September 5, 2011 Christopher Nulf, Ph.D. / jac.blake@gmail.com The following is only a partial draft report regarding Mr. Don Wyckoff’s (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.

TO: The Texas Forensic Science Commission Ralph Keaton, ASCLD/LAB Executive Director Pat Johnson, Texas Department of Public Safety, Crime Lab Director FROM: Christopher Nulf, Ph.D. DATE: September 4, 2011 SUBJECT: Response to Don Wyckoff’s "review" of the complaint against the Southwestern Institute of Forensic Sciences (SWIFS) of Dallas, dated June 18, 2010. The following report is in regards to Mr. Don Wyckoff’s "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) should take immediate actions to remove Mr. Don Wyckoff from any forensically-related work, as his ethics, honesty, and intelligence are incredulous. The forensic community would greatly benefit from 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 criminally biased. Mr. Wyckoff's entire report consists of nothing more than a collection of blanket statements presented as the truth, but without the inconvenience of documentation and references to demonstrate truthfulness. He misrepresented himself as someone of knowledge, dangerously promoting his ineptitude as scientific. Framed inside a weakly disguised smear campaign, it is clear that Mr. Wyckoff had the obvious objective of avoiding objectivity. His preconceived purpose for the report was to obfuscate any responsible on-going investigation by creating yet another document with the ASCLD/LAB logo painted 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 the decision for a delayed response from the TFSC towards completing a thorough, independent investigation. By presenting only selective material that fit a slanted narrative, Mr. Wyckoff's perverse goal was to absolve accountability of those people who were responsible for a decade or more of scientific negligence, scientific misconduct, fraud, and illegal activities -- the Management of the Dallas County Crime Lab, Dr. Tim Sliter and Dr. Stacy McDonald.

Introduction Even though Mr. Wyckoff's "review" is dated June 18, 2010, I received a copy from the Texas Forensic Science Commission (TFSC) on August 17, 2011. Until this time, I was unaware that ASCLD/LAB had performed an investigation of SWIFS and the allegations of scientific misconduct I reported. Mr. Wyckoff was so confident in his "review" that he did not bother to forward a copy to me, the originator of the complaint, for scrutiny. If he had, my response would have been presented earlier 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 criteria necessary to perform an accurate, truthful, thorough, and unbiased review, including a B.A. in Biology received in 1974 from Franklin College, Indiana. And, according to his resume, he served 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 touted by 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? PowerPoint presentation submitted by the anonymous complainant sliter.chews.pens to the TFSC in December 2010 (Note: The Unfounded Why? PowerPoint was prepared by sliter.chews.pens before 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 TFSC from 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 response from 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 Dallas County Crime Lab's Memorandum dated August 27-28, 2009). Sensing the imperative need to address reports of alleged scientific misconduct in a crime lab that ASCLD/LAB accredited, twice (3), Mr. Wyckoff and ASCLD/LAB took the immediate action to perform an audit -- by telephone -- 14 months after the claims were reported. Mr. Wyckoff began his "investigation" with an unusual approach towards assessing the allegations against the Dallas County Crime Lab by initiating an internet search. All of his searches reveal ‘hits’ that describe events of the complainant that occurred several months after the submission of the complaint to the TFSC, and several months after the complainant had been wrongfully terminated from his employment at the crime lab. No 'hits' were found within the date of my employment at the crime lab (March 2008-May 2009). Mr. Wyckoff presented no evidence of his internet searches.

“..Further internet searches revealed that around June 2009 a wrongful termination lawsuit was going to be filed against Dallas County and SWIFS…”

This statement is factually untrue. Considering that I did not obtain legal representation until August/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 months after the submission of the complaint to the TFSC) was the date that the civil law suit was initiated 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 the submission of the complaint to the TFSC -- my intent was solely for retaliation and litigious purposes. Mr. Wyckoff fails to mention that, at the time I submitted the complaint to the TFSC, I was still employed at the lab (and had been for 12 months) and remained employed at the lab until early May 2009. Therefore, a wrongful termination law suit could not have been feasible at that time the 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 verbal communications and emails (4)(5) to Dr. Tim Sliter and Dr. Stacy McDonald from several other trainees 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 a memorandum (6) written by the complainant on November 25, 2008, to the Quality Manager Karen Young with several of the same complaints presented in the March 16, 2009 anonymous complaint sent to the TFSC and the Texas Department of Public Safety (TxDPS) Crime Lab Director Pat Johnson. The number of internal complaints during my employment period suggests that there was a long history of negligence and unresolved conflicts in the lab before the anonymous 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 a forensic biologist to report allegations of scientific misconduct. Not reporting the scientific misconduct that I witnessed is grounds for employment termination. Furthermore, Mr. Wyckoff fails to note that the Management of the Dallas County Crime Lab did not 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 numerous documents to suggest that misconduct occurred inside the crime lab (including the fraudulent documents that SWIFS management wrote accusing me of misconduct). … report in progress … Continuing with his "investigation", after surfing the internet for two weeks, Mr. Wyckoff states that 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 interviewing people on the telephone.

He literally phoned it in. On June 8, 2010 (and again on June 21, 2010), Mr. Wyckoff spoke with Karen Young (SWIFS Quality 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 complaint and the SWIFS responses to those issues were discussed…"

Actually, this is untrue. Not all the topics raised in the complaint were discussed because, in fact, SWIFS's August 27-28, 2009 memorandum did not respond to all the allegations in the anonymous complaint. Allegations related to the crime lab's use of an incorrect chemical to analyze evidence (11) and allegations 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 apparently not discussed during the telephone conferences. Theses topics will be presented later on in this report. Some Chronology of Events as SWIFS during 2008-2009 Mr. Wyckoff correctly stated that ASCLD/LAB did conduct an accreditation inspection of the SWIFS facility in February 2008 and granted re-accreditation to the lab in September 2008, but he 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 newly implemented procedures/policies are not reflected in the version provided to the auditors. These same obsolete manuals were given to the new trainees to learn in March 2008 (15). These findings mirror those allegations of the complaint to the TFSC in that lab protocols and training guide were also not maintained to reflect current practices. However, strangely, the ASCLD/LAB RE-Accreditation Report from September 2008 claims the exact opposite of the February 2008 Audit in that SWIFS's quality assurance manuals were "kept current" 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 June 23, 2008, by Lucy Houck (NFSTC Lead Auditor) and Katherine Butler (NFSTC Technical Auditor). Strangely, this second audit was performed only 4 months after the re-accreditation audit by Meghan Clement and Jodine Zane even though, according to The FBI Quality Assurance Standards Audit for Forensic DNA Testing Laboratories, crime lab audits must occur between 6 months to 18 months after the previous audit (17).

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, forensic analysts 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 audit 4 months earlier in February 2008, or the internal audit performed by Dr. Tim Sliter and Dr. Stacy McDonald 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 problems keeping their manuals up-to-date and free from errors. It also calls into question the day-to-day evaluations of the operations of the lab -- the same problems reported in the complaint to the TFSC. 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 SWIFS Management by recovering memorandums written by lab Management and analyzing the results of 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 the crime lab was reported to ASCLD/LAB. Not a single violation was discovered by SWIFS Management even though external auditors always found problems in the lab (sometimes the same 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 SPM v1.0 (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 and he was restarted in the blood and semen training program. The trainer/managers overseeing the complainant's retraining again felt that no 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 fundamental scientific 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 a definition 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, and of course, tailored for failure.) The training at SWIFS is the result of generation after generation of ill-trained analysts misinforming new analysts in training. It is the result of a neglected

training guide and protocols from 2001. There are many examples of incorrect scientific theory taught to the analysts (22)(23). There are numerous examples of trainers teaching incorrect procedures (24)(25a, b)(26)(27), critiquing trainees' performances on trainer preferences, not written 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 Guide v1.1 (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"). Strangely however, after my complaint was submitted to the TFSC citing training issues, in their August 27, 2009 memorandum to ASCLD/LAB, SWIFS's Management claimed that the Serology Training Guide 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) was used for training new personnel in SWIFS serology lab practices and scientific concepts. This manual 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 Training Program) 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 after the complaint was brought forward -- after several trainees were constructively terminated from their 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 other trainees, 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 new lot of HemaTrace Blood Cards such will be QC-checked using de-ionized water as the negative control; 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 from the written manual procedure…"

This is a true statement. However, it is impossible to confirm when analysts began deviating from the protocols. It is impossible to ascertain which analysts were deviating from the written protocol. And it is impossible to establish which lab reports may have been affected by the deviation 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 personnel initiating a review of the procedure as required by the laboratory's quality 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 were performed 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 or existence. -- because there is no empirical data. Mr. Wyckoff did not provide an explanation as to why the change in the protocol did not occur during 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 audit failed to find this discrepancy (33). … report in progress … Example 3: SOP states that "condoms should be stored intact (as submitted) in the forensic biology freezer until analysis." Response:

"…The SPM v1.0 SOP uses "should" in the statement of how to store condoms, while the complaint appears to interpret "freezer storage" as a requirement…"

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 the difference between the words "should", "must", and "may", often using the definitions interchangeably 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 are obscured, 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.

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 current SWIFS protocol for storing biological samples -- at room temperature -- these protocols should be addressed immediately. Mr. Wyckoff also fails to mention that the Management of the crime lab actually agreed with this complaint, stating in the August 27-28, 2009 report to ASCLD/LAB (complaint #10, page 15):

“…The Serology Procedures Manual specifies that condoms should be stored in a freezer until analysis…The Institute is in agreement with the Trainee that the manual requires updating to reflect the practices of the laboratory…”

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. There was no previous in-house experimental study for determining the expiration date of the positive control 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 wear lab coat and gloves while analyzing evidence, they are not required to wear devices such as hair nets, 2) serologists do not wear gloves when handling smears, and 3) a fan in the serology laboratory 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 the forensic biology section. No such evidence exists from the review of proficiency tests that SWIFS personnel have taken since March 2008…"

Mr. Wyckoff did not consider that contamination issues would only be found if the Management was actually looking for contamination events and documenting contamination events. This was not the case at SWIFS. As was stated in the March 2009 complaint (12) and re-iterated in the April 15, 2010 memorandum (13) the Management did not obtain a buccal swab (DNA sample) from the complainant to include with an SWIFS Employee DNA database for comparison against unknown 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) and CAR 06-006 (37) he would have noted that both blood and semen contamination events in the lab were 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 have to be traceable, there is no means of discovering accidental contamination events from employees or 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 observed SWIFS serologist manipulating slides/smears without gloves…[if] smears were routinely analyzed for DNA evidence…wearing gloves while 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 was seen with the case of exoneree Larry Charles Fuller (38). (This information was presented in the April 15, 2010 Report to the TFSC from the complainant.) Smears from a Sexual Assault kit were analyzed at SWIFS, stored at SWIFS, and later used for DNA testing which lead to the discovery of the wrongful conviction of Mr. Fuller. (Note: an unknown male DNA profile was found on the smear.) And considering that the Management of the crime lab did not obtain DNA from me during my employment at the lab (and possibly other analysts in the lab), any accidental contamination events 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 during times that evidence was being worked within the laboratory area. Management advised that the fan was in use only during periods that personnel were in the laboratory doing report writing and not while evidence was being analyzed…"

This is factually untrue. Having worked in the lab, I witness on more than one occasion an analyst analyzing evidence while the fan was in use, directly behind the analyst, as it appears in the 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 I witnessed on one occasion Dr. Tim Sliter actually turn the fan off because an analyst was testing items of evidence in front of the fan.

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

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 blow across the bench unnoticed; landing on a second item of evidence of an unrelated case that another analyst is working (and ultimately collected as evidence for the unrelated case). In another example, tiny fingernail clippings could be blown onto the floor, forever lost, without an analyst noticing the lost evidence. As another example, skin cells are very light-weight and undetectable by eye. Mr. Wyckoff did not conceive of these possibilities. Mr. Wyckoff does not explain why the 2008 re-accreditation audit did not recognize this uncondoned quality assurance problem during their inspection. Example 2: Do not use out-of-date or unlabeled chemicals. An expired bottle of sodium perborate 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 false positive results in certain instances. It is for this reason that positive and negative controls are run concurrently with samples at the time of use…"

Mr. Wyckoff's inconceivable interpretation of the scientific purpose of positive and negative controls in his statement is incomprehensible and dangerously assuming. In the SWIFS serology lab, the "positive control" is used to test the chemical reactivity of the LMG 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, the negative 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 source of 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 identifying false 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, and documented 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 validation experiments 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

accreditation, declaring the validation experiments unnecessary. (My attempts to locate validation studies while employed at the crime lab were unsuccessful.) Therefore, for the SWIFS protocols which 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 for false 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 not educate 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 (or Brentamine Reagent) (39a, b, c). Only the positive results are recorded at the top of lab worksheets. 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 forms as "long"…"

This information provided by Mr. Wyckoff is not stated anywhere in any of SWIFS manuals or protocols. Forensic analysts could not have, and would not have, provided this explanation as testimony in a court of law as reasoning for purposely not following SWIFS's written protocols which explicitly state, "do not use unlabeled or out-of-date chemicals" and "follow written laboratory procedures" (40). Without providing the actual reference for his footnote "…(7)various chemistry websites related to sodium perborate, and textbooks on inorganic chemistry…", and without providing a defined time-limit for "long", Mr. Wyckoff's inept reasoning is nonsense.

"…This long shelf-life is further substantiated by the fact that when SWIFS replaced the JTBaker sodium perborate with Fluka sodium perborate, 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 the Fluka chemical bottle, this does not mean there is no expiration date. Fluka/Sigma-Aldrich provides a "Certificate of Analysis" for most chemicals sold that provide their analytical testing details 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 "Recommended Re-Test Date" (42) listed on its Certificate of Analysis. And each date is only valid if the reagent was 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 from shipment 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 the complaint 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 expiration date of the chemical is incontrovertible.

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 the September 2008 Re-accreditation audit (and every other audit) did not find this expired chemical in the serology lab. Mr. Wyckoff then offers this questionable supposition,

"…It seems incongruous that at a time when the serology section attempts to address the situation and the complainant might shed some light on the case, possibly even providing the chemical for testing and confirmation as to whether it will work pass the expiration date, the complainant offers nothing to the discussion…At the least, the complainant appears to be subverting the SWIFS quality assurance process, 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 alerted Dr. 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 chemical was taken after leaving the serology lab ("…removed to chemical disposal…"), per SWIFS procedures (50). Mr. Wyckoff also failed to mention the 11.25.2008 Memorandum written by the complainant and given to the Quality Manager describing the use of the expired JT Baker sodium perborate tetrahydrate (51). Mr. Wyckoff also failed to mention that other forensic analysts attempted to approach Drs. Sliter and McDonald with concerns for the use of expired chemicals in the lab, only to be instructed to perform illogical and unofficial "validation experiments" (52). Mr. Wyckoff also failed to mention Dr. Stacy McDonald's curiously located March 2009 memorandum (not addressed to the lab analysts) declaring the use of an expired chemical "not a Quality 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 mention that expired chemicals and reagents continued to be used in the serology lab many months beyond 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 address the use of an incorrect chemical (sodium perborate monohydrate) (55), purchased for the lab in 1998 (56), and used for at least two months in 2005 for testing items of evidence in the SWIFS serology lab (57) (and unnoticed by every single lab auditor, including internal auditors who knew the wrong chemical was in the lab.). If Mr. Wyckoff had been thorough with his audit, he could have could have inspected the "reagent preparation logs" to address the possibility that this incorrect chemical was used to prepare reagents at other times between 1998 and 2009.

This allegation was also mentioned in the March 2009 complaint (11), but was not addressed by SWIFS. Mr. Wyckoff's statement regarding the expiration dates of chemicals becomes even more dubious considering -- 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 expire according to the manufacturer's listed expiration date, if any". Thus, to put it bluntly, Mr. Don Wyckoff has lied and acted unethically by providing unsubstantiated and unscientific excuses for the reckless acceptance for the use of expired chemicals in the SWIFS crime lab. There were numerous attempts by the complainant and other SWIFS analysts to convince the Lab Management to comply with basic, sound scientific principles. However, SWIFS Lab Management was less than willing to address concerns, and in fact, retaliated against the complainant 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 SWIFS quality assurance process are disgraceful and reprehensible. VII) Closing statements … report in progress …

REFERENCES (1)

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(10)

(11)

(12)

(13)

(14)

(15)

(16)

(17)

(18)

(19)

(20)

(21)

(22)

(23)

(24)

(25a)

(25b)

(26)

(27)

(28)

(29)

(30)

(31)

(32)

(33)

(34)

(35)

(36)

(37)

(38)

(39a)

(39b)

(39c)

(40)

(41)

(42)

(43)

(44)

(45)

(46)

(47)

(48)

(49)

(50)

(51)

(52)

(53)

(54)

(55)

(56)

(57)

(58)

(59a)

(59b)

(59c)

(59d)

(59e)