The two main investigative documents on which the FSC report (pdf) is based are a lengthy investigative report from the Texas Rangers and another from the DPS Office of Inspector General, both of which are included in redacted form as exhibits to the report.
Notably, the commission removed from the final report a quote from the Rangers' investigation in which Mr. Salvador implausibly denied the implications of the evidence against him, declaring, "he has seen too many people go down after admitting that they 'dry-labbed.'" Dr. Sarah Kerrigan, who chaired the investigative panel, herself implausibly tried to differentiate what Salvador did (knowingly using results from a test of one sample to report in a different case) from drylabbing, but I don't see the distinction. I agree with her that Salvador's intent was not to falsely accuse anyone, but for whatever reason it's done, plugging in numbers from a different case and reporting them in the one you're working on to me qualifies as drylabbing by any possible definition. He reported results without running the tests. Dr. Kerrigan thought it significant that Salvador "attempted" analysis before using the numbers from another case. For the purposes of defining "drylabbing," I respectfully disagree.
In any event, a useful table in the draft report breaks out the counties with cases Salvador worked on, demonstrating that most of them were relatively concentrated.
- More than 250 cases: Montgomery, Galveston, Fort Bend, Harris, and Liberty
- 101-250 cases: Brazoria, Chambers, Grimes, Hardin, Jasper, Matagorda, Polk, Walker, Waller, Wharton
- 10-100 cases: Austin, Jefferson, Newton, Orange, San Jacinto, Trinity, Tyler, Washington
- Less than 10 cases: Angelina, Brazos, Burleson, Colorado, Hidalgo, Houston, Jackson, Leon, Madison, Nacogdoches, Sabine, San Augustine, Shelby
Readers will recall the Court of Criminal Appeals has ruled that defendants are entitled to habeas relief either when evidence is not available for retesting or when evidence in the case was ever in Salvador's sole custody, which FSC General Counsel Lynn Garcia pointed out essentially means all his cases. She told the commission about the first habeas hearing on one of these writs in Harris County last week, which the District Attorney hoped would be a test case. It was brought, she said in the court of someone they'd hoped would be a friendly judge, though she didn't say who. The DA's office wanted an evidentiary hearing to determine if - in a case where drugs are available for retesting and they could prove the chain of custody was not violated - could those cases go forward? The judge shut them down, saying the CCA opinions were clear and unambiguous, recommending relief. Going forward, said Garcia, from her conversations with prosecutors it's unlikely the Harris County DA will oppose writs from the Salvador case based on that ruling. "The potential impact of these decisions on convictions obtained in Salvador's cases is difficult to overstate," the FSC report said understatedly.
Dr. Kerrigan expressed particular frustration that the Court of Criminal Appeals was granting relief in cases where the evidence is available for retesting, emphasizing that the problems with Salvador's work involved "quality control," not "property issues." There was one "quality assurance plan" (QAP) related to property matters coming out of the case which she characterized as relatively "benign." But, as the Texas Tribune reported, my boss at the Innocence Project of Texas, Jeff Blackburn told the commission that the most likely reason for handling it that way was "judicial economy." Habeas corpus is a process designed for individuals and courts don't have the resources for adjudicating on a case by case basis an episode involving thousands of potentially viable claims. Usually "judicial economy" is a factor that works in the prosecution's favor; in this case it's worked the other way.
The report chronicles Salvador's many problems, and a few of his strengths, as a crime lab employee, which are well-detailed in the AP account and this earlier Grits post. Perhaps the most startling stat in the report was that one in three of Salvador's cases were sent back for corrections, whether for scientific or clerical mistakes. His supervisors interpreted that level of error, which was several times higher than his peers, as meaning he was on the edge between satisfactory performance and "needs improvement." Though DPS should be lauded for reporting the episode and appears to be upgrading their personnel policies in light of this awful lapse, it's also true that tolerating that level of incompetence for so long is an indictment, in retrospect, of DPS management practices. The incident would not have been discovered through DPS' regular tech review and auditing procedures.
The report quoted one of Salvador's coworkers declaring he "just made so many mistakes." Further, "More than one examiner shared concerns about Salvador's high error rate and lack of understanding of the chemistry with the drug section supervisor." Indeed, the "Issues with Salvador's work were described as 'fairly systemic.'" Even so, "management made good faith efforts to help Salvador improve and were completely shocked that Salvador would ever use evidence from one case to support the results in another," said the report. Dr. Kerrigan noted that scientists performing his "tech reviews" would frequently wonder why Salvador had used this or that procedure and opined that they'd have used a different technique. The common denominator, she said, was that he always chose the easiest test, seeking the path of least resistance. However, she emphasized, it would be problematic to mandate what procedures should be used. The need for flexibility is why crime labs must hire scientists instead of mere "technicians," she said.
Salvador was promoted despite concerns about his competence because "promotions at DPS are standard based on years of service and [his supervisor] did not feel it was appropriate to deny a promotion unless the person was totally inept, which Salvador was not. There was perception that forensic scientists at DPS are paid below their peers in the field and thus they try not to deny people salary increases," said the report. Further, "it was extremely difficult to discipline or terminate an employee in the DPS system. During Director [Steve] McCraw's tenure, greater efforts have been made to re-vamp the evaluation system and roll out new evaluation procedures. Management will begin using a new evaluation form in the next evaluation cycle beginning at the end of 2013."
Among the FSC's recommendations were that crime lab "adopt random re-analysis policies (beyond technical review), informing examiners their cases may be re-evaluated 'from scratch' at any time." They also suggested greater rigor in evaluating employees during the initial probation period and lamented the impact of "compassion" by supervisors toward underperforming employees given the enormous impact of tolerating Mr. Salvador's alleged incompetence for so many years.
It's worth mentioning that, if the Forensic Science Commission didn't exist, the extraordinary implications of this episode relating to thousands of convictions would have never become fully known. DPS would have still reported the incident to their accrediting body, crime lab chief Pat Johnson emphasized, but the FSC is the only vehicle for that information to ever get out in a public forum. And the ability of the FSC to pull together stakeholders, from DPS itself to prosecutors and the defense bar, has meant that Texas' response to this episode, however flawed, has been more prompt and thoroughgoing than a similar (even larger-scale) episode currently ongoing in Masschusetts, said FSC general counsel Garcia, adding that she'd received numerous communiques from officials in the Bay State seeking to understand how Texas is handling the Salvador situation. Chairman Vincent DiMaio said that these episodes suggest the need for "disaster protocols" for similar, future crime lab implosions that may crop up as the forensic sciences receive greater scrutiny in the coming years.
See prior, related Grits coverage of the Salvador fiasco.
- 17 and counting: Texas Tribune on DPS crime lab scandal
- CCA habeas roundup: Four more free from DPS crime lab debacle, an actual innocence writ on pot possession, and death sentence overturned
- Fort Bend DA failed to notify defendants of misconduct by DPS lab worker
- The Weakest Link: TDCAA agrees nearly 5,000 cases 'may be jeopardized' by DPS lab worker misconduct
- Thousands of drug cases may be overturned because DPS lab worker allegedly faked results
- DPS crime lab SNAFU may overturn thousands of years worth of drug sentences
- Convictions overturned based on DPS lab worker misconduct, hundreds more likely to be challenged
- Bad apple at DPS crime lab could spoil barrel of convictions
- DPS analyst who faked results worked on 4,944 drug cases
- Drug analyst at DPS crime lab issued erroneous reports