DENVER– Colorado’s legal-defense community is raising questions about “what appears to be a cover-up” of systemic problems at the state lab that tests evidence in criminal cases.
In a letter written Friday, Attorney General John Suthers disclosed the existence of a two-and-a-half-month-old, scathing report on the Laboratory Services Division of the Colorado Department of Public Health and Environment, the agency that does forensic testing of chemical samples used by prosecutors.
The March 18 report was the result of an investigation conducted by the Mountain States Employers Council. A redacted version, obtained by The Colorado Independent, shows a decline in training and oversight in the toxicology lab. It also finds it “more likely than not” that:
• “employees perceive they’re ‘not adequately trained to provide fact or expert testimony in court.’”
• “employees justifiably perceive that blood-alcohol training protocols for toxicology lab analysts are inadequate.”
• “refrigerators used to store blood and urine samples are not locked, making them accessible by unauthorized personnel.”
• A supervisor “had toxicology lab employees help him/her with his/her master’s thesis during work hours.”
• That 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.”
• And that “employees justifiably perceive that the toxicology lab is not sufficiently staffed to handle the work load.”
Given that the problems began at least as early as August 2011, hundreds if not thousands of criminal cases could be affected by the allegations, says state Public Defender Doug Wilson.
Suthers wrote that the report contains “information that could be considered mitigating evidence in the prosecution of certain criminal cases in which the CDPHE lab was involved.”
The defense community is livid and wants to know how long Suthers, whose office represents the Health Department, knew about the report before disclosing its findings late on Friday. It also wants to know if the Attorney General — a former district attorney and former U.S. Attorney for the District of Colorado — had shared the report with prosecutors before telling defense lawyers who could potentially have used its findings to defend their clients. The report could be a basis to argue that test results and testimony in their clients’ cases are not, or should not have been, admissible as evidence.
In a letter Saturday, Colorado Criminal Defense Bar Executive Director Dan Schoen urged his members to attend a news conference Monday to make a “united statement” about the report and “what appears to be a cover-up surrounding it.”
The question, he wrote, is whether defendants have been deprived due process and convicted based on science that isn’t detached and neutral.
“Of great concern… is the timing of this disclosure and the source of the information. The information was provided by the Attorney General and not from any of the District Attorney offices that prosecute DUI cases,” Schoen wrote. “It is unknown at this time when prosecutors became aware of this information and what information had been disseminated to prosecutors. Exculpatory evidence and information is required by statute and case law to be disclosed to criminal defendants. Failing to disclose exculpatory evidence can cause the government to be sanctioned by a court which can include the suppression of evidence, or in the case of severe violations, dismissal of the criminal case.”
Defense lawyers for years have fought for information about Colorado’s forensic lab, long suspecting problems with training, procedures and management.
Wrote Schoen: “This is the evidence that shows what we have been seeking has been there all along.”
Health department Executive Director Chris Urbina is defending the lab. In an interview with the Associated Press, he noted its role in confirming listeria in cantaloupe in 2011.
The comment infuriated the defense community.
“I’m appalled that Chris Urbina is comparing listeria outbreaks to humans being incarcerated as a result of potentially faulty lab tests and clearly biased testimony,” Wilson said.
Wilson slams Suthers for “hiding the name” of the supervisor in question, who reportedly left the department last week. Wilson plans to ask Gov. John Hickenlooper for an independent investigative team to see how many cases may have been affected by lab mismanagement.
Attorney General Suthers’ cover letter and the Mountain States Employers Council findings released Friday afternoon: