The toxicology lab that tests blood samples in many DUI cases across the state, including cases tried in El Paso County, is an unprofessional, sloppy and hostile work environment, according to a former technician there.
Monte DiPalma worked for the Colorado Department of Public Health and Environment's toxicology lab for a year before resigning last August. It was during his tenure that the Denver lab suffered its largest scandal to date — more than 1,000 blood samples having to be re-tested after one technician was discovered to have made errors.
That technician, Mitchell Fox-Rivera, has since been fired. However, many DUI attorneys argue that the lab's problems continue (see "Blood and circus," cover story, Nov. 7), and that they ultimately impugn lab supervisor Cynthia Burbach.
So when DiPalma's e-mail to the Denver District Attorney's Office last week went public, says Sarah Schielke, a Fort Collins-based attorney, "None of that at all came as a surprise to me. It was 100 percent consistent with the caricature that Cindy Burbach has been painting of herself for years."
Lynn Kimbrough, with the Denver DA's Office, confirms the e-mail was private correspondence from "a potential witness in a case to our deputy district attorney." The case is a vehicular homicide in which the defendant was also charged with a DUI.
It's unclear how the e-mail became public, with Kimbrough adding that it "would not have been appropriate for our office to release it." The defense attorney in that case, Sean McAllister, has declined comment.
DiPalma himself couldn't be reached to explain why he sent the e-mail in the first place. But attorney Gary Pirosko, who has been researching the lab for years, has an idea.
"I think the bottom line was, he gets pestered so much [to testify], he finally just says to the DA, 'You guys need to wise up and realize that there's a bunch of problems over there,'" Pirosko says of the lab. "'Are you relying on good science or are you just trying to get a conviction? Because if you are relying on good science, go investigate the lab and have them fix their problems.'"
In the Jan. 27 e-mail, DiPalma alleges:
• There is little oversight or structure in the training of technicians. "An analyst who has no specific training on how to train new employees does training of new staff to analyze blood samples," DiPalma wrote. "The 'trainer' is given a checklist of tasks that the new employee must do but there is no oversight and information is often missed."
• The refrigerator storing the lab's blood samples is not locked at night, meaning an outside cleaning crew could access it.
• Burbach openly denigrates members of her staff: "Ms. Burbach often talked about the details of Mr. Fox Rivera's [sic] case with the state to the Toxicology staff. She would also talk badly of him, calling him names to the staff and making fun of him because of his close relationship to his mother." Burbach would also mock her then-supervisor, Laurie Peterson Wright.
• While working on her college thesis, Burbach "would often have me come to her office to help her with writing, editing and figures in her thesis during the working day. She also had other toxicology employees help her during the working day in the same manner."
• And Burbach is "very biased" in favor of the prosecution. "Ms. Burbach would often come back to the lab from trial boasting about how she really gave it to the defense and would brag that she was sure the person was going to jail."
Asked about these allegations, CDPHE spokesman Mark Salley states: "The Colorado Department of Public Health and Environment does not comment on matters of litigation where we are a witness or a party in the litigation."
Fast and loose
Besides DUI cases, the lab will often be asked for analysis and testimony in DUI-D cases, in which a person is accused of driving under the influence of drugs. Twice, Schielke has cross-examined Burbach in a court case.
In August 2011, Schielke was defending a client who had been arrested for driving under the influence of marijuana. According to Schielke, her client was a medical-marijuana patient, and she was trying to argue that her client's THC level didn't necessarily constitute impairment.
"If you are an occasional or acute user, you can infer impairment from the number, but if you are a chronic user, that number doesn't mean anything when it comes to impairment, because of tolerance," Schielke says. "That's what I was trying to extract out of Cindy from this trial."
However, to Schielke's surprise, Burbach balked at the idea that there was a difference between a chronic and acute user. In fact, she balked at the idea that there was a difference between the words "chronic" and "acute." What Burbach said, according to the transcript, was:
"Yeah, I don't like the word chronic. I like the word acute."
Schielke asked, "And so did you not perceive any difference between those two words?"
"There's no difference between them scientifically," Burbach stated.
The next time she had Burbach on the stand, again for a DUI-D in which her client had a high THC blood level, Schielke was prepared. In a trial last month, Schielke asked: "In your scientific opinion, Ms. Burbach, does 'chronic' mean the same thing as 'acute'?"
"No," Burbach responded. "Acute is short-term."
"Do you remember testifying that they mean the exact same thing?" Schielke pressed.
"Well, I probably did," the head of the state toxicology lab replied. "Sometimes I get talking so fast I don't remember what I say."
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