Rocky Mountain (Not So) High

For years, the criminal defense bar has challenged the Colorado state lab's competency, integrity and accuracy. Arguments questioning its results, its methodology have been made over and over, and rebuffed.  The problem is always the same, that without knowing what's happening inside the onion, you can't prove that it's rotten at its core.  And the defense bar was always on the outside, only shown the top layer that looked exactly the way officials wanted it to look.

But they knew.  And they were right.

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.

Happy day?  Not by a long shot.  Not only does the report reveal grave internal problems giving rise to critical questions about the reliability of the lab's outcome, but it turns out that the report had been in hand for a while, and the state concealed it.

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.

Is the concealment of this report for two and a half months the end of the world?  It is for every human being subject to prosecution, conviction and sentence based upon a lab report. Why?  What justification could Suthers possibly have for his deliberate act of concealment?

More than that, the concealment was of the final report. How long had Suthers, or those who were in a position to know about how the investigation was developing, been aware of the massive failings of the lab? How many people on a government paycheck, prosecutors in particular, knew the investigation was showing their lab to be less than they would suggest in court?

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.

What of the duty to disclose under Brady?  Is there an exception for stuff that would undermine thousands, tens of thousands, of cases because of incompetency and unreliability?  Is there an invisible footnote in Kyle v. Whitley that only prosecutors and judges can see that excepts exculpatory information when the government wants to hide it?

What has happened in Colorado undermines not only our undue reliance on forensic science to do the job of proving guilt without the responsibility of accuracy, but the pontifications of respect for the law and fulfillment of constitutional duties that constantly spout from official mouths.  When faced with a challenge, officials switch to platitudes to prove they are humble servants of the people and would never, ever, do anything wrong.  And judges shrug and opine, "well, there you go."  As if nothing could ever go wrong because no one with an official title admitted to it.

And because they are all deeply trustworthy and would never do wrong, if they say that all is well, then dammit, all must be well.  All while AG Suther kept this information in his vest pocket as lab reports were filed and served to prove that human beings must be imprisoned.

They were right all along, the criminal defense lawyers. They were right to question and challenged, but nobody would believe them because the reports were nicely typed and signed, and looked completely official.  So nobody from the criminal defense bar could prove for sure that the inside of the state lab onion was rotten, but the business of convicting people went on as usual.  And nobody from the government side bothered to mention it even though they knew.  Got a platitude for that?







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