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Questioning the witness



In March, the state lab responsible for testing blood samples in DUI cases across the state, including cases here in Colorado Springs, dealt with the discovery that a number of tests had been performed incorrectly.

About 1,700 chemical blood tests would need to be redone, said lab supervisor Cynthia Burbach. Defense attorneys reacted with angst.

"The last thing that our system wants is wrongly accuse and convict a person who is actually innocent," says Tim Bussey, a local attorney who handles DUI cases. "Chemical testing is a scientific process, and when we speak of science, we speak of precision, accuracy, reliability and transparency. ... Anytime that a lab is being reviewed, you have to look at it in its entirety, starting at the top."

At the top is Burbach, employed by the Colorado Department of Public Health and Environment since 1984.

Back in 2008, Denver-based attorney Gary Pirosko says that he was "sick and tired of everyone bitching" about Burbach, and spent some time digging into her background. She's testified in more than a thousand court cases, leaving a long trail of testimony.

To sort through piles of documents, he says, he enlisted the help of then-University of Denver Law School intern James Ahearn (now a 4th Judicial District deputy DA). What they found would become the basis for a discovery motion — an attempt to force Burbach to provide documentation regarding her education, her work calendars, and so on — that he says he's filed in numerous cases.

What's in a degree?

In a 2008 case, Burbach told Boulder-based attorney Mary Claire Mulligan that she had a bachelor's degree in chemistry and biology.

This didn't add up, Mulligan tells the Indy; the attorney had been told by the university that Burbach's degree was in biology alone.

During that trial, according to transcripts, she asked Burbach, "So what was your degree in?"

"It's in biology and chemistry," Burbach replied.

"So you had two separate majors?"

"Yes," Burbach said.

When Burbach was called as an expert witness for the prosecution in a case of Glenwood Springs-based attorney Tom Silverman, he pressed Burbach on her degree. He had sent an investigator to New Mexico State University, who, he says, was able to get details from that school's registrar.

Picking up where Mulligan left off, he asked Burbach: "Well, by having a degree, do you mean you have a major in biology and a major in chemistry?"

"Yes. Well, I have a Bachelor of Science in biology and a chemistry minor."

"You have a chemistry minor?" he asked.

"Yes, yes."

"You have testified in those numerous other occasions saying that you have a major in chemistry, is that true?"

"I said chemistry and biology, they encompass the same thing," Burbach replied.

Later, Silverman asked, "The truth is that you are not listed as having a chemistry major or even a minor according to the Registrar at New Mexico State, isn't that true?"

"Well," she began, "I would probably agree with that. I still consider it a chemistry degree because I have a lot of hours in chemistry."

The confusion surrounding her degree is reflected by curriculum vitæs. In her 2005 and 2008 CVs, Burbach claims that she received her Bachelor of Science from New Mexico State University in 1980, with her major field of study as "Biology/Chemistry." In her latest CV, she states that she has a "Bachelor of Science Biology."

Silverman recalls making light of the situation in his closing statement to the jury.

"[Comedian] Jon Lovitz used to do this routine, 'The Pathological Liar,'" he says. "And he'd say, 'Yeah, yeah, I got a college degree. Yeah, yeah, that's the ticket. And a master's degree, too. Yeah, yeah, and a doctorate, too, that's the ticket.' Well, that's what I said in closing arguments in that case, and the jury acquitted my client.

"I knew I'd won when the jury was laughing."

Other inconsistencies

Pirosko says it was just curiosity that led him to take one of Burbach's 2008 legal opinions and run it through a search engine. "I thought that the language in this opinion was way above her pay grade," he says.

What he found was that large sections of the opinion appeared to be lifted wholesale, without attribution, from a 2003 article from the American Prosecutors Research Institute.

Pirosko notes that the publication stipulates the article "is presented for educational purposes only and is not considered legal advice."

"If I were a judge and I saw that," he says, "I'd go through the roof."

Another oddity from her testimonies is the number of urine tests she claims to have completed.

In March 2007, according to Pirosko's motion, Burbach testified that she had performed close to 150,000 urine tests. Later that month, the number increased to more than 300,000. A year later, she testified that the number had "to be over a million."

She also testified in 2007 that "I currently teach in the University of Colorado, Colorado Springs in the master of forensic toxicology program." According to UCCS, there is no record of Burbach having ever been paid to teach at that university.

Asked to comment on Burbach, CDPHE responded: "The department does not publicly release records maintained due to the employer/employee relationship, such as educational records. Any challenge to Ms. Burbach's trial testimony would need to be taken up with the relevant court with jurisdiction over the case."

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