Saturday, April 06, 2013

On Defining 'Drylabbing': More from forensic commission meeting on DPS crime lab debacle

Grits has already provided links to the Associated Press and Texas Tribune coverage of yesterday's Texas Forensic Science Commission meeting to complete their final report on the DPS-Houston crime lab scandal involving since-resigned lab analyst Jonathan Salvador. Read those, because I won't be repetitive, but let's look at a few tidbits from the commission's meeting and final report that the MSM articles didn't explore:

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
The final report will include exact numbers for each county. Some of these DA's offices, she said, are very small - a few with just a couple of employees and no email account - and the logistics of those agencies processing significant numbers of habeas writs will be problematic.

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.


Anonymous said...

"...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..."

No mention of how Salvador passed his competency testing during his training. No mention of how Salvador passed his annual proficiency tests (at least 4 of them). (Did he cheat, or did his trainers let it slide?)

No questioning of the competency of the trainers who instructed Salvador. (Perhaps the trainers didn't understand the science and were teaching incorrect principles.)

No questioning of the competency of the Supervisors, other than their "compassion" (slap on the wrist).

Each of those actions has associated documentation. Were these documents misleading or fraudulent? (Illegally so)

How many of other lab analysts were trained by these "compassionate" trainers and supervisors?

No mention of ASCLD/LAB's responsibilities in all of this. (Could this be this because many of the Forensic Science Commissioners rely on ASCLD/LAB for accreditation of their own labs? You can't bite the hand that feeds.)

Yet again, the FSC has taken the path of least resistance, blaming only the "bad apple" (which was already done when he was fired.). They failed to find the root cause of Salvador's errors.

Anonymous said...

17:00 said:

"They failed to find the root cause of Salvador's errors."

I must be missing something here. Salvador engaged in obvious misconduct. When they became aware of the behavior, both his coworkers and his managers correctly recognized what he did as misconduct and acted appropriately. It seems pretty clear that the root cause in this case was one person acting badly, and acting contrary to the expectations of his employer. The root cause was unethical behavior by an individual, and was unrelated to any issue of training or competency.

Anonymous said...


Please tell us that you are posting egregiously ignorant comments anonymously in order to stir debate.

Otherwise, to 4:11pm-
Did you even read the report Grits posted? How about the media reports? Remove the blinders and take in ALL the information.

And I'll remind you that the DPS is government. The "employer" is the tax payer. I would submit that DPS acted contrary to the expectation of the tax payer. Thus, the DPS should be removed from employment.

Anonymous said...

5:09 -

Salvador's misdeeds were a matter of ethics, not competency. Because he appears to have been both marginally competent and unethical, it is tempting to associate those characteristics. However, that is a false conflation. There are lots of marginally competent people who would never think about behaving unethically. And by all accounts there are plenty of very competent people who find it easy to behave unethically despite their competence. That's like confusing the inability to spell correctly with plagiarism. So how Salvador managed to pass proficiency tests is really irrelevant, since it has nothing to do with the core issue of ethics. And the last time I checked, there was no provider of proficiency tests in ethics.

Anonymous said...


In this case, the two characteristics are not mutually exclusive (competency and ethics). They are cause and effect.

The FSC's investigation wasn't based around a competently trained analyst who acted unethically (without motive). The DPS knew that he was not competent. "...interviews with colleagues supported the conclusion that the employee "struggled with corrections and an overall understanding of the chemistry, especially in difficult cases..."

In this case, his incompetency (perhaps from being poorly trained) lead him to make an unethical decision in attempt to do his job. Arguably, if he was properly trained, there would be no motive for behaving unethically. (From the Texas Ranger's Report, there was no nefarious motives identified for his unethical act.)

So the question is "Why was he incompetent? What was the root cause for his incompetency?"

If Salvador had been properly trained, he might not have acted unethically. But in order to test this hypothesis, a real investigation would have to look into his past proficiency testing and competency tests and the competency of the trainers who trained Salvador. (This is to assume that "Proficiency Tests" really test the proficiency of an analyst under "normal" work conditions and are not superficial to an imaginary and idealistic working scenario -- which they are.)Salvador's work history at DPS is entirely relevant to Salvador's incompetency, thus his unethical misdeeds.

If anything, the DPS Supervisors acted unethically by allowing him to continue working for 5 years without providing him the proper training to do the job, knowing that he was incompetent, knowing that he would perhaps one day disregard ethical behavior to get the job done. Should they have expected any other outcome?

You stated, "...And the last time I checked, there was no provider of proficiency tests in ethics..."

Yes, but there are Continuing Education Classes on ethics in the forensic field, some are online, some are free. Moreover, as part of Salvador's training, he should have been instructed on ethics as they apply to his job.

Was he given this training?

Anonymous said...


DPS lab staff must attend annual continuing education in ethics, fwiw. Even without that, the argument that he didn't know it was wrong and isn't accountable seems a bit strained.

Anonymous said...


There was no argument "that he didn't know it was wrong and isn't accountable". The argument was that Salvador had motive for performing unethically. That is, he wasn't trained properly (scientifically) for the job he had. If he wanted to keep his job, he had to fudge the data.

There were other actors (DPS supervisors) that drove Salvador to act unethically. They failed to train Salvador. They TOO should be held accountable for creating the situation. How many other "Salvador-like" analysts have the DPS Supervisors created?

Anonymous said...

The whole idea that DPS "created" Salvador and "drove" him to behave unethically seems more than a bit far-fetched to me.

By all accounts, the worst that can be said for DPS is that they tried too hard to help him be successful, and were in the end too accommodating of his deficiencies. From what I have read, no one is claiming that he was abjectly incompetent, but that his performance in some areas was at a lesser level than other analysts. If he had made mistakes that were the result of poor skills, then finding fault with his training, competency testing, etc., might be warranted. But that wasn't the problem here. The problem was an ethical failing that was his, and his alone.

Anonymous said...

How has no one realized this? The DPS Supervisors paid and promoted Salvador to get the "erroneous" results which would win convictions. This is how Salvador went go so long without getting caught. Let's not forget that it was his co-workers that caught the "error", not the DPS Supervisors. They should re-name the "Supervisor" position as "SpaceWaster".

Salvador won't admit to being criminal, but might admit to being incompetent.
DPS Supervisors won't admit to being criminal, but might admit to being "compassionate" towards his incompetency.
Awww, what a Hallmark Moment.

All the State Actors can say is "oops".

And all the Defendants get convicted based on this "oops".

Anonymous said...

Did anyone notice the oddly-out-of-place and overlooked statement,

"...He [Salvador] attempted another analysis [for alprazolam] on the instrument assigned to Forensic Analyst Amanda Ramons. The GC data from this analysis shower contamination from other compounds such as cocaine and heroin..." (page 55 of the OIG2012-0087 REDACTED report)

Did Amanda Ramos not clean her analytical instrument properly? Was Amanda Ramons another shoddy DPS analyst? Should DPS look into her work product? Was anything done?

Anonymous said...

She was promoted to Supervisor.

Anonymous said...

9:55 said:

"How has no one realized this? The DPS Supervisors paid and promoted Salvador to get the "erroneous" results which would win convictions. This is how Salvador went go so long without getting caught. Let's not forget that it was his co-workers that caught the "error", not the DPS Supervisors."

I have an alternate theory:

Salvador was raised by drug cartel members, who arranged to give him the education and training so that he would become a mole in the DPS lab, where he could strategically sabotage drug testing operations at a critical time, thereby bringing about the release of certain critical cartel members camouflaged among thousands of other drug offenders.

Anonymous said...

Anon. 12:38 (or shall I call you DPS crime lab chief Pat Johnson)-

Not anymore far-detched than to assume that one day, without motive, Salvador decided to act unethically.
Perhaps the DPS Supervisors were teaching Salvador to be successful at being unethical.

You stated, "...By all accounts, the worst that can be said for DPS is that they tried too hard to help him be successful, and were in the end too accommodating of his deficiencies..."

Which accounts are you referring to?
"...crime lab scientist whose shoddy work may have tainted thousands of drug cases had been promoted despite a history of problems doing accurate and timely work..."(Associated Press)
"...Salvador struggled with chemistry, was told to correct his work in about a third of his cases and, according to his supervisors..."(Associated Press)

How exactly were they trying to help Salvador?
Did the DPS Supervisors re-train Salvador? Nope.
Did the DPS Supervisors demote Salvador to a lower position with less responsibilities? Nope.
In fact, DPS Supervisors promoted Salvador, gave him a pay raise. Did DPS Supervisors actually used positive reinforcement to encourage his shoddy work? Yep.
You've assumed that the DPS Supervisors were ethical. You've assumed that the DPS Supervisors were competent.
The DPS Supervisors allowed this shoddy work to persist for 5 years.
They hid his shoddy work from Defense Attorneys (aka Brady Violations, if not unethical).
As such, they should be penalized for being "too accommodating".
They certainly weren't compassionate or accommodating to the defendants.

Anonymous said...

I find this vast conspiracy theory pretty laughable, even in its simplest form. But when you add in the necessary involvement of the Texas Rangers and the OIG, then it becomes downright ludicrous. As they say back home, that's a dog that don't hunt.

Anonymous said...

@Anonymous @4/11/2013 11:28:00 AM
The dog does hunt. It also breeds.

Don't suspect a conspiracy when simple moral panic and hysteria will do, especially if combined with a law enforcement and judicial system that seeks convictions at any price. Like other aspects of government, Justice in Texas has become a Self- Licking Ice Cream Cone

Read Marian Hoy's book to see why people like Salvador are tolerated and encouraged:
Falsely Accused: After 31 years of law enforcement service, a former Texas police officer explains the shambles of the American criminal justice system-and how to prevent becoming its victim.