards and practices, and is now under investigation for inadequate employee training, unsafe storage of evidence, under-staffing and supervisor bias, among other problems.
Defense attorneys around the state are outraged – not just at the questionability of evidence from the lab brought against defendants, but at the fact that the report, which, in the attorney general’s own words, “could be considered mitigating evidence in the prosecution of certain criminal cases in which the CDPHE lab was involved”, was dated March 18th, but not released until June 7th.
“Hundreds of people have gone through the court system in the past three months without knowing about these problems or that the evidence in their case could be compromised,” said Sean McDermott, president of the Colorado Criminal Defense Bar (CCDB), addressing the issue at a press conference Monday. The CCDB is calling for an independent investigation of the state’s lab, and pushing for the use of independent labs in the state justice system.
In the midst of the debacle, Dr. Chris Urbina, the executive director and chief medical officer for the Colorado Department of Public Health and Environment, and Cynthia Burback, the supervisor of the state’s toxicology lab, have retired. The Department of Public Health and Environment issued an 11-page statement defending Burbach (as most of the allegations of poor practices are directed at her), and insisting that “No connection exists between Cynthia Burbach’s decision to retire and the release of the report.”
The statement issued in Burbach’s defense by the CDPH&E offered a myriad of excuses, citing “systemic problems at toxicology lab”, and claiming that “High employee turnover and many new hires made the work leader’s responsibilities more stressful and difficult”. Officials have announced that they have addressed some of the issues brought to light, such as locking refrigerators containing blood samples, reviewing staff size and scheduling, and increasing training. However, many of the complaints issued were regarding pro-prosecution bias surrounding trial testimony.
Sean McAllister, marijuana defense attorney and NORML legal committee member, confirms the claims of Burbach’s bias; “As the co-chairman of the DUID committee, I saw Ms. Burbach commonly come in with other anti-marijuana advocates, and she said, ‘The science is clear. One or two nanograms and you’re impaired.’ So she supported the five nanograms, but felt it should be even lower.”
Burbach insisted the 5ng limit accurately determines impairment. McAllister notes the lack of evidence to support such claims, remarking that despite the lack of science, “you’ve got the state toxicologist coming in and saying, ‘There isn’t any doubt.’ And I think legislators put a lot of weight on her testimony and credibility.”
“I think it was the interpretation of the numbers that were cooked, politically interpreted. Ms.Burbach would come into court and say everybody at five nanograms is impaired, and she never acknowledged a lack of certainty. And that may have tipped the balance and gotten innocent people convicted”, said McAllister. “As a scientist, she’s supposed to be unbiased. But she was giving very politically oriented testimony based on an agenda.”
According to the statement from the CDPH&E, Burbach “almost always testified as an expert toxicologist on the likely effects of the tested level of intoxication on an individual”, and “has been the sole testifying expert witness as a toxicologist on behalf of the Toxicology Lab for 13 years”. The statement recalls that “Cynthia Burbach gave in-person testimony in at least two cases per week, 50 weeks per year, or at least 100 times per year and at least 1,300 times in the past 13 years.”
In regards to the report’s late release, NORML, with McAllister acting as legal representation, is “requesting that the Legislature reconsider its decision to impose an arbitrary DUID-marijuana standard of 5 ng/ml in light of the revelations of the drastic deficiencies in the lab training, qualification, accuracy, standard operating procedures, reporting, and alleged bias of employees of the state toxicology laboratory at the Colorado Department of Public Health and Environment.”
Defense attorneys in Colorado have made known their suspicions that the report was intentionally withheld as not to influence the debate in the legislature regarding the 5ng THC DUI bill.
“It’s very clear to me that the report was within the knowledge of the health department and the attorney general’s office by mid-March — March 18 or 20. And there continued to be DUID debates going right into early May”, McAllister said. “I don’t have specific evidence of a cover-up, but it seems to me it was the obligation of both the health department and the attorney general’s office to make it public as soon as it was done — because, as the attorney general has said, it has exculpatory value to defendants. The effect of what they did was to deny people information that was relevant — and as we said at our press conference the other day, hundreds of people likely pleaded guilty or were convicted without the benefit of this information. So whether it was a cover-up or just lazy bureaucracy, it deprived people of knowledge about health department bias.”
With the state’s toxicology lab so ill-equipped to handle the influx of DUID cases that could stem from the 5ng THC DUI bill, and the bias that can so easily effect the outcome of court cases lacking it evidential science, it is a sensible suggestion to request the legislature reconsider the controversial mandate, and would be prudent of them to do so.