Unfounded Why?
A Review of Protocol and Practice Vulnerabilities in a Dallas County Crime Lab




           The informati...
The Southwestern Institute of Forensic Sciences
              (aka SWIFS or The Dallas County Crime Lab)

The Dallas Count...
SWIFS’s Management Violations

1. Good Laboratory (Scientific) Practices – use of expired chemicals; general
     uncleanl...
Ironically, these plaques are found in numerous locations throughout SWIFS.

                                             ...
Strangely, this is the extent of information available for SWIFS’s forensic services to the public.
Further information re...
SWIFS Organizational Chart   Dr. Jeffrey Barnard     Director/
                                                     Chief ...
SWIFS Personnel   Dr. Jeffrey Barnard     Director/
                                          Chief Medical Examiner

    ...
FBU analysts risk committing perjury because SWIFS
   does not use reliable principles and methods




                   ...
FBU analysts risk committing perjury because SWIFS
                 does not use reliable principles and methods
Melendez-...
FBU analysts risk Expert Witness Malpractice lawsuits because
         SWIFS does not use reliable principles and methods
...
The National Academy of Sciences, February 2009




                                                 “I am troubled by the...
Texas Law Requires Accreditation for Forensic Labs




                                  American Society of Crime Lab Dir...
Oversight of crime-lab staff has often been lax
 By Ruth Teichroeb, Seattle Post – Intelligencer Reporter
 July 23, 2004
 ...
ASCLD-LAB Accreditation External Audit is required every 5 years

   From the ASCLD-LAB Inspection Report, SWIFS Inspectio...
ASCLD-LAB Accreditation External Audit is required every 5 years
  Inspectors used only 4 days to assess if SWIFS’s Standa...
ASCLD-LAB Accreditation External Audit is required every 5 years
   Inspectors used only 4 days to assess if SWIFS’s Stand...
ASCLD-LAB Accreditation External Audit is required every 5 years




Accreditation and Expert Witness Testimony:

The Wiza...
ASCLD-LAB Accreditation External Audit is required every 5 years




Accreditation and Expert Witness Testimony:

The Jedi...
ASCLD-LAB Accreditation External Audit is required every 5 years




Accreditation and Expert Witness Testimony:

Genetic ...
SWIFS Inadequate and Incomplete Annual Audits

From the American Society of Crime Laboratory Directors - Laboratory Accred...
SWIFS Inadequate and Incomplete Annual Audits


From “Quality Issues in Forensic Laboratory Science” (2004).ppt - Authored...
SWIFS Inadequate and Incomplete Annual Audits


Internal and External Forensic Biology Unit (FBU) Laboratory Audits*
Dates...
SWIFS Inadequate and Incomplete Annual Audits
Continued from previous slide…

Internal and External Forensic Biology Unit ...
SWIFS Inadequate and Incomplete Annual Audits
 The ASCLD/LAB Inspection Report and the Quality Assurance Audit were done o...
SWIFS Inadequate and Incomplete Annual Audits
More DPS labs flawed: DNA testing woes across state threaten thousands of ca...
A response to my anonymous query sent to several forensic lab
 managers throughout the U.S. regarding mismanagement, proto...
www.thejusticeproject.org 2008




                                 There is no oversight board to assure that
           ...
“Quality Issues in Forensic Laboratory Science” (2004).ppt
                        Authored by Dr. Tim Sliter




While ac...
Management Controls Communications



   EXCLUSIVE: Policing the crime labs: No government bodies regulate forensic labs
 ...
Management Controls Communications

              Request For Reviews (RFR) and Corrective Action Requests (CAR)

From the...
Management Controls Communications




    Institute-wide emails or memos
    addressing problems or incidents
    should ...
Management Controls Communications



Verbal directives are relayed from
Management to analyst to other analysts,
leading ...
Management Controls Communications

                                                                              ASCLD/LA...
Management Controls Communications
       U.S. Dept. of Justice (DOJ)                                            ASCLD/LAB...
Management Controls Communications




                                                  Management




                  ...
Management Controls Communications




           At SWIFS:

        Not done consistently…
           Not done correctly…...
Management Controls Communications
From a Public Information Act – Open Records Request, 06.22.2009…




                 ...
SWIFS Annual Accreditation Internal Audit Report

…continued from previous page




               These documents are not...
Management Controls Communications

The lack of communication between the Supervisors and the analysts regarding audit fin...
Management Controls Communications




               “Quality Issues in Forensic Laboratory Science” (2004).ppt - Dr. Tim...
From the NIJ
                   FY0X Forensic DNA Backlog Reduction Program
                                 CFDA No. 16.7...
From the NIJ
       Paul Coverdell Forensic Science Improvement Grants Program
                             CFDA No. 16.74...
National Institute of Justice (NIJ) Grants awarded to
                         Dallas County SWIFS by year



  $822,502 2...
New SWIFS Building…Estimated $45 million




112,000-sf, three-story Forensic Sciences building containing ballistics test...
Campbell: Wrongful convictions an expensive proposition
May 22, 2008
BY LINDA P. CAMPBELL
STAR-TELEGRAM STAFF WRITER
…
And...
The Texas Department of Public Safety (Austin)
              knew of the internal complaints…yet did nothing.

From: Jac.B...
The Texas Department of Public Safety (Austin)
             knew of the internal complaints…yet did nothing.
From: Jac Bla...
The Dallas County District Attorney’s Office knew
             of the internal complaints…yet did nothing.
03.09.2009

Uns...
New problem looms in police lab scandal
Jaxon Van Derbeken, San Francisco Chronicle Staff Writer
Wednesday, March 24, 2010...
http://www.fsc.state.tx.us/about.html   Click to advance
The Texas Forensic Science Commission (TFSC) knew
         of the internal complaints…yet did nothing for 2 months.
Both T...
The Texas Forensic Science Commission (TFSC) knew
          of the internal complaints…yet did nothing for 2 months.




 ...
The Texas Forensic Science Commission (TFSC) knew
           of the internal complaints…yet did nothing for 2 months.
from...
The Innocence Project of Texas was aware of the problems at SWIFS…


   To: blackburn@ipotexas.org
   From: ex-SWIFS emplo...
Finally…




The TFSC and ASCLD-LAB are currently assessing SWIFS’s response to the complaints.

                         ...
TEXAS FORENSIC SCIENCE COMMISSION – AGENDA

                                          October 2nd, 2009 - 9:30 A.M.
      ...
A speech to the National Academy of Sciences regarding economic and public policy challenges in forensic science
Washingto...
intentionally blank




                      Click to advance
The following examples are an extension of the anonymous Report (03.16.2009) and
Addendum (03.30.2009) sent to the Texas F...
Incorrect and Expired stock chemicals used
                      to prepare Serology Reagents

          Laboratory “criti...
Incorrect and Expired stock chemicals used to prepare
                LMG Reagent (used for testing of blood)

From the SW...
Incorrect stock chemical used to prepare LMG Reagent
                   from 3/17/05 to 5/17/05 Sodium Perborate Monohydra...
(as documented in the Serology Reagent Log Binder)

          Incorrect stock chemical used to prepare LMG Reagent
       ...
Expired stock chemical used to prepare LMG Reagent




                                                                   ...
Expired stock chemical used to prepare LMG Reagent
         From the SWIFS Environmental Health and Safety Program v2.0, C...
Expired stock chemical used to prepare LMG Reagent


From the ASCLD-LAB Manual, 2005…




                                ...
In an impromptu Serology Lab meeting on 01.27.2009 (following an internal
audit that “discovered” the log of the expired c...
Mallinckrodt Baker (formerly J.T. Baker) documentation explaining
               “Use-before date” and “Retest date”


Fro...
Mallinckrodt Baker (formerly J.T. Baker) documentation explaining
                   “Use-before date” and “Retest date”

...
Expired stock chemical used to prepare LMG Reagent




This is a memo left inside the Reagent Logbook to explain the use o...
Expired stock chemical α–Naphthyl Acid Phosphate
        used by serologists to prepare the Brentamine Reagent




       ...
Expired stock chemical α–Naphthyl Acid Phosphate
              used by serologists to prepare the Brentamine Reagent

    ...
Sigma-Aldrich Product Dating Information




www.sigmaaldrich.com/etc/medialib/docs/Sigma-Aldrich/General_Information/prod...
Expired stock chemical Fast Blue B Salt
     used to prepare the Brentamine Reagent




                                  ...
Expired stock chemical Fast Blue B Salt
                        used to prepare the Brentamine Reagent
                   ...
Sigma-Aldrich Product Dating Information
                                        (again)




www.sigmaaldrich.com/etc/medi...
Management was aware of potential quality assurance issues
From the Reagent Log Notebook (B&W photocopy)…

               ...
Management was aware of potential quality assurance issues
From the Reagent Log Notebook (B&W photocopy)…

               ...
Incorrect and Expired stock chemicals used to prepare
                LMG Reagent (used for testing of blood)

From the SW...
(as documented in the Serology Reagent Log Binder)

      Expired stock chemical used to prepare LMG Reagent
             ...
Expired stock chemical used to prepare LMG Reagent




                                                                   ...
FBU analysts risk committing perjury because SWIFS
                does not use reliable principles and methods

From SWIF...
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Unfounded why 07.10.2010

  1. 1. Unfounded Why? A Review of Protocol and Practice Vulnerabilities in a Dallas County Crime Lab The information presented herein was obtained by Public Information Act (Open Records) requests, reliable internet sources, and documentation from forensic biologists from within the lab itself. Click to advance
  2. 2. The Southwestern Institute of Forensic Sciences (aka SWIFS or The Dallas County Crime Lab) The Dallas County Southwestern Institute of Forensic Sciences Crime Laboratory (SWIFS) is an independent, fee-for-services laboratory, and is a division of The Dallas County Southwestern Institute of Forensic Sciences (the other division is the Office of the Medical Examiner.) The Laboratory was established by the Dallas County Commissioners Court in a joint effort with the University of Texas Southwestern Medical Center (UTSWMC). The laboratory, located at 5230 Medical Center Drive, provides services primarily in the Dallas County area of Texas. The Laboratory provides services in the disciplines of Controlled Substances, Toxicology, Biology, Firearms/Toolmarks and Trace Evidence. The laboratory has a staff of approximately fifty (50) testifying analysts and fifteen (15) support staff. Laboratory Director and Chief Medical Examiner, Jeffrey J. Barnard, M.D. reports to the Dallas County Commissioners Court and the Chair of the Pathology Department of UTSWMC. Chief of Physical Evidence, Tim Sliter, Ph.D., and Deputy Chief of Physical Evidence, Stacy McDonald, Ph.D., are the Management responsible for overseeing the personnel, security, proper analysis, and storage of all incoming evidence into the Forensic Biology Unit (FBU). Approximately 16 FBU analysts screen crime scene related evidence for blood, semen, and DNA. “The Management” Dr. Tim Sliter began employment at SWIFS circa early 1998. Dr. Stacy McDonald began employment at SWIFS circa late 2003. Click to advance
  3. 3. SWIFS’s Management Violations 1. Good Laboratory (Scientific) Practices – use of expired chemicals; general uncleanliness; questionable ethics. 2. SWIFS Institute Policies – altered SOP; altered documentation; unsecured case files; questionable ethics; biased analysis. 3. ASCLD/LAB Accreditation Policies – altered SOP; unsecured case files; countless others. 4. Dallas County Code – employee 3- ,6-, and 12-month Performance Reviews neglected; questionable ethics. 5. Texas Law (potentially) – Document forgery; uploading of “unknown DNA profiles” generated from forensic case work into SDIS which could actually be lab employee DNA profiles (as a result of inadvertent contamination). 6. Federal Law (potentially) – Document forgery; uploading of “unknown DNA profiles” generated from case work into CODIS which could actually be lab employee DNA profiles (as a result of inadvertent contamination). Failure to recognize and correct these violations is collectively a result of poor and unprofessional management (including lying), untrained analysts, lack of adequate internal audit procedures and reporting, and incomplete and inefficient external audits by ASCLD-LAB Accreditation Officials. Click to advance
  4. 4. Ironically, these plaques are found in numerous locations throughout SWIFS. Click to advance
  5. 5. Strangely, this is the extent of information available for SWIFS’s forensic services to the public. Further information requires a phone call. Click to advance
  6. 6. SWIFS Organizational Chart Dr. Jeffrey Barnard Director/ Chief Medical Examiner Cathy Self Forensics Operations Karen Young Quality Manager Timothy Sliter, Ph.D. Chief of Physical Evidence/ DNA Technical Leader Stacy McDonald, Ph.D. Deputy Chief of Physical Evidence/ Acting Forensic Biology Supervisor 2 Analysts Forensic Biologist III 14 Analysts Forensic Biologist II (as of 02.01.2009) Click to advance
  7. 7. SWIFS Personnel Dr. Jeffrey Barnard Director/ Chief Medical Examiner Cathy Self Forensics Operations Karen Young Quality Manager Timothy Sliter, Ph.D. Chief of Physical Evidence/ DNA Technical Leader Stacy McDonald, Ph.D. Deputy Chief of Physical Evidence/ Acting Forensic Biology Supervisor 2 Analysts Forensic Biologist III (1 trainee - ) 14 Analysts Forensic Biologist II (5 trainees - ) (as of 02.01.2009) UNITS: Forensic Biology Unit (Serology and DNA) Firearms and Toolmarks Trace Evidence Toxicology Controlled Substances Blood Alcohol Medical Examiners Field Agents (Death Investigators) Click to advance
  8. 8. FBU analysts risk committing perjury because SWIFS does not use reliable principles and methods Summary of Functions: Provides basic oversight of routine Laboratory operations; reviews and approves final reports; testifies to work of others as supervising/senior scientist; provides advanced instrumental and procedural assistance to the Laboratory; interfaces with submitters and the judicial system to resolve routine sample submission, analysis, and interpretation issues; leads new employee training; performs the duties of a laboratory analyst. Click to advance
  9. 9. FBU analysts risk committing perjury because SWIFS does not use reliable principles and methods Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), is a United States Supreme Court case in which the Court held that it was a violation of the Sixth Amendment right of confrontation for a prosecutor to submit a chemical drug test report without the testimony of the scientist. While the court ruled that the then-common practice of submitting these reports without testimony was unconstitutional, it also held that so called "notice-and-demand" statutes are constitutional. A state would not violate the Constitution through a "notice-and-demand" statute by both putting the defendant on notice that the prosecution would submit a chemical drug test report without the testimony of the scientist and also giving the defendant sufficient time to raise an objection. Federal Rules of Evidence 702, an expert is a person with “scientific, technical, or other specialized knowledge" who can "assist the trier of fact,” which is typically a jury. A qualified expert may testify “in the form of an opinion or otherwise” so long as: “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” Exonerations in the United States 1989 Through 2003 S.R. GROSS, K. JACOBY, D.J. MATHESON, N. MONTGOMERY and S. PATIL THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 95, No. 2 (2005) Northwestern University, School of Law “Overall, we found 340 exonerations… …In five of the exonerations that we have studied there are reports of perjury by police officers. In an additional twenty-four we have similar information on perjury by forensic scientists testifying for the government...” Click to advance
  10. 10. FBU analysts risk Expert Witness Malpractice lawsuits because SWIFS does not use reliable principles and methods LLMD of Michigan, Inc. v. Jackson-Cross Co, 740 A.2d 186 (Pa. 1999) – The Pennsylvania Supreme Court found that witness immunity did not bar professional malpractice suits when the allegations of negligence were not premised on the substance of expert’s testimony but were premised on the expert’s negligent preparation in reaching conclusions offered at trial, or on the expert’s use of a faulty methodology. Witness immunity should not protect expert witness who do not “render services to the degree of care, skill, and proficiency commonly exercised by the ordinarily skillful, careful and prudent members of their profession.” Murphy v. A.A. Mathews, 841 S.W.2d 671 (Mo. 1992) - The Missouri Supreme Court held that privately retained professionals who negligently provide litigation-related support services should not be covered by witness immunity. That protection should only cover defamation suits and retaliatory actions against adverse witnesses, the court said. (Murphy v. A.A. Mathews, 841 S.W.2d 671.) Levine v. Wiss & Co., 97 N.J. 242, 478 A.2d 397 (1984) - The court has held that even a court-appointed expert is not immune from liability for deviating from the applicable accepted professional standards. the standard of reasonable care used for most professionals was applicable. Mattco Forge Inc. v. Arthur Young & Co., 5 Cal. App. 4th 392, 6 Cal.Rptr.2d 781 (Ct. App. 1992) - The court ruled in that applying the [immunity] privilege “...does not encourage witnesses to testify truthfully; indeed, by shielding a negligent expert witness from liability, it has the opposite effect.” Marrogi v. Howard, 805 So.2d 1118, 1133 (La. 2002) - “With no sanction for incompetent preparation…an expert witness is free to prepare and testify without the regard to the accuracy of his data or opinion. We do not see how the freedom to testify negligently will result in more truthful expert testimony. Without some overarching purpose, it would be illogical, if not unconscionable, to shield a professional, who is otherwise held to the standards and duties of his or her profession, from liability for his or her malpractice simply because a party to a judicial proceeding has engaged that professional to provide services in relation to the judicial proceeding and that professional testifies by affidavit or deposition.” Click to advance
  11. 11. The National Academy of Sciences, February 2009 “I am troubled by the report’s general finding that far too many forensic disciplines lack the standards necessary to ensure their scientific reliability in court,” said Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Judiciary Committee. http://www.nap.edu/catalog.php?record_id=12589 Click to advance
  12. 12. Texas Law Requires Accreditation for Forensic Labs American Society of Crime Lab Directors-Laboratory Accreditation Board ASCLD-LAB http://www.txdps.state.tx.us/criminal_law_enforcement/crime_laboratory/clabaccreditation.htm Click to advance
  13. 13. Oversight of crime-lab staff has often been lax By Ruth Teichroeb, Seattle Post – Intelligencer Reporter July 23, 2004 ... Experts say reforms needed. Some critics believe a host of reforms are needed, including weeding out incompetent or dishonest crime lab employees, and requiring more rigorous outside reviews. Washington's [State Patrol] crime labs are inspected once every five years to retain voluntary accreditation. During the last review, in September 1999, all of the labs initially fell short of meeting key standards, records show. Inspectors cited problems ranging from proficiency tests that weren't up to date to an unlocked evidence freezer. Those problems were soon corrected. Said [Barry] Logan [crime lab director]: "They didn't come up with anything that they felt was a problem with the quality of the work." Failing to meet voluntary standards, however, is a red flag because accreditation is done by former crime lab insiders who set the bar low, experts say. "It's an old boys' network," said William C. Thompson, a criminology and law professor at the University of California-Irvine. "It's the absolute bare bones that's needed to run a lab. It isn't the best scientific work that can be done." … What's really needed is more rigorous science, said Edward Blake, a California forensic scientist whose work has helped free dozens of wrongly convicted prisoners. "This is an operation like 'I'm OK, you're OK,' " Blake said. "The labs have manufactured credentials for themselves," said Blake, who won't accredit his California lab. "If you have people who are willing to manufacture credentials, what else are they making up?“ http://www.seattlepi.com/local/183203_crimelab23.html Click to advance
  14. 14. ASCLD-LAB Accreditation External Audit is required every 5 years From the ASCLD-LAB Inspection Report, SWIFS Inspection Feb 26-29, 2008, Issued 09.13.2008… The Crime Laboratory Accreditation Program of the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB), is a voluntary program in which any crime laboratory may participate to demonstrate that its management, operations, personnel, procedures, equipment, physical plant, security, and health and safety procedures meet established standards. The program is managed by a professional staff under the direction of the Board of Directors, elected by the Delegate Assembly, to which it is responsible. The Delegate Assembly is composed of the directors of all accredited laboratories and laboratory systems. The ASCLD/LAB Bylaws (Appendix 7) govern the authority and responsibilities of the Board, the Delegate Assembly and the staff. Accreditation is a part of a laboratory's quality assurance program which should also include proficiency testing, continuing education, and other programs to help the laboratory give better overall service to the criminal justice system. Accreditation is granted for a period of five years provided that a laboratory continues to meet ASCLD/LAB standards, including completion of the Annual Accreditation Audit Report and participation in prescribed proficiency testing programs. To maintain accreditation, a laboratory must submit a new application for accreditation every fifth year, and undergo another on-site inspection using the version of the accreditation manual which is in effect at the time of the application. SWIFS was ASCLD-LAB accredited in March 2003, Texas Department of Public Safety in September 2003, Re-accredited by ASCLD-LAB in March 2008. Click to advance
  15. 15. ASCLD-LAB Accreditation External Audit is required every 5 years Inspectors used only 4 days to assess if SWIFS’s Standard Operating Procedures (of 5 Units) were “scientifically sound” and forensic scientists were following policy and procedures. From the ASCLD-LAB Inspection Report, SWIFS Inspection Feb 26-29, 2008, Issued 09.13.2008… This is a report of the ASCLD/LAB accreditation inspection of the Dallas County Southwestern Institute of Forensic Sciences. The initial inspection was conducted on February 26-29, 2008. During the period of April 10-August 13, the inspection team reviewed documentation which was provided by the laboratory concerning compliance with criteria for which the laboratory was found to not be fully compliant during the initial inspection. The ASCLD/LAB inspection team consisted of the following members: Richard Frank, Staff Inspector, ASCLD/LAB, Towson, MD Nita Joyce Bolz, Florida Department of Law Enforcement, Pensacola, FL Jana Champion, Wisconsin Department of Justice, Milwaukee, WI Meghan Clement, Laboratory Corporation of America Holdings, Research Triangle Park, NC David H. Eagerton, Ph.D., South Carolina Law Enforcement Division, Columbia, SC Joseph Fabiny, Santa Clara County District Attorney’s Laboratory, San Jose, CA Carl Sobieralski, Indiana State Police, Indianapolis, IN Jodine Zane, Baltimore County Police Department, Towson, MD The inspection was performed using the principles, standards and criteria established in the 2005 version of the ASCLD/LAB Accreditation Manual and version 6.0 of the FBI “Quality Assurance Standards for Forensic DNA Testing Laboratories and Convicted Offender DNA Databasing Laboratories.” Click to advance
  16. 16. ASCLD-LAB Accreditation External Audit is required every 5 years Inspectors used only 4 days to assess if SWIFS’s Standard Operating Procedures (of 5 Units) were “scientifically sound” and forensic scientists were following policy and procedures. Institute Code of Ethics v1.0 5 pages Institute Quality Management Program Quality Manual v2.3 53 pages Responsibilities of the ASCLD-LAB Auditors: Institute Facility Security Manual v2.0 31 pages Environmental Health and Safety Program v2.0 58 pages Review approximately 2339 pages of Physical Evidence Section Administrative Manual v2.2 44 pages technically detailed manuals and procedures for Procedures for Housekeeping Evidence Registration 13 pages accuracy and correctness. FBU (DNA and Serology) Quality Manual v1.2 17 pages FBU Serology Training Guide v1.1 13 pages FBU Serology Procedures Manual v1.0 87 pages Assess building and laboratory layouts for FBU Equipment Maintenance and Calibration Program v1.4 32 pages safety, storage, and security of evidence. FBU Procedures for Laboratory Maintenance v2.2 11 pages FBU STR Training Program v2.0 24 pages FBU Procedures for Multiplex STR Analysis v1.1 401 pages Interview and witness approximately 50 Trace Evidence Training Manual v2.0 143 pages analysts working in the laboratory for Trace Evidence Procedures Collection v2.3 330 pages understanding and adherence to protocols and compliance to the Quality Assurance Program. Firearms and Toolmarks Procedures Manual v2.2 130 pages Firearms and Toolmarks Training Manual v1.1 271 pages Firearms and Toolmarks Housekeeping Manual v1.1 11 pages Confirm the educational backgrounds for all Forensic Chemistry Administrative Manual v2.0 40 pages analysts meet requirements of position. Controlled Substances Procedures Manual v2.2 149 pages Controlled Substances Resources Manual v2.0 61 pages Review large number of “random” case files for Controlled Substances Training Manual v2.1 26 pages documentation compliance. Toxicology Procedures Manual v2.2 262 pages Toxicology Training Manual v2.0 56 pages Toxicology Resources Documents v2.0 71 pages Click to advance
  17. 17. ASCLD-LAB Accreditation External Audit is required every 5 years Accreditation and Expert Witness Testimony: The Wizard of Oz Argument “Pay no attention to that man behind the curtain. Go - before I lose my temper! The Great and Powerful Oz has spoken!” -L. Frank Baum, The Wonderful Wizard of Oz Click to advance
  18. 18. ASCLD-LAB Accreditation External Audit is required every 5 years Accreditation and Expert Witness Testimony: The Jedi Mind Trick Argument Stormtrooper: Let me see your identification. Obi-Wan: [with a small wave of his hand] You don't need to see his identification. Stormtrooper: We don't need to see his identification. Obi-Wan: These aren't the droids you're looking for. Stormtrooper: These aren't the droids we're looking for. Obi-Wan: He can go about his business. Stormtrooper: You can go about your business. -George Lucas, Star Wars Click to advance
  19. 19. ASCLD-LAB Accreditation External Audit is required every 5 years Accreditation and Expert Witness Testimony: Genetic Fallacy - When the reliability of testimony is based on its source rather than by the evidence available for it. “A Court’s emphasis on the qualifications of expert witnesses is very different from standards of science, in which ad hominem considerations are minimized. Scientists are trained to look at the strength of the data, not the credentials of the research.” - Amici Brief of New England Journal of Medicine and Marcia Angell, Gen. Elec.v. Joiner, 522 US 136 (1997) Click to advance
  20. 20. SWIFS Inadequate and Incomplete Annual Audits From the American Society of Crime Laboratory Directors - Laboratory Accreditation Board Manual (2005)… … Annual Accreditation Audit Report On or about the laboratory’s accreditation anniversary, directors of accredited laboratories are required to submit to the ASCLD/LAB an Annual Accreditation Audit Report (Appendix 6) based on a self-evaluation of the laboratory's status with respect to all criteria during the previous calendar year. Whenever a laboratory finds that an essential criterion should be scored “NO” on the report, a statement must be attached to the report which explains the reason for the score and steps taken to bring the laboratory into compliance with the standard. Separate statements are required for any significant changes made in the laboratory during the previous year or for significant changes that have not been reported since the laboratory was accredited. Changes which must be reported are listed on the report form (Appendix 6). … From the FBI Quality Assurance Standards for Forensic DNA Testing Laboratories, July 1, 2009… … 15. AUDITS STANDARD 15.1 The laboratory shall be audited annually in accordance with these standards. The annual audits shall occur every calendar year and shall be at least 6 months and no more than 18 months apart. STANDARD 15.2 At least once every two years, an external audit shall be conducted by an audit team comprised of qualified auditors from a second agency(ies) and having at least one team member who is or has been previously qualified in the laboratory’s current DNA technologies and platform. … Click to advance
  21. 21. SWIFS Inadequate and Incomplete Annual Audits From “Quality Issues in Forensic Laboratory Science” (2004).ppt - Authored by Dr. Tim Sliter… …except when Management performs the audits themselves (internal audits). Click to advance
  22. 22. SWIFS Inadequate and Incomplete Annual Audits Internal and External Forensic Biology Unit (FBU) Laboratory Audits* Dates of Audit Auditors (Signatures) Findings (paraphrased) 01/28/2002 External Lorna Beasley -Lack of procedures for calibration/maintenance of equipment Manual Valadez, Jr. -Some equipment not calibrated/maintained (not logged); monitoring is lax -LIMS system would be beneficial; management states it is investigating 08/18-21/2002 External George Herrin, Ph.D. -One analyst lacks adequate educational background Katherine Welch, M.S. -Cleaning/maintenance procedures for equipment not followed -Some equipment not calibrated/maintained (not logged) -Criteria of Proficiency Test evaluations not established -Proficiency test errors and corrective actions not recorded -No prior audit information available 12/9-12/2003 Internal Timothy Sliter, Ph.D. -No discrepancies of non-compliance reported Evelyn Ridgley, Ph.D. Jim Dempsey 12/6-7/2004 External Lorna Beasley -Lack of procedures for calibration/maintenance of equipment R. Greg Hilbig -Some equipment not calibrated/maintained (not logged) -DNA procedures not checked against NIST standard reference material 12/5-7/2005 Internal Jim Dempsey -No discrepancies of non-compliance reported Timothy Sliter, Ph.D. Jack Trout 07/24-25/2006 External Mary Reed -No written procedures for taking and maintaining case notes; analysts not following Marci Wease -Lab does not have (or follow) EH&S Program *Documents received via PIA-Open Records request **Quality Manager is responsible for organizing the audit External audits always find lab (accreditation) standards not being followed, often the same standards. Internal audits never find any discrepancies. continued on next slide… Click to advance
  23. 23. SWIFS Inadequate and Incomplete Annual Audits Continued from previous slide… Internal and External Forensic Biology Unit (FBU) Laboratory Audits* Dates of Audit Auditors (Signatures) Findings (paraphrased) 12/20-31/2007 Internal Timothy Sliter, Ph.D. -No discrepancies of non-compliance reported Stacy McDonald, Ph.D. no Quality Manager Signature** 02/26-29/2008 External Meghan Clement -Quality Management Manuals contained obsolete procedure, lacked current procedures Jodine Zane -Lack of procedures for calibration/maintenance of equipment -Some equipment not calibrated/maintained (not logged) -No written procedure for releasing reports 06/23-24/2008 External Lucy Houck -Lack of documentation for procedure validation studies Katherine Butler -Lack of written procedures for some tests -Written procedures for documenting reagent preparation not available or followed -Written procedures for case work notations not available or followed -Administrative and technical reviews of case reports not followed 02/26-29/2008 External ASCLD Accreditation -Personnel evaluations not given (09/13/2008) -Proficiency test using re-examination or blind techniques not done -Firearm technician lacks a baccalaureate degree -Lack of procedures for calibration/maintenance of equipment -Other issues for Firearms Unit, Controlled Substances Unit, Trace Evidence Unit 01/12-14/2009 Internal Documents not received from PIA-Open Records request *Documents received via PIA-Open Records request **Quality Manager is responsible for organizing the audit External audits always find lab (accreditation) standards not being followed, often the same standards. Internal audits never find any discrepancies. Click to advance
  24. 24. SWIFS Inadequate and Incomplete Annual Audits The ASCLD/LAB Inspection Report and the Quality Assurance Audit were done on the same days (02.26-28.2008)… …but conflicting findings were reported by auditors in separate reports. From the ASCLD/LAB Inspection Report (re-accreditation), 09.13.2008 (inspection 02.26.2008)… Yes No N/A However… From the Quality Assurance Audit for Forensic DNA and Convicted Offender DNA Databasing Labs, 02.26.2008… Note: A hardcopy of the obsolete Quality Management Program of the Forensic Biology Unit v1.1 was given to trainees on the first day of employment, March 2008. Click to advance
  25. 25. SWIFS Inadequate and Incomplete Annual Audits More DPS labs flawed: DNA testing woes across state threaten thousands of cases By Steve McVicker, Houston Chronicle, January 13, 2006 … The audits also turned up significant problems in Abilene, Waco, Lubbock, Garland and at two labs in Austin. The problems range from bad methodology, storage and record-keeping to severe backlogs that could mean some trials have to go forward before evidence testing is complete. [Forensic consultant] Rudin also questioned the quality of the auditing. She pointed to an August 2003 recommendation by audit team captain C. Glen Johnson for lab personnel to use data from another DPS facility to validate work in the El Paso lab. Johnson did not respond to a request for comment. DPS officials e-mailed that they stood by that system of inspection. "That upset me more than anything I read," Rudin said. "And it was from an inspector, which tells me that the inspectors have no clue. The whole point (of the audits) is that you're supposed to do them in your own lab. That's what internal validation is. And that doesn't mean within a laboratory system. It means within a physical plant." Regardless of the severity or quantity of problems found by the inspectors, Rudin said, almost every audit report concludes that the lab in question "is producing quality work." "It's the same language every time," Rudin said. " `It's fine. They're doing a service. They're doing quality work.' And on every single one of them it was so gratuitous it stopped having any meaning." [Chairman of the Texas Criminal Defense Lawyers Association's crime lab strike force Stanley Schneider] Schneider's overall assessment was more pointed. "If crime labs were in the private sector, they'd all be shut down," the Houston attorney said. "Business would not tolerate this kind of functioning." http://www.chron.com/disp/story.mpl/topstory/2470016.html Click to advance
  26. 26. A response to my anonymous query sent to several forensic lab managers throughout the U.S. regarding mismanagement, protocol non-compliance, and Quality Assurance concerns Subject: Management misconduct and serology SOP non-compliance Date: Wed, 31 Dec 2008 10:47:58 -0700 From: NameWitheld@xxxx.gov To: ReplyConcernedForensicBiologist@live.com Forwarded to me by my Lab Director; My suggestion, KEEP YOUR MOUTH SHUT, and do nothing more until you and your co-trainee's are off of your probationary period. Otherwise, YOU WILL GET FIRED (I have seen it happen in other labs), and you will have NO recourse under FLSA employment rules. Once you are off of probation, then you can attempt to raise hell about your perceived laboratory QA issues. In the end though, you are a subordinate employee in the system. You may never get a resolution that you find tolerable and may have to just steal their training and leave for another lab. It may take a QA catastrophe to get anything changed, i.e. Houston Police, Detroit Police, etc. But then, they both completely shut down and dismissed or reassigned all of their employees. Be careful what you ask for!! Honestly though, serology is not an area where a catastrophe is likely to ever truly occur. It may be a crappy serology SOP and poorly applied, but it is likely to only be in the DNA analysis portion of the Biology unit where a catastrophe would actually be perceived to be just that; and you have not mentioned issues in that area. Good luck, NameWitheld@xxxx.gov Click to advance
  27. 27. www.thejusticeproject.org 2008 There is no oversight board to assure that SWIFS’s Managers and Supervisors are performing their jobs objectively, scientifically, professionally, ethically, and fairly towards the analysts that perform the work. Lab analysts (and trainees) are blamed for all errors. There is no accountability for the actions of Managers and Supervisors. Click to advance
  28. 28. “Quality Issues in Forensic Laboratory Science” (2004).ppt Authored by Dr. Tim Sliter While acknowledging the criticisms of the forensic labs of The Department of Public Safety and Houston Police Department, the Management at SWIFS failed to recognize or address the problems within their own labs and ineptitude among their own analysts. Click to advance
  29. 29. Management Controls Communications EXCLUSIVE: Policing the crime labs: No government bodies regulate forensic labs North County Times, Teri Figueroa, January 30, 2010 … Ralph Keaton is the executive director of the accrediting organization, and he said labs that get its approval are held to a very high standard, and must have checks and balances in place. And, he said, labs with the ASCLD/LAB accreditation are expected to take immediate corrective action when mistakes are uncovered. "It is a matter of public trust," Keaton said. "The labs really are the final say in a lot of decision-making in the courtroom. ... The accused and the accusers really are at the mercy of good science.“ … http://www.nctimes.com/news/local/sdcounty/article_8a62334c-c3a1-539b-935b-c41bbb1e5217.html Click to advance
  30. 30. Management Controls Communications Request For Reviews (RFR) and Corrective Action Requests (CAR) From the SWIFS Quality Management Program Quality Manual v2.3… 17. Self-Critical Review and Corrective Action 17.1.Self-critical review of laboratory procedures, processes, and results is a fundamental and routine expectation of a scientific laboratory and an integral component in maintaining consistency with best practices in forensic sciences. … 17.1.3. Other issues identified through self-critical review may not be addressed in routine practices, policies, and procedures; action on these issues may be initiated by submitting a Request for Review (RFR) to the Executive Committee. 17.1.3.1. Every isolated variance from policy and procedure does not require an RFR. 17.1.3.2. Isolated administrative errors do not usually require an RFR. … 17.2.6. Executive Committee determines the appropriate course of action such as requesting further information or action, accepting resolution proposed or conducted as part of the RFR, initiating the Corrective Action Response (CAR) process, referring the issue to a more appropriate process such as Human Resources, EHS Manager, Security Manager, determining that no action is necessary, etc. 17.3. Corrective Action Request (CAR) 17.3.1. When an issue raised in an RFR is determined by the Executive Committee to be substantive, it will be investigated, tracked, and resolved through the CAR process. 17.3.1.1. An issue is defined as being “substantive” if it has the potential to significantly impact the quality of the work of the laboratory – even if for a short time. 17.3.1.2. Determination that an issue is “substantive” should consider the significance, substance, and time-span of the issue. Click to advance
  31. 31. Management Controls Communications Institute-wide emails or memos addressing problems or incidents should happen, but rarely does. Management Verbal complaints are mostly forgotten or ignored. verbal X X X analyst analyst analyst Per the SWIFS Quality Management Program Quality Manual v2.3… 5.1. Employees. Employees have the following responsibilities: … 5.1.3. To immediately bring to the attention of their Supervisor, Section Chief, or Director any situation which potentially compromises the integrity of work performed or reported by Institute personnel; Click to advance
  32. 32. Management Controls Communications Verbal directives are relayed from Management to analyst to other analysts, leading to protocol drift (i.e. different analysts following different undocumented Management Memo of incident protocols; loss of protocol logic and rational; (not RFR or CAR) incorporation of faulty science.) email Addressed to verbal Inanimate Objects: -Case File -Reagent Log Notebook -Employee’s Records analyst analyst Memo of incident analyst (without Management verbal verbal acknowledgement) Per the SWIFS Quality Management Program Quality Manual v2.3… 5.1. Employees. Employees have the following responsibilities: … 5.1.3. To immediately bring to the attention of their Supervisor, Section Chief, or Director any situation which potentially compromises the integrity of work performed or reported by Institute personnel; Click to advance
  33. 33. Management Controls Communications ASCLD/LAB, Dallas County DA, Dept. of Public Safety Management Report Of Misconduct analyst analyst analyst Per the SWIFS Quality Management Program Quality Manual v2.3… 17.4.4.2. In the event that the Director determines that the quality concern involves serious negligence or misconduct by staff or subcontractors that substantially affects the integrity of the scientific analyses performed and reported by the Institute, then the Director will report the concern to the Texas Department of Public Safety, the Dallas County District Attorney’s Office, and other agencies as appropriate. … 17.5.3. The Quality Manager oversees reporting of RFR and/or CAR issues to ASCLD/LAB and/or Texas DPS as appropriate. Click to advance
  34. 34. Management Controls Communications U.S. Dept. of Justice (DOJ) ASCLD/LAB, National Institute of Justice (NIJ) Dallas County DA, Grants and Funding Dept. of Public Safety ...means continued X funding for the lab. Management No employee, Report means no Report… X Of Misconduct analyst analyst X analyst Per the SWIFS Quality Management Program Quality Manual v2.3… 17.4.4.2. In the event that the Director determines that the quality concern involves serious negligence or misconduct by staff or subcontractors that substantially affects the integrity of the scientific analyses performed and reported by the Institute, then the Director will report the concern to the Texas Department of Public Safety, the Dallas County District Attorney’s Office, and other agencies as appropriate. … 17.5.3. The Quality Manager oversees reporting of RFR and/or CAR issues to ASCLD/LAB and/or Texas DPS as appropriate. Click to advance
  35. 35. Management Controls Communications Management Propagation of protocol drift, Repetition of errors analyst New analyst analyst Per the Dallas County Code... Chapter 86 Personnel and Employment ARTICLE VIII. Grievances Procedures Sec. 86-1002. Eligibility. Any category C or D regular, full-time civil service employee may process an employment grievance. Any category C or D probationary civil service employee may file a grievance on defined items except those relating to his/her performance rating or dismissal. (Admin. Policy Manual, § A(12.01); Ord. No. 2001-1954, 10-9-2001) Click to advance
  36. 36. Management Controls Communications At SWIFS: Not done consistently… Not done correctly… Not known or available to current employees… Not readily available to the public… (i.e. SWIFS is not transparent.) “Quality Issues in Forensic Laboratory Science” (2004).ppt - Dr. Tim Sliter Click to advance
  37. 37. Management Controls Communications From a Public Information Act – Open Records Request, 06.22.2009… …continued on next page Click to advance
  38. 38. SWIFS Annual Accreditation Internal Audit Report …continued from previous page These documents are not readily available to the public. These documents are also unavailable to current SWIFS employees. Not all documents requested were received. Click to advance
  39. 39. Management Controls Communications The lack of communication between the Supervisors and the analysts regarding audit findings or laboratory RFR/CAR issues leaves the analysts unaware and uninformed during Expert Witness testimony. Persuasive Precedent… GIGLIO v. UNITED STATES, 405 U.S. 150 (1972) CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 70-29. Argued October 12, 1971 Decided February 24, 1972 Petitioner filed a motion for a new trial on the basis of newly discovered evidence contending that the Government failed to disclose an alleged promise of leniency made to its key witness in return for his testimony. At a hearing on this motion, the Assistant United States Attorney who presented the case to the grand jury admitted that he promised the witness that he would not be prosecuted if he testified before the grand jury and at trial. The Assistant who tried the case was unaware of the promise. Held: Neither the Assistant's lack of authority nor his failure to inform his superiors and associates is controlling, and the prosecution's duty to present all material evidence to the jury was not fulfilled and constitutes a violation of due process requiring a new trial. Pp. 153-155. Reversed and remanded. Click to advance
  40. 40. Management Controls Communications “Quality Issues in Forensic Laboratory Science” (2004).ppt - Dr. Tim Sliter Public reports of forensic lab non-compliance and errors could lead to criminal proceeding embarrassment, legal threats of expert witness malpractice, or loss of Federal grant money… Click to advance
  41. 41. From the NIJ FY0X Forensic DNA Backlog Reduction Program CFDA No. 16.741 (This Program includes the DNA Capacity Enhancement Program) Overview The National Institute of Justice (NIJ) is the research, development, and evaluation agency of the U.S. Department of Justice (DOJ) and a component of the Office of Justice Programs (OJP). NIJ provides objective, independent, evidence-based knowledge and tools to enhance the administration of justice and public safety. NIJ solicits applications to inform its search for the knowledge and tools to guide policy and practice. The goal of NIJ's FY0X Forensic DNA Backlog Reduction Program is to assist eligible States and units of local government to reduce forensic DNA sample turnaround time, increase the throughput of public DNA laboratories, and reduce DNA forensic casework backlogs. These improvements are critical to preventing future DNA backlogs and to helping the criminal justice system use the full potential of DNA technology. Eligible States and units of local government may request funds to increase the capacity of their existing crime laboratories that conduct DNA analysis in order to analyze DNA samples more efficiently and cost effectively. Eligible applicants also may request funds to handle, screen, and analyze backlogged forensic DNA casework samples. … 11. Proof of DNA Laboratory Accreditation (required): Acceptable types of documentation of current accreditation include: an electronic (scanned) copy of the current accreditation certificate(s), a digital photograph of the current accreditation certificate(s), or a letter from the accrediting body that includes the certificate number. Additionally, if the certificate references another document that contains key information on the type or scope of the accreditation, please also provide a copy of that supplemental documentation. http://www.dna.gov/funding/backlog-reduction/ Click to advance
  42. 42. From the NIJ Paul Coverdell Forensic Science Improvement Grants Program CFDA No. 16.742 Overview The Paul Coverdell Forensic Science Improvement Grants Program (the Coverdell program) awards grants to States and units of local government to help improve the quality and timeliness of forensic science and medical examiner services. Among other things, funds may be used to eliminate a backlog in the analysis of forensic evidence and to train and employ forensic laboratory personnel, as needed, to eliminate such a backlog. States may apply for both “base” (formula) and competitive funds. Units of local government may apply for competitive funds. The Coverdell program is authorized by Title I of the Omnibus Safe Streets and Crime Control Act of 1968, Part BB, codified at 42 U.S.C. § 3797j-3797o (the Coverdell law). … The Coverdell law (at 42 U.S.C. § 3797k) requires that, to request a grant, an applicant for the Coverdell funds must submit: … 2. A certification regarding use of generally accepted laboratory practices. Each applicant must submit a certification that any forensic laboratory system, medical examiner’s office, or coroner’s office in the State, including any laboratory operated by a unit of local government within the State, that will receive any portion of the grant amount (whether directly or through subgrant) uses generally accepted laboratory practices and procedures established by accrediting organizations or appropriate certifying bodies. http://www.ojp.usdoj.gov/nij/topics/forensics/nfsia/welcome.htm Click to advance
  43. 43. National Institute of Justice (NIJ) Grants awarded to Dallas County SWIFS by year $822,502 2008-DN-BX-K037 Forensic Casework DNA Backlog Reduction Program Formula Grants $809,929 2007-DN-BX-K106 Forensic Casework DNA Backlog Reduction Program Formula Grants $94,361 2007-CD-BX-0044 Development of an Enhanced Electronic Casework Record System $502,447 2006-DN-BX-K171 DNA Capacity Enhancement Program Formula Grants $210,910 2006-DN-BX-K084 Forensic Casework DNA Backlog Reduction Program Formula Grants $95,000 2006-DN-BX-0037 Paul Coverdell Forensic Science Improvement Grants Program $372,193 2005-DA-BX-K042 DNA Capacity Enhancement Program Formula Grants $288,660 2005-DN-BX-K121 Forensic Casework DNA Backlog Reduction Program Formula Grants $95,000 2005-DN-BX-0016 Paul Coverdell Forensic Science Improvement Grants Program $479,806 2004-DN-BX-K187 DNA Capacity Enhancement Program Formula Grants $80,233 2004-DN-BX-0202 Paul Coverdell Forensic Science Improvement Grants Program $3,851,041 total over 5 years Grant money from other sources? http://www.ojp.usdoj.gov/nij/awards/ Click to advance
  44. 44. New SWIFS Building…Estimated $45 million 112,000-sf, three-story Forensic Sciences building containing ballistics testing facility, trace labs, forensic biology labs, DNA extraction labs, drug analysis labs, breath alcohol and toxicology labs, autopsy labs & morgue as well as offices, administration space, conference facilities, and high-security evidence room. Estimated to be completed by Spring 2009. http://www.mccarthy.com/work/science-technology/dallas-county-forensic-science/ Click to advance
  45. 45. Campbell: Wrongful convictions an expensive proposition May 22, 2008 BY LINDA P. CAMPBELL STAR-TELEGRAM STAFF WRITER … And here's the black and white from the Texas comptroller's office: 45 people have been paid almost $8.5 million since 2001. Under current law, a convicted individual who has been pardoned because of a wrongful conviction or has been declared actually innocent can apply to the Texas comptroller' s office for compensation of $50,000 per year of imprisonment, $100,000 per year if in on a death sentence. (Before last year, it was $25,000 a year, up to $500,000.*) Among the 45 listed by the comptroller' s office -- see the partial list that accompanies this column -- are 19 of the 35 Tulia residents whom Gov. Rick Perry pardoned in 2003 after an undercover agent whose testimony was used against them on drug charges was discredited. Their payments range from $14,500 to more than $106,000. The problem with money is that it can't make up for lost time and the other life disruptions that accompany being wrongly accused, convicted and imprisoned. That's a whole other story. Nor does the compensation that the state has paid account for what taxpayers put in on the front end of those prosecutions or to house prisoners who don't belong there. You can make lots of arguments for improving the system. It's hard to argue against it. COSTLY RECOMPENSE These are the top 10 amounts cited by the Texas comptroller' s office: $1,000,000 -- Larry Charles Fuller, Dallas County: Spent almost 20 years in prison, convicted of a 1981 rape based on the victim's identification. Exonerated through DNA testing in 2007. $608,333 -- John Michael Harvey, Tarrant County: Served almost 13 years of a 40-year sentence, convicted of molesting the 3-year-old daughter of a former girlfriend. Found actually innocent by courts after the girl recanted the accusation, released in 2004. (Fuller and Harvey won't receive half their money until later this year because the law requires payment in two installments.) $500,000 -- Billy Wayne Miller, Dallas County: Served more than 22 years of a life sentence, convicted of 1984 sexual assault. Exonerated through DNA testing in 2006. $452,083 -- Arthur Merle Mumphrey, Montgomery County: Served 18 years, convicted of sexually assaulting a 13-year-old girl at knifepoint in 1986. Exonerated through DNA testing and pardoned in 2006. $435,416 -- Carlos Lavernia, Travis County: Served 17 years of a 99- year sentence, convicted of aggravated sexual abuse largely on the victim's identification. Exonerated through DNA testing in 2000. $429,166 -- Ernest Ray Willis, Pecos County: Served 17 years on Death Row, convicted of deliberately setting a fire in which two women died. A federal judge ruled that the state withheld evidence and improperly drugged Willis and that his lawyer was ineffective. A new investigation found the fire wasn't arson. Charges were dropped. $391,666 -- Victor Larue Thomas, Ellis County: Served more than 15 years, convicted of raping a store clerk at gunpoint in 1985. Exonerated through DNA testing in 2001. $387,499 -- Wiley Edward Fountain, Dallas County: Served 15 years, convicted of aggravated sexual assault in 1986. Exonerated through DNA testing in 2002. (CNN reported recently that he had become homeless and could not be found.) $385,416 -- David Shawn Pope, Dallas County: Served 15 years of a 45- year sentence, convicted of raping a Garland woman at knifepoint in 1985. Exonerated through DNA testing in 2001. $374,999 -- Calvin Edward Washington, McLennan County: Served almost 15 years of a life sentence, convicted of raping and killing a woman in 1986. Exonerated through DNA testing in 2001. … *The Timothy Cole Act, enacted September 2009, allows for a lump sum payment of $80,000 /year incarceration. Click to advance
  46. 46. The Texas Department of Public Safety (Austin) knew of the internal complaints…yet did nothing. From: Jac.Blake@gmail.com To: LabQA@txdps.state.tx.us Sent: February 12, 2009 7:41 AM Subject: anonymous reporting of forensic lab non-compliance Dear Sirs: If you will please excuse the anonymity, I have some forensic biology related concerns that could be grounds for immediate employment termination should my issues become public. I am seeking advice for a solution to a situation that has become very volatile for several forensic biologists in our lab (including myself) and could ultimately have career-ending and legal ramifications… …analysts are not exactly doing what they say they are doing… From: LabQA@txdps.state.tx.us To: Johnson, Pat Sent: Thursday, February 19, 2009 12:46 PM Subject: FW: anonymous reporting of forensic lab non-compliance I received this email via LabQA. It appears to be an internal complaint, however does not have sufficient information to target specific issues. I do believe that we need to discuss this email. Forrest Davis Quality Assurance Coordinator Texas Department of Public Safety 512.424.2799 Continued on next slide… Click to advance
  47. 47. The Texas Department of Public Safety (Austin) knew of the internal complaints…yet did nothing. From: Jac Blake <jac.blake@gmail.com> To: "Johnson, Pat" <Pat.Johnson@txdps.state.tx.us> Date: Mon, Mar 16, 2009 at 6:19 AM Subject: Re: FW: anonymous reporting of forensic lab non-compliance D. Pat Johnson- You received an anonymous email on 02.19.09 (forwarded from 02.12.09) that expressed concerns of protocol non- compliance in an unnamed Texas Forensic Lab. This is the second part… …The previous email pertains to The Southwestern Institute of Forensic Sciences in Dallas, Texas (aka SWIFS or the Dallas County Crime Lab)… …The Supervisors are: Stacy McDonald, Ph.D. - Acting Serology Lab Supervisor / Deputy Chief of Physical Evidence Tim Sliter, Ph.D. - Chief of Physical Evidence / DNA Technical Leader… From: Johnson, Pat <Pat.Johnson@txdps.state.tx.us> To: Jac Blake <jac.blake@gmail.com> Date: Thu, Mar 26, 2009 at 8:29 AM Subject: RE: non-compliance of Texas lab This is the last correspondence received from Texas DPS (Austin). Mr. Blake, This e-mail is to acknowledge receipt of your information. I have assigned a person here to review your documents, and then we will decide how to proceed. From: Jac Blake <jac.blake@gmail.com> To: "Johnson, Pat" <Pat.Johnson@txdps.state.tx.us> Date: Mon, Mar 30, 2009 at 7:57 AM Subject: Re: non-compliance of Texas lab Hello- Attached is an addendum with more supporting documentation to the memo 031609. Click to advance
  48. 48. The Dallas County District Attorney’s Office knew of the internal complaints…yet did nothing. 03.09.2009 Unscheduled, impromptu meeting between Investigator Jim Hammond of Dallas County District Attorneys Office, Conviction Integrity Unit (DCDAO CIU) and SWIFS Forensic Analyst Trainee., approximately 10:30am-11:45am, at SWIFS… (paraphrasing) …He asked, I acknowledged, that I was frustrated with Management's unwillingness to "step it up", scientifically speaking… …He asked, “analysts not complying with the protocol as written, but rather ‘spirit of the protocol’?” I said this is a problem with ASCLD/LAB Guidelines… …I stated that problems are reported to Supervisors, yet nothing occurs; scientific issues not addressed… …He asked, I told him other serologists were just as concerned. He asked for names, I gave him the name of another (well experienced) trainee… … 12.21-23.2009 State of Texas v. Stanley Ledbetter, No. F08-73084-V, Judicial District Court 292nd, Dallas, Texas. During cross-examination between Prosecutor David Alex and Trainee, David Alex alleges that this conversation was audio recorded by Investigator Jim Hammond without the knowledge of the Trainee… Was this Expert Witness Testimony audio recording disclosed to Criminal Defense Attorneys (as Brady Material)? Click to advance
  49. 49. New problem looms in police lab scandal Jaxon Van Derbeken, San Francisco Chronicle Staff Writer Wednesday, March 24, 2010 In a legal challenge arising out of the San Francisco police lab drug-skimming scandal, a judge will soon determine whether police and prosecutors withheld vital information about the suspected thefts from defendants' attorneys. Judge Anne-Christine Massullo ordered District Attorney Kamala Harris and the Police Department to turn over more than 1,100 pages of documents related to the lab investigation, so she can determine whether they are relevant in the upcoming cocaine-sales trial of Mario Bell. Bell's attorney, Jim Senal, sought the documents and said Tuesday that he'll move to have the case dismissed if the documents show authorities knew of problems with police drug testing but did not reveal them. If Massullo grants the dismissal on the grounds Bell's rights were violated, it could damage prosecutors' prospects in scores of other drug cases that have already gone to trial. Prosecutors have been forced to drop more than 250 cases since Police Chief George Gascón ordered the drug-testing section of the crime lab closed March 9, but have said they hope to refile many of those cases when narcotics evidence can be retested. Because of the prohibition against double jeopardy, however, they cannot refile against a defendant whose trial has already begun. Massullo's ruling on the drug-lab documents is expected as early as Thursday, and will serve as a guide when other defense attorneys make similar requests. Bell's trial is scheduled to begin Monday. The documents concern what police and prosecutors know about the case of Deborah Madden, 60, a 29-year technician at the lab who is suspected of stealing cocaine evidence. Madden, who went on leave in December and retired March 1, has not been charged. Madden tested the substance that Bell is accused of selling and determined it was cocaine, a routine yet critical finding that prosecutors require if they are to bring a drug case to trial. Senal first asked prosecutors and police for the investigation documents in the Madden case March 10, the day after Gascón publicized the drug lab's problems. When prosecutors and police initially resisted, Massullo threatened to dismiss the case. Public Defender Jeff Adachi said his office is awaiting the judge's review of the files. "This could be Pandora's box," Adachi said. "Judge Massullo is taking this very seriously." Even in cases not involving Madden, Adachi said, recent testing by outside labs has shown problems with drug weights as reported by the police lab. The outside labs have shown smaller amounts of drugs in some cases than the initial police testing, he said. In one case, a marijuana sample tested after Madden left the lab weighed 2 grams more by the police measurement than by the outside lab's, Adachi said. A cocaine sample that Madden said weighed half a gram amounted to just one-tenth of a gram by an outside lab's measurement, Adachi said. "I doubt very much that narcotics are disappearing into thin air," he said. "There needs to be an explanation as to what is happening here and why.“ Lt. Lyn Tomioka, spokeswoman for the Police Department, did not comment specifically on the alleged drug weight problems. "We are committed to working with the court and others in fully cooperating to ensure all concerned cases are properly adjudicated," she said. http://articles.sfgate.com/2010-03-24/bay-area/18844986_1_police-drug-testing-police-lab-police-and-prosecutors Click to advance
  50. 50. http://www.fsc.state.tx.us/about.html Click to advance
  51. 51. The Texas Forensic Science Commission (TFSC) knew of the internal complaints…yet did nothing for 2 months. Both The TX DPS (Austin) and TFSC received the same anonymous report and addendum on the same days. After several email correspondences, TFSC finally committed to an investigation… From: Tomlin, Leigh <lmt018@shsu.edu> To: Jac Blake <jac.blake@gmail.com date: Wed, May 20, 2009 at 12:37 PM RE: TFSC Dear anonymous complainant, The Commission was able to conduct a preliminary review of the complaint and attached materials you submitted. It is standard procedure of the Texas Forensic Science Commission to forward complaints to the entities the complaint is against and request a formal response from them on the complaint. The complaint you submitted will be forwarded to SWIFS and also to the accrediting entity ASCLD for a response. At our next meeting, July 24th, 2009, the Commission will review any materials or responses received regarding your complaint. We will be in touch with you on the status of your complaint after that meeting. In the meantime, if you have any questions, please feel free to contact our Commission office. Sincerely, Leigh Tomlin Leigh M. Tomlin Texas Forensic Science Commission Sam Houston State University College of Criminal Justice However… Box 2296 816 17th Street Huntsville, Texas 77341 Phone: 1(888) 296-4232 Fax: 1 (888) 305-2432 Click to advance
  52. 52. The Texas Forensic Science Commission (TFSC) knew of the internal complaints…yet did nothing for 2 months. Note: SWIFS is revealed as the lab under investigation by the TFSC. http://www.fsc.state.tx.us/documents/D_072409MeetingMinutes.pdf Click to advance
  53. 53. The Texas Forensic Science Commission (TFSC) knew of the internal complaints…yet did nothing for 2 months. from: Jac Blake to: Tomlin, Leigh date: Monday, August 03, 2009 10:57 PM subject: responses from SWIFS and ASCLD Hello! I was wondering if there were responses from SWIFS and ASCLD in regards to my report (03.16.09) and addendum (03.30.09)? jac.blake@gmail.com ----------------------------------------------------------------------------------------------------------------------------------- from: Tomlin, Leigh lmt018@shsu.edu to: jac.blake@gmail.com date: Tues, Aug 4, 2009, 9:32 AM subject: RE: responses from SWIFS and ASCLD We have not yet received a written response, but we anticipate one and will forward it to you when it is received. Thanks, Leigh Leigh M. Tomlin Texas Forensic Science Commission …still no response. Click to advance
  54. 54. The Innocence Project of Texas was aware of the problems at SWIFS… To: blackburn@ipotexas.org From: ex-SWIFS employee@sbcglobal.net Date: 07/14/2009 Mr. Jeff Blackburn: In regards to our conversation, I would like to thank you for your invaluable insight into the goals and objectives of The Innocence Project of Texas as they relate to my concerns of potential forensic mismanagement I have witnessed. I would like to officially request The Innocence Project of Texas to initiate an investigation into the serology/DNA forensic lab practices at The Southwestern Institute of Forensic Sciences (SWIFS) of Dallas County. Attached to this email is a file (.pdf) illustrating some of the suspicious scientific practices occurring in the laboratory. Also attached is an internal memo that was presented to the Management on 11.25.08 in regards to the serology lab SOP. As I stated, Management is aware of the long-standing problems but is resistant to change, requiring uninformed analysts in the lab to follow outdated procedures and questionable protocols. It is arguable that Management’s actions demonstrate “conformance to generally accepted professional and scientific standards necessary to earn the full confidence of the public and the criminal justice system” as set forth in the ASCLD/LAB Resolution and Accreditation Guidelines. I appreciate your time and cooperation towards an investigation into this matter. Let me know if I can assist in any way. Thank You! Best Regards, Ex-SWIFS employee Although there were a few phone conversations prior to this letter, there was no follow-up communication. Click to advance
  55. 55. Finally… The TFSC and ASCLD-LAB are currently assessing SWIFS’s response to the complaints. Click to advance
  56. 56. TEXAS FORENSIC SCIENCE COMMISSION – AGENDA October 2nd, 2009 - 9:30 A.M. Omni Mandalay Hotel at Las Colinas 221 E. Las Colinas Blvd. Irving, Texas 75039 D Telephone: (972) 869-5528 Fax: (972) 869-9053 ELE During this meeting, the Commission may consider and take action on the following items. The Commission shall have a morning break and a brief lunch break: … N C CA REVIEW OF ANY COMPLAINT FORMS RECEIVED AND FINAL DECISIONS TO DENY OR REVIEW (Bassett, et.al.) Distribute updated complaint list (Tomlin) Status of case #0915 Review of ASCLD response to #0915 (Eisenberg, Watts) Review of any response from corresponding lab Discussion on next steps for complaint #0915 This would have been the most opportune time to discuss the alleged forensic misconduct in the Dallas Crime Lab as a forum of scientists. Click to advance
  57. 57. A speech to the National Academy of Sciences regarding economic and public policy challenges in forensic science Washington, D.C. June 5, 2007 “If you asked me to go into a crime laboratory and determine what the likelihood is that an erroneous result could come from that lab, I would spend 20-25% of my time looking at the technical procedures and operations. I then would spend the other 75-80% looking at the laboratory’s organizational culture and leadership practices. Errors, misconduct, and instances of incompetence are much more likely to precipitate from a bad culture than from bad technical practices.” - John M. Collins, Jr., DuPage County Crime Laboratory Director, Wheaton, IL., Editor of Crime Lab Report Click to advance
  58. 58. intentionally blank Click to advance
  59. 59. The following examples are an extension of the anonymous Report (03.16.2009) and Addendum (03.30.2009) sent to the Texas Forensic Science Commission (TFSC) and the Texas Department of Public Safety (Austin). Many of these errors would not be discoverable by external auditors assessing from a distance, or from a written inquiry to SWIFS Management. They can only be discovered by witnessing the errors and violations as they occur. These are not EXCEPTIONS TO the rules, but rather EXAMPLES OF the rules at SWIFS. Collectively, these represent the faulty logic, inept management, and overall systemic problems plaguing the Forensic Biology Unit at SWIFS. Click to advance
  60. 60. Incorrect and Expired stock chemicals used to prepare Serology Reagents Laboratory “critical reagents” are prepared by one analyst, used by all analysts. From Benchmark 1 Knowledge-Based Competency Test 10.21.2008… Click to advance
  61. 61. Incorrect and Expired stock chemicals used to prepare LMG Reagent (used for testing of blood) From the SWIFS Serology Procedures Manual v1.0… This recipe is specific to Sodium Perborate Tetrahydrate… Click to advance
  62. 62. Incorrect stock chemical used to prepare LMG Reagent from 3/17/05 to 5/17/05 Sodium Perborate Monohydrate Lot# 10215KQ This stock chemical was erroneously used to make the LMG Reagent, used by all serologists in the lab. It is listed in the Serology Reagent Log Binder, 03.17.2005 to 05.17.2005. (see next slide) It is unknown if this preparation of LMG Reagent was used in case work. However, there is no other listing in the Serology Reagent Log Binder of the preparation of the LMG Reagent for this time period. This stock chemical is still in the Serology Lab chemical cabinet as of April 2009. A trainee placed red tape across the lid to prevent other analysts from using it by mistake. No CAR was issued nor any action taken by Management even after receiving the anonymous report from the TFSC. From SWIFS’s 08.27.2009 response to the anonymous complaint (#12, page 16)… “…the chemical composition of a test reagent can not be varied, nor can the standards for QC testing reagents…” Click to advance
  63. 63. (as documented in the Serology Reagent Log Binder) Incorrect stock chemical used to prepare LMG Reagent from 03.17.2005 to 05.17.2005 Sodium Perborate Monohydrate Lot# 10215KQ Correct Incorrect Correct chemical chemical chemical Still passes QC!!! Lot# T20599 Lot# 10215KQ Lot# T20599 Sodium perborate tetrahydrate Sodium perborate monohydrate Sodium perborate tetrahydrate From J.T. Baker, cat# 3811 From Sigma Aldrich, cat# 10332 From J.T. Baker, cat# 3811 LMG Reagent prepared 01.27.2005 LMG Reagent prepared 03.17.2005 LMG Reagent prepared 05.18.2005 Why did the analysts use the incorrect chemical? Because the correct chemical was expiring… Click to advance
  64. 64. Expired stock chemical used to prepare LMG Reagent 2009 PRICE (Sigma-Aldrich) 250grams, $27.30 In July 2008, a Trainee reported the use of this expired stock chemical to Supervisors. New stock chemical Sodium perborate tetrahydrate (Fluka/Sigma) ordered in September 2008. Replaced with new stock chemical in December 2008. Documented in the Serology Reagent Log Notebook (see Addendum to TFSC Report). Click to advance
  65. 65. Expired stock chemical used to prepare LMG Reagent From the SWIFS Environmental Health and Safety Program v2.0, Chemical Safety Plan… From the SWIFS Quality Management Program of the Forensic Biology Unit v1.2, Serology Laboratory/DNA Laboratory (02.27.2008)… … 12.5. Reagents and solutions for DNA testing. Reagents and solutions used in DNA testing will be recorded in a log notebook, and will be assigned a laboratory inventory number. In addition, containers for reagents and solutions will be marked as having passed quality control testing. The Quality Coordinator for Reagents and Solutions (QCRS) oversees the assignment of quality control testing and documents the results of QC testing for all critical reagents used for DNA analysis. Results of all QC testing of critical reagents used for DNA analysis will be verified by the QCRS, or by the Forensic Biology Supervisor/DNA Technical Leader, prior to being included on the casework Reagent List. As appropriate, only reagents and solutions that have passed the appropriate quality control test will be used for analysis of case work samples. 12.5.1. The expiration dates for critical reagents used for DNA analysis will not be provided on the Casework Reagent List by the QCRS. It will be the responsibility of the DNA analyst to write in the expiration dates for those reagents used by the analyst in the DNA testing. … Click to advance
  66. 66. Expired stock chemical used to prepare LMG Reagent From the ASCLD-LAB Manual, 2005… Surprisingly… From the ASCLD-LAB Inspection Report, SWIFS Inspection Feb 26-29, 2008, Issued 09.13.2008… Yes No N/A Click to advance
  67. 67. In an impromptu Serology Lab meeting on 01.27.2009 (following an internal audit that “discovered” the log of the expired chemical in the Reagent Log Notebook), Dr. Stacy McDonald told all the forensic biologists: 1. Because the chemical was no longer in the lab, it was impossible to determine if the sodium perborate was truly expired, 2. Chemical companies do not always perform rigorous testing of their stock chemicals and often arbitrarily assign a 5 year expiration date. Therefore, this chemical is not expired. In fact, these are lies… 1. The Chemical Safety Manager had collected the remaining expired chemical and was storing it in the Toxicology Lab for proper chemical disposal, 2. Expiration dates for each chemical purchased are available online and through tech support for each Chemical Supplier… Click to advance
  68. 68. Mallinckrodt Baker (formerly J.T. Baker) documentation explaining “Use-before date” and “Retest date” From an email query from a Trainee to Mallinckrodt Baker Customer Help… 01/29/2009 3:24PM Hello! I am attempting to locate information regarding the expiration/use-before/retest date on the product Sodium perborate tetrahydrate, cat# 3811-05, lot# T20599. I believe this is a product you no longer sell. Is it possible to still get info on this product?? Thanks! ---------- 01/30/2009 2:03PM 3811 is a discontinued product, and we no longer sell Sodium Perborate Tetrahydrate. The lot you have expired on May 31, 2005, which is listed on the product label. Since this lot is over 7 years old, we no longer have the C of A on file. Regards, Click to advance
  69. 69. Mallinckrodt Baker (formerly J.T. Baker) documentation explaining “Use-before date” and “Retest date” http://www.mallbaker.com/solvit/default.asp?opt=1 Click to advance
  70. 70. Expired stock chemical used to prepare LMG Reagent This is a memo left inside the Reagent Logbook to explain the use of the expired stock chemical to future external auditors. It was written after the 05/05 expiration date notation was “discovered” in the Reagent Logbook during an internal audit in January 2009. (The continued use of an expired stock chemical in the serology laboratory was presented in the 11.25.08 memorandum written by a trainee to the Executive Committee. Thus, it was known prior to the internal audit.) Lab analysts were not given the memo and were unaware that it existed. Click to advance
  71. 71. Expired stock chemical α–Naphthyl Acid Phosphate used by serologists to prepare the Brentamine Reagent 2009 PRICE $105.00 (Front view) (Side view) New stock chemical received in the lab on 10.27.2008, and first used 11.25.2008 (documented in Reagent Log Notebook). According to Dr. Stacy McDonald (from the 01.27.2009 lab meeting), this stock chemical would have expired in 2007. Click to advance
  72. 72. Expired stock chemical α–Naphthyl Acid Phosphate used by serologists to prepare the Brentamine Reagent Lot # 091K2621 http://www.sigmaaldrich.com/catalog/CertOfAnalysisPage.do?symbol=N7000&LotNo=091k2621&brandTest=SIGMA Click to advance
  73. 73. Sigma-Aldrich Product Dating Information www.sigmaaldrich.com/etc/medialib/docs/Sigma-Aldrich/General_Information/product-dating-information-statementv4.pdf Click to advance
  74. 74. Expired stock chemical Fast Blue B Salt used to prepare the Brentamine Reagent 2009 PRICE $24.10 (Front view) (Top view) Sigma cat# D9805 lot # 024K0762 received date: 07.27.2004 opened date: 08.05.2004 expiration date: “lined-out” (why?) discontinued in lab on 12.28.2008; pdf. of Certificate of Analysis states February 2004, No Re-test Date Click to advance
  75. 75. Expired stock chemical Fast Blue B Salt used to prepare the Brentamine Reagent Lot # 024K0762 http://www.sigmaaldrich.com/catalog/CertOfAnalysisPage.do?symbol=D9805&LotNo=024K0762&brandTest=SIAL Click to advance
  76. 76. Sigma-Aldrich Product Dating Information (again) www.sigmaaldrich.com/etc/medialib/docs/Sigma-Aldrich/General_Information/product-dating-information-statementv4.pdf Click to advance
  77. 77. Management was aware of potential quality assurance issues From the Reagent Log Notebook (B&W photocopy)… Coincidentally, even though the expired chemicals were not considered a quality assurance concern, these three stock chemicals were re-ordered for the lab after the Trainee reported to the Supervisor that expired chemicals were being used in the lab. The new stock chemicals were not used until months later. Previous expired lots continued to be used until (approximately) 11.25.2008. See next slide… Click to advance
  78. 78. Management was aware of potential quality assurance issues From the Reagent Log Notebook (B&W photocopy)… Under the direction of Dr. Tim Sliter, this was written by analyst PRL. It is the description of a validation experiment for the determination of expiration dates of stock chemicals. This comparison was not performed on mock items of evidence, but performed on control swabs only. The experimental comparison of expired chemicals versus new chemicals implies a potential quality assurance issue with expired chemicals previously used on real items of evidence. Both of these chemicals were beyond the chemical company’s assigned expiration dates (and Lot# 91K2621 1-naphthyl phosphate stock chemical was beyond Dr. Stacy McDonald’s arbitrary “5 year” expiration date as she stated in the 01.27.2009 serology lab meeting.) Dr. Tim Sliter never signed this statement (as of May 2009). Click to advance
  79. 79. Incorrect and Expired stock chemicals used to prepare LMG Reagent (used for testing of blood) From the SWIFS Serology Procedures Manual v1.0… Click to advance
  80. 80. (as documented in the Serology Reagent Log Binder) Expired stock chemical used to prepare LMG Reagent Sodium Bisulfite Lot# 976762 ? Expired Sodium Bisulfite Correct Fisher Scientific chemical Cat# S654-500 Lot # 976762 Received 04.14.98 Last seen in the lab, May 2009 side view rear view Incorrect chemical + expired chemical = acceptable practice to Management Click to advance
  81. 81. Expired stock chemical used to prepare LMG Reagent 2009 PRICE $47.55 (Front) (Side) Sodium Bisulfite, granular Manufacturer: J.T. Baker (now Mallinckrodt-Baker Chemicals) Cat # 3556-01 Lot # JO1716 Received 4-21-1995 (This pre-dates Drs. Tim Sliter’s and Stacy McDonald’s employment at SWIFS.) “Recvd fr Louis J. 10-8-03” (An unknown source) Last used: 04.28.2009…still in use??? Click to advance
  82. 82. FBU analysts risk committing perjury because SWIFS does not use reliable principles and methods From SWIFS’s 08.27.2009 response to the anonymous complaint (#27, page 27)… “…The empirical demonstration of the efficacy of the LMG Activator Solution by QC testing is sufficient to assure that the testing solutions used in casework are effective, in accordance with ACSLD/LAB accreditation requirements…” Failure events during QC of reagents are not recorded. Error rates are not known. Daubert Standards are not met. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) is a United States Supreme Court case determining the standard for admitting expert testimony in federal courts. The Daubert Court held that the enactment of the Federal Rules of Evidence impliedly overturned the Frye standard; the standard that the Court articulated is referred to as the Daubert standard. The Court defined "scientific methodology" as the process of formulating hypotheses and then conducting experiments to prove or falsify the hypothesis, and provided a nondispositive, nonexclusive, "flexible" test for establishing its "validity": 1. Empirical testing: the theory or technique must be falsifiable, refutable, and testable. 2. Subjected to peer review and publication. 3. Known or potential error rate. 4. The existence and maintenance of standards and controls concerning its operation. 5. Degree to which the theory and technique is generally accepted by a relevant scientific community. Click to advance
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