09.05.2011 partial response draft to don wyckoff

8/2/2019 09.05.2011 Partial Response Draft to Don Wyckoff

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September 5, 2011 Christopher Nulf, Ph.D. / [email protected]

The following is only a partial draft report regarding Mr. Don Wyckoffs (ASCLD/LAB)review towards the allegations of scientific misconduct in the Dallas County Crime Lab.

This draft is only intended for the Texas Forensic Science Commission meeting in Austin,Texas, September 8-9, 2011.

The numbering of the references is specific to this draft only.

A full report will be provided at a later date.


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TO: The Texas Forensic Science CommissionRalph Keaton, ASCLD/LAB Executive DirectorPat Johnson, Texas Department of Public Safety, Crime Lab Director

FROM: Christopher Nulf, Ph.D.

DATE: September 4, 2011

SUBJECT: Response to Don Wyckoffs "review" of the complaint against theSouthwestern Institute of Forensic Sciences (SWIFS) of Dallas,dated June 18, 2010.

The following report is in regards to Mr. Don Wyckoffs "review" towards the allegations of scientific misconduct in the Dallas County Crime Lab (SWIFS).

In the best of light, Don Wyckoff is incompetent.

In the worst of light, Don Wyckoff is corrupt.

The American Society of Crime Lab Directors/Lab Accreditation Board (ASCLD/LAB) shouldtake immediate actions to remove Mr. Don Wyckoff from any forensically-related work, as hisethics, honesty, and intelligence are incredulous. The forensic community would greatly benefitfrom his banishment.

The report Mr. Wyckoff fabricated for the Texas Forensic Science Commission (dated June 18,2010) can easily be described as superficially incomplete, intellectually impotent, and criminallybiased. Mr. Wyckoff's entire report consists of nothing more than a collection of blanketstatements presented as the truth, but without the inconvenience of documentation and referencesto demonstrate truthfulness.

He misrepresented himself as someone of knowledge, dangerously promoting his ineptitude asscientific.

Framed inside a weakly disguised smear campaign, it is clear that Mr. Wyckoff had the obviousobjective of avoiding objectivity. His preconceived purpose for the report was to obfuscate anyresponsible on-going investigation by creating yet another document with the ASCLD/LAB logopainted across the headspace under the auspices that it was created honestly, impartially,ethically, and with thoroughness.

Mr. Wyckoff never confirmed anything that the crime lab stated as fact.Mr. Wyckoff never made an on-site visit to the crime lab.Mr. Wyckoff purposely omitted facts that did not support his prefabricated conclusions.Mr. Wyckoff never asked me, the originator of the complaint, a single question.

Unfortunately, the conclusions Mr. Wyckoff presented in his "review" may have weighted thedecision for a delayed response from the TFSC towards completing a thorough, independentinvestigation.

By presenting only selective material that fit a slanted narrative, Mr. Wyckoff's perverse goal wasto absolve accountability of those people who were responsible for a decade or more of scientificnegligence, scientific misconduct, fraud, and illegal activities -- the Management of the DallasCounty Crime Lab, Dr. Tim Sliter and Dr. Stacy McDonald.


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Introduction

Even though Mr. Wyckoff's "review" is dated June 18, 2010, I received a copy from the TexasForensic Science Commission (TFSC) on August 17, 2011. Until this time, I was unaware thatASCLD/LAB had performed an investigation of SWIFS and the allegations of scientificmisconduct I reported.

Mr. Wyckoff was so confident in his "review" that he did not bother to forward a copy to me, theoriginator of the complaint, for scrutiny. If he had, my response would have been presentedearlier to the TFSC.

While not stated in his "review", the ASCLD/LAB "Inspector", Mr. Don Wyckoff, (actually,ASCLD/LAB Business Manager) apparently has all the educational and experience criterianecessary to perform an accurate, truthful, thorough, and unbiased review, including a B.A. inBiology received in 1974 from Franklin College, Indiana. And, according to his resume, heserved as a Criminalist/Laboratory Manager at the Idaho State Police (ISP) from 1979-2001.

Unfortunately (or perhaps fortunately for the unaware forensic community), throughout Mr.Wyckoff's "review" he reveals his complete lack of understanding of the concepts of "protocols","experimental controls", as well as the idea of "ethics". The logically limp interpretations toutedby Mr. Wyckoff will be pointed out in this report in glorious detail.

The remainder of this report will be presented in the order of Mr. Wyckoff's "review". Most of the references used in this report are borrowed from the Unfounded Why? PowerPointpresentation submitted by the anonymous complainant sliter.chews.pens to the TFSC inDecember 2010 (Note: The Unfounded Why? PowerPoint was prepared by sliter.chews.pensbefore the report from ASCLD/LAB was made available to me. Most, if not all, of Mr.Wyckoff's points are demonstrated to be misleading, false, or fabricated in his report to the TFSCfrom the information found within the PowerPoint presentation.)

Mr. Wyckoff's "Review" of Complaint

The TFSC notified ASCLD/LAB around May 20, 2009 ( 1). Having never received a responsefrom ASCLD/LAB, the TFSC attempted to re-contact ASCLD/LAB on July 24, 2009 ( 2).ASCLD/LAB notified the Dallas County Crime Lab on August 5, 2009 (According to The DallasCounty Crime Lab's Memorandum dated August 27-28, 2009).

Sensing the imperative need to address reports of alleged scientific misconduct in a crime lab thatASCLD/LAB accredited, twice ( 3), Mr. Wyckoff and ASCLD/LAB took the immediate action toperform an audit -- by telephone -- 14 months after the claims were reported.

Mr. Wyckoff began his "investigation" with an unusual approach towards assessing theallegations against the Dallas County Crime Lab by initiating an internet search. All of hissearches reveal hits that describe events of the complainant that occurred several months afterthe submission of the complaint to the TFSC, and several months after the complainant had beenwrongfully terminated from his employment at the crime lab. No 'hits' were found within the dateof my employment at the crime lab (March 2008-May 2009). Mr. Wyckoff presented noevidence of his internet searches.


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..Further internet searches revealed that around June 2009 a wrongfultermination lawsuit was going to be filed against Dallas County andSWIFS

This statement is factually untrue. Considering that I did not obtain legal representation untilAugust/July of 2009, it would be impossible for Mr. Wyckoff to find information from an internet

search related to a civil lawsuit, or intent to sue, from June 2009. October 21, 2009 (7 monthsafter the submission of the complaint to the TFSC) was the date that the civil law suit wasinitiated and broadcast to the news and would have been the first date discovered on the internet.

Through Mr. Wyckoff's internet searches, he was clearly attempting to introduce a motive for thesubmission of the complaint to the TFSC -- my intent was solely for retaliation and litigiouspurposes.

Mr. Wyckoff fails to mention that, at the time I submitted the complaint to the TFSC, I was stillemployed at the lab (and had been for 12 months) and remained employed at the lab until earlyMay 2009. Therefore, a wrongful termination law suit could not have been feasible at that timethe complaint was submitted (i.e. not the motive for submission of the complaint).

Mr. Wyckoff also fails to mention that during my employment period there were numerous verbalcommunications and emails ( 4)(5) to Dr. Tim Sliter and Dr. Stacy McDonald from several othertrainees in the crime lab with the same concerns regarding the Serology Training Guide v1.1(STG) and the Serology Procedures Manual v1.0 and 2.0/.1 (SPM). Of critical importance is amemorandum ( 6) written by the complainant on November 25, 2008, to the Quality ManagerKaren Young with several of the same complaints presented in the March 16, 2009 anonymouscomplaint sent to the TFSC and the Texas Department of Public Safety (TxDPS) Crime LabDirector Pat Johnson. The number of internal complaints during my employment period suggeststhat there was a long history of negligence and unresolved conflicts in the lab before theanonymous complaint was submitted. Mr. Wyckoff neglected to include these facts in his"review".

Mr. Wyckoff also fails to mention that it is the ethical ( 7) and legal ( 8)(9) requirement of aforensic biologist to report allegations of scientific misconduct. Not reporting the scientificmisconduct that I witnessed is grounds for employment termination.

Furthermore, Mr. Wyckoff fails to note that the Management of the Dallas County Crime Lab didnot send its own reports of scientific misconduct to ASCLD/LAB ( 10 ), The Texas Department of Public Safety ( 9), or the Texas Forensic Science Commission ( 8), although there are numerousdocuments to suggest that misconduct occurred inside the crime lab (including the fraudulentdocuments that SWIFS management wrote accusing me of misconduct).

report in progress

Continuing with his "investigation", after surfing the internet for two weeks, Mr. Wyckoff statesthat he decided to actually interview people -- finally.

Rather than appearing at the lab for an on-site visit and witnessing a tour of the lab first-hand, Mr.Wyckoff took another unique approach of performing a lab audit -- by calling and interviewingpeople on the telephone.


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He literally phoned it in.

On June 8, 2010 (and again on June 21, 2010), Mr. Wyckoff spoke with Karen Young (SWIFSQuality Manager), Dr. Tim Sliter (SWIFS Chief of Physical Evidence), and Dr. Stacy McDonald(SWIFS Deputy Chief of Physical Evidence) in a teleconference.

Mr. Wyckoff states:

"During this teleconference all of the topics raised in the complaintand the SWIFS responses to those issues were discussed"

Actually, this is untrue . Not all the topics raised in the comp laint were discussed because, in fact,SWIFS's August 27-28, 2009 memorandum did not respond to all the allegations in theanonymous complaint.

Allegations related to the crime lab's use of an incorrect chemical to analyze evidence ( 11 ) andallegations related to the negligence of the lab to maintain an Employee DNA Profile database to

compare against unknown DNA profiles collected on items of evidence ( 12 , 13 ) were apparentlynot discussed during the telephone conferences. Theses topics will be presented later on in thisreport.

Some Chronology of Events as SWIFS during 2008-2009

Mr. Wyckoff correctly stated that ASCLD/LAB did conduct an accreditation inspection of theSWIFS facility in February 2008 and granted re-accreditation to the lab in September 2008, buthe suspiciously forgot to mention some of the findings of the external auditors.

Written by Meghan Clement and Jodine Zane in the February 26-28, 2008 Quality Assurance

Audit for Forensic DNA and Convicted Offender DNA Databasing Laboratories , they state ( 14 )that some of the references in SWIFS Quality Assurance Manuals are "obsolete" and that newlyimplemented procedures/policies are not reflected in the version provided to the auditors. Thesesame obsolete manuals were given to the new trainees to learn in March 2008 ( 15 ). Thesefindings mirror those allegations of the complaint to the TFSC in that lab protocols and trainingguide were also not maintained to reflect current practices.

However, strangely, the ASCLD/LAB RE-Accreditation Report from September 2008 claims theexact opposite of the February 2008 Audit in that SWIFS's quality assurance manuals were "keptcurrent" even though the audits were performed on the same days and written by the same people,Meghan Clement and Jodine Zane ( 16 ). This anomaly was not reported by Mr. Wyckoff in his"review".

Most peculiarly, not mentioned by Mr. Wyckoff was a second external audit performed on June23, 2008, by Lucy Houck (NFSTC Lead Auditor) and Katherine Butler (NFSTC TechnicalAuditor). Strangely, this second audit was performed only 4 months after the re-accreditationaudit by Meghan Clement and Jodine Zane even though, according to The FBI Quality AssuranceStandards Audit for Forensic DNA Testing Laboratories , crime lab audits must occur between 6months to 18 months after the previous audit ( 17 ).


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This second audit was not mentioned by Mr. Wyckoff because this second audit reports many of the findings reiterated in the complaint sent to the TFSC in March 2009. (As a side note, forensicanalysts are not informed of the findings of the audits by the SWIFS Management. The lab staff is not alerted to lab operation discrepancies reported by auditors.)

This second audit in June 2008 also found several other violations not found in the external audit4 months earlier in February 2008, or the internal audit performed by Dr. Tim Sliter and Dr. StacyMcDonald in December 2007. The June 2008 audit findings include:

-Lack of documentation for procedure validation studies-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

(18 )

Collectively, these two audits suggest that the Management of SWIFS had serious problemskeeping their manuals up-to-date and free from errors. It also calls into question the day-to-dayevaluations of the operations of the lab -- the same problems reported in the complaint to theTFSC. Similar problems can be found in other SWIFS lab audits dating back to 2002 ( 19 ).

If Mr. Wyckoff had taken his task seriously and performed a thorough investigation of SWIFSManagement by recovering memorandums written by lab Management and analyzing the resultsof the lab audits during the leadership of Dr. Tim Sliter (employed at the crime lab since 1998),Mr. Wyckoff would have noticed a peculiar trend in the internal audits performed at SWIFS. Mr.Wyckoff would have discovered SWIFS Lab Management's modus operandi .

For those annual internal audits performed by Dr. Tim Sliter ( 20 )(21 ), not a single problem in thecrime lab was reported to ASCLD/LAB. Not a single violation was discovered by SWIFSManagement even though external auditors always found problems in the lab (sometimes thesame repeated problems from audit to audit). This should have been a red-flag to Mr. Wyckoff

considering that the STG v1.1 (written in 2001) was never corrected (until 2010) and the SPMv1.0 (written in 2001) was not corrected of many of its mistakes until February 2009.

Regarding my serology training from March 2008 to May 2009, Mr. Wyckoff states:

"the complainant's performance was deemed to be unsatisfactory andhe was restarted in the blood and semen training program. Thetrainer/managers overseeing the complainant's retraining again felt thatno improvement was shown during the next seven months"

The statement is only accurate if the trainers/managers themselves were trained correctly.The statement is only accurate if the trainers/managers themselves understood basic fundamentalscientific concepts and not simply teaching false concepts (or, in fact, lying to trainees).The statement implies that the trainers/managers were assessing performance fairly and with adefinition of "unsatisfactory".

The written training program for the Serology Unit mentioned in Mr. Wyckoff's "review", in fact,does not exist. The written "Re-training program", also, does not exist. (The requirements for re-training were fabricated on-the-spot by Management without thought for quality assurance, andof course, tailored for failure.) The training at SWIFS is the result of generation after generationof ill-trained analysts misinforming new analysts in training. It is the result of a neglected


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training guide and protocols from 2001. There are many examples of incorrect scientific theorytaught to the analysts ( 22 )(23 ). There are numerous examples of trainers teaching incorrectprocedures ( 24 )(25a , b )(26 )(27 ), critiquing trainees' performances on trainer preferences, notwritten policy.

Other Forensic Units at SWIFS provide written training programs for their new analysts ( 28 ).However, in the SWIFS Serology Unit, new analysts were given the Serology Training Guidev1.1 (STG) and the Serology Procedures Manual v1.0 (SPM) for learning and testing purposes(i.e. there is no written program in the SWIFS Serology Unit similar to Mr. Wyckoff's footnoted

DNA Analyst Training, Laboratory Training Manual referenced later in his "review"). Strangelyhowever, after my complaint was submitted to the TFSC citing training issues, i n their August 27,2009 memorandum to ASCLD/LAB, SWIFS's Management claimed that the Serology TrainingGuide v1.1 was not used for training purposes ( 29 ). This suggests that only the technically,procedurally, and scientifically incorrect Serology Procedures Manual v1.0 (written in 2001) wasused for training new personnel in SWIFS serology lab practices and scientific concepts. Thismanual by itself is not an acceptable document to qualify as a written training program.

Mr. Wyckoff fails to mention that this oversight (the lack of a written Serology TrainingProgram) was not recognized in the ASCLD/LAB Re-accreditation audit of September 2008 ( 29 ),or the ASCLD/LAB accreditation audit of 2003.

Mr. Wyckoff fails to mention that a new Serology Training Guide v2.0 was created in 2010 afterthe complaint was brought forward -- after several trainees were constructively terminated fromtheir careers at SWIFS for failing to complete their training ( 30 ).

Also of importance, which Mr. Wyckoff failed to mention, is that in the first few months of employment I had successfully completed the written test, the microscopic competency test(sperm search), and the lab competency test ( 31 ) at approximately the same time as two othertrainees, both of whom had considerable training and experience in other crime labs.

report in progress

Addressing the Complaint

I) Scientifically incorrect controls stated in the Serology Procedures Manual (SPM),Version 1.0

Example 1: The Serology Procedure Manual (SPM) manual [sic] states that before using a newlot of HemaTrace Blood Cards such will be QC-checked using de-ionized water as the negativecontrol; while later in the manual the sample batch results, QC check consisted of using the

extraction buffer as a negative control.

Response:Mr. Wyckoff states:

"SWIFS personnel testing serological evidence were deviating fromthe written manual procedure"


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This is a true statement. However, it is impossible to confirm when analysts began deviatingfrom the protocols. It is impossible to ascertain which analysts were deviating from the writtenprotocol. And it is impossible to establish which lab reports may have been affected by thedeviation because it is impossible to determine which negative control the analysts were using.Only "Negative Control" is recorded by the analysts on their worksheets, not "water" or"HemaTrace buffer" ( 32 ).

Mr. Wyckoff also states:

"The change in procedure follows SWIFS forensic biology personnelinitiating a review of the procedure as required by the laboratory'squality system, and empirical data shows"

This is a false statement.There was no quality review of the procedure because the change in the protocol was an inclusion of the correct the negative control, the HemaTrace Buffer, into the SPM.There were no validation experiments for the use of water as a negative control (instead of HemaTrace Buffer) performed at the time the protocol was implemented into the SPM v1.0.

Mr. Wyckoff did not confirm that the initial validation studies for the HemaTrace protocols wereperformed correctly (with the HemaTrace buffer as a negative control) in 2003.Mr. Wyckoff did not provide the empirical data for his "review" to demonstrate its legitimacy orexistence. -- because there is no empirical data.Mr. Wyckoff did not provide an explanation as to why the change in the protocol did not occurduring the SWIFS annual quality reviews of the SPM in 2004, 2005, 2006, 2007, or 2008.Mr. Wyckoff did not provide an explanation as to why the ASCLD/LAB re-accreditation auditfailed to find this discrepancy ( 33 ).

report in progress

Example 3: SOP states that "condoms should be stored intact (as submitted) in the forensicbiology freezer until analysis."

Response:"The SPM v1.0 SOP uses "should" in the statement of how to storecondoms, while the complaint appears to interpret "freezer storage" as arequirement"

Mr. Wyckoff make an illogical attempt to define the word "should" within the context of "optional" or "not necessarily a requirement". Of course, Dr. Tim Sliter also confused thedifference between the words "should", "must", and "may", often using the definitionsinterchangeably according to his needs.

That is, it means what he wants it to mean, when he wants it to mean it.There are many examples stated within the SPM and various emails where his definitions areobscured, often leading to penalties against the analysts for misinterpretation of his definitions(34 ). Forensic analysts have no rebuttal arguments against Dr. Tim Sliter's definitions.


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The remainder of Mr. Wyckoff's response, as written, is unintelligent. He states:

"At this time, condoms are sampled and swabs are placed in sub-sample containers and stored at room temperature"

"Best practice" would be to store condoms in the freezer (along with swabs which may contain

biological material). If the above statement from Mr. Wyckoff is true and reflects the currentSWIFS protocol for storing biological samples -- at room temperature -- these protocols should beaddressed immediately.

Mr. Wyckoff also fails to mention that the Management of the crime lab actually agreed with thiscomplaint, stating in the August 27-28, 2009 report to ASCLD/LAB (complaint #10, page 15):

The Serology Procedures Manual specifies that condoms should bestored in a freezer until analysisThe Institute is in agreement with theTrainee that the manual requires updating to reflect the practices of thelaboratory

That is, Mr. Wyckoff should re-evaluate his statement for truthfulness -- and logic.

report in progress

Example 4: There is no expiration date given for the control swabs prepared in-batch. Therewas no previous in-house experimental study for determining the expiration date of the positivecontrol swabs made in-batch.

Response:Mr. Wyckoff provided no response to this claim.

report in progress

VI) Supervisor's use of scientifically unsound practices

Example 1: There are three parts to this complaint: 1) although serologists are required to wearlab coat and gloves while analyzing evidence, they are not required to wear devices such as hairnets, 2) serologists do not wear gloves when handling smears, and 3) a fan in the serologylaboratory was in-use during the time that evidence was being worked.

Response:Regarding the wearing of other protective devices, Mr. Wyckoff states:

"In case work review, proficiency test results, validation studies, etc.,the inspection team did not note contamination as an issue within theforensic biology section. No such evidence exists from the review of proficiency tests that SWIFS personnel have taken since March2008"


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Mr. Wyckoff did not consider that contamination issues would only be found if the Managementwas actually looking for contamination events and documenting contamination events. This wasnot the case at SWIFS.

As was stated in the March 2009 complaint ( 12 ) and re-iterated in the April 15, 2010memorandum ( 13 ) the Management did not obtain a buccal swab (DNA sample) from thecomplainant to include with an SWIFS Employee DNA database for comparison againstunknown DNA profiles found on items of evidence. Detection of an employees DNA on items of evidence is one quality assurance means for determining contamination problems in the lab ( 35).

Also, if Mr. Wyckoff had been thorough with his investigation and located CAR 07-007 ( 36 ) andCAR 06-006 ( 37 ) he would have noted that both blood and semen contamination events in the labwere documented, yet not fully addressed correctly by Lab Management. And because Mr.Wyckoff and ASCLD/LAB officials are of the opinion that the biological standards do not haveto be traceable, there is no means of discovering accidental contamination events from employeesor biological reagents used in the lab.

Regarding the wearing of gloves when handling smears, Mr. Wyckoff states:

"While on-site, the 2008 ASCLD/LAB inspection team observedSWIFS serologist manipulating slides/smears without gloves[if]smears were routinely analyzed for DNA evidencewearing gloveswhile handling smears would become standard laboratory practice.Such was not found to be the case"

While analyzing smears for DNA may not be routine practice, it is a real possibility -- as wasseen with the case of exoneree Larry Charles Fuller ( 38 ). (This information was presented in theApril 15, 2010 Report to the TFSC from the complainant.) Smears from a Sexual Assault kit wereanalyzed at SWIFS, stored at SWIFS, and later used for DNA testing which lead to the discoveryof the wrongful conviction of Mr. Fuller. (Note: an unknown male DNA profile was found on thesmear.)

And considering that the Management of the crime lab did not obtain DNA from me during myemployment at the lab (and possibly other analysts in the lab), any accidental contaminationevents could compromise results from DNA analysis of smears.

Regarding the use of a fan in the serology laboratory while working evidence, Mr. Wyckoff states,

"The reporter was advised that analysts did not use this fan duringtimes that evidence was being worked within the laboratory area.Management advised that the fan was in use only during periods thatpersonnel were in the laboratory doing report writing and not whileevidence was being analyzed"

This is factually untrue. Having worked in the lab, I witness on more than one occasion ananalyst analyzing evidence while the fan was in use, directly behind the analyst, as it appears inthe picture. I provided witness testimony in a court of law (case number F08-73084-V, State of Texas vs. Stanley Vernell Ledbetter, Jr.) stating that while I was employed at the crime lab Iwitnessed on one occasion Dr. Tim Sliter actually turn the fan off because an analyst was testingitems of evidence in front of the fan.


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"If operation of this fan actually caused contamination of evidence,such contamination would be noted by staff as they workedevidence"

It would be virtually impossible for an analyst to notice a self-contamination event, cross-contamination event, or loss of evidence from use of the box fan while analyzing evidence. For

example, lightweight hair-like fibers from an item of evidence from one case could easily blowacross the bench unnoticed; landing on a second item of evidence of an unrelated case thatanother analyst is working (and ultimately collected as evidence for the unrelated case). Inanother example, tiny fingernail clippings could be blown onto the floor, forever lost, without ananalyst noticing the lost evidence. As another example, skin cells are very light-weight andundetectable by eye. Mr. Wyckoff did not conceive of these possibilities.

Mr. Wyckoff does not explain why the 2008 re-accreditation audit did not recognize thisuncondoned quality assurance problem during their inspection.

Example 2: Do not use out-of-date or unlabeled chemicals. An expired bottle of sodiumperborate tetrahydrate (JT Baker) was used in the preparation of the LMG reagent.

Response:Mr. Wyckoff states,

"the shortcoming of any presumptive test is that it can give falsepositive results in certain instances. It is for this reason that positiveand negative controls are run concurrently with samples at the time of use"

Mr. Wyckoff's inconceivable interpretation of the scientific purpose of positive and negativecontrols in his statement is incomprehensible and dangerously assuming.

In the SWIFS serology lab, the "positive control" is used to test the chemical reactivity of theLMG reagents towards known dilutions of blood in water (on a swab).

The "negative control", water only (on a swab), is a control for the positive control. That is, thenegative control determines that the chemical reactivity of the positive control is not a result of the water used for the dilution of the blood on the positive control swab (assuming that the sourceof the water is the same for both the positive control and the negative control.)

The "positive controls" and "negative controls" are not functional chemical tests for identifyingfalse positive and false negative results which may arise from a variety of unknown "factors"which may be present on items of evidence ("factors" being loosely defined as sweat, saliva,tears, urine, feces, vomit, oils, greases, grime, filth, funk, and who-knows-what-else-at-whatever-concentration in this non-exhaustive list.)

Insofar as recognizing false positive and false negative results, identifying the limitations of presumptive tests is the purpose of validation experiments -- which are planned, performed, anddocumented prior to implementation of a protocol for use in testing -- except at SWIFS.

According to the Lab Management (as told to the analysts), SWIFS did not perform validationexperiments for the LMG reagent (or the Brentamine reagent used for testing items for semen.)because ASCLD/LAB "grandfathered" the long-standing protocols of SWIFS during the 2003


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accreditation, declaring the validation experiments unnecessary. (My attempts to locate validationstudies while employed at the crime lab were unsuccessful.) Therefore, for the SWIFS protocolswhich use the LMG Reagent (and the Brentamine Reagent) in testing of evidence, those "factors"which contribute to false positive and false negative results are unknown. The error rates forfalse positive and false negative results are unknown when testing items of evidence.

And, again, because the SWIFS protocols do not include a specific scientific literary reference(where a variety of "factors" may have been tested in the authoring lab), SWIFS analysts can noteducate themselves to the limitations of the presumptive tests they use.

Sadly, not even the error rates of the daily QC of their reagents (with lab prepared control swabs)are known because SWIFS does not record failures in the daily QC of their LMG Reagent (orBrentamine Reagent) ( 39a , b , c). Only the positive results are recorded at the top of labworksheets.

Mr. Wyckoff proceeds to state,

"In reviewing the chemistry of sodium perborate, 7 background

information list the shelf life of the mono-, tri-, and tetra-hydrate formsas "long""

This information provided by Mr. Wyckoff is not stated anywhere in any of SWIFS manuals orprotocols. Forensic analysts could not have, and would not have, provided this explanation astestimony in a court of law as reasoning for purposely not following SWIFS's written protocolswhich explicitly state, "do not use unlabeled or out-of-date chemicals" and "follow writtenlaboratory procedures" ( 40 ).

Without providing the actual reference for his footnote "(7)various chemistry websites relatedto sodium perborate, and textbooks on inorganic chemistry", and without providing a definedtime-limit for "long", Mr. Wyckoff's inept reasoning is nonsense.

"This long shelf-life is further substantiated by the fact that whenSWIFS replaced the JTBaker sodium perborate with Fluka sodiumperborate, no expiration date is listed on the Fluka container"

Again, Mr. Wyckoff's statement is obtuse. While there may be no expiration date listed on theFluka chemical bottle, this does not mean there is no expiration date. Fluka/Sigma-Aldrichprovides a "Certificate of Analysis" for most chemicals sold that provide their analytical testingdetails for the particular lot number of the chemical which is readily available on-line ( 41 ).

Fluka/Sigma-Aldrich has very specific definitions for its "QC Release Date" and "RecommendedRe-Test Date" ( 42 ) listed on its Certificate of Analysis. And each date is only valid if the reagentwas stored properly in the lab and remained unopened. In addition, the chemical company states"For customers whose systems require a formal date management, use of a date one year fromshipment is supported by our terms and conditions of supply" ( 42 ).

More to the point, the sodium perborate tetrahydrate from JT Baker that was reported in thecomplaint to the TFSC and the TxDPS had a defined expiration date -- as stated on the front of the bottle ( 43 ) and confirmed by the JT Baker technical support ( 44). Therefore, the expirationdate of the chemical is incontrovertible.


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Mr. Wyckoff failed to address why SWIFS annual quality reviews (and annual inventory of chemical reagents in the lab) of 2005, 2006, 2007, and 2008 did not find this expired chemical.

Mr. Wyckoff failed to address why both the February 2008 Quality Assurance Audit and theSeptember 2008 Re-accreditation audit (and every other audit) did not find this expired chemicalin the serology lab.

Mr. Wyckoff then offers this questionable supposition,

"It seems incongruous that at a time when the serology sectionattempts to address the situation and the complainant might shed somelight on the case, possibly even providing the chemical for testing andconfirmation as to whether it will work pass the expiration date, thecomplainant offers nothing to the discussionAt the least, thecomplainant appears to be subverting the SWIFS quality assuranceprocess, as well as not complying with parts of the SWIFS Standards of Business Conduct and Employee Responsibilities"

Of course, in his "review" Mr. Wyckoff failed to mention that it was the complainant that alertedDr. Stacy McDonald of the use of expired chemicals (plural )(45 )(46 )(47 )(48 ) in the serology lab,and that several new chemicals were ordered simultaneously to replace the expired chemicals(49 ).

Mr. Wyckoff also failed to mention that the Supervisors knew exactly where the expired chemicalwas taken after leaving the serology lab ("removed to chemical disposal"), per SWIFSprocedures ( 50 ).

Mr. Wyckoff also failed to mention the 11.25.2008 Memorandum written by the complainant andgiven to the Quality Manager describing the use of the expired JT Baker sodium perboratetetrahydrate ( 51 ).

Mr. Wyckoff also failed to mention that other forensic analysts attempted to approach Drs. Sliterand McDonald with concerns for the use of expired chemicals in the lab, only to be instructed toperform illogical and unofficial "validation experiments" ( 52 ).

Mr. Wyckoff also failed to mention Dr. Stacy McDonald's curiously located March 2009memorandum (not addressed to the lab analysts) declaring the use of an expired chemical "not aQuality Issue"; therefore, not a "situation" to address by the lab Management ( 53 ).

Because Mr. Wyckoff did not perform an on-site audit of the crime lab, he also failed to mentionthat expired chemicals and reagents continued to be used in the serology lab many monthsbeyond the March 2009 date of the complaint to the TFSC and the TxDPS ( 54 ).

Because Mr. Wyckoff did not perform an on-site audit of the crime lab, he also failed to addressthe use of an incorrect chemical (sodium perborate monohydrate) ( 55 ), purchased for the lab in1998 ( 56 ), and used for at least two months in 2005 for testing items of evidence in the SWIFSserology lab ( 57 ) (and unnoticed by every single lab auditor, including internal auditors whoknew the wrong chemical was in the lab.). If Mr. Wyckoff had been thorough with his audit, hecould have could have inspected the "reagent preparation logs" to address the possibility that thisincorrect chemical was used to prepare reagents at other times between 1998 and 2009.


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This allegation was also mentioned in the March 2009 complaint ( 11 ), but was not addressed bySWIFS.

Mr. Wyckoff's statement regarding the expiration dates of chemicals becomes even more dubiousconsidering -- even he does not believe it. Earlier in Mr. Wyckoff's "review" he referenced the

DNA Analyst Training, Laboratory Training Manual, President's DNA Initiative, Dept. of Justice .(pdi_lab_userguide.pdf). Within that reference is a hyperlink to Protocol 2.01, Quality Assurance (pdi_lab_pro_2.01.pdf), which specifically states on page 17 ( 58 ), "Chemicals will expireaccording to the manufacturer's listed expiration date, if any".

Thus, to put it bluntly, Mr. Don Wyckoff has lied and acted unethically by providingunsubstantiated and unscientific excuses for the reckless acceptance for the use of expiredchemicals in the SWIFS crime lab.

There were numerous attempts by the complainant and other SWIFS analysts to convince the LabManagement to comply with basic, sound scientific principles. However, SWIFS LabManagement was less than willing to address concerns, and in fact, retaliated against thecomplainant that documented the expiration dates (per lab protocols) and disclosed opinions ( 59a ,b , c, d , e).

Mr. Wyckoff's nefarious conjectures pertaining to the complainant's subversion of the SWIFSquality assurance process are disgraceful and reprehensible.

VII) Closing statementsreport in progress


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09.05.2011 partial response draft to don wyckoff

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