Saturday, July 28, 2012

No charges for lab worker drylabbing in Tarrant

The Tarrant County District Attorney will not impanel a grand jury to evaluate the actions of a lab worker in the medical examiners office who allegedly reported negative test results from at least five rape kits without having ever opened most of the evidence, the Forensic Science Commission was told yesterday by their general counsel Lynn Robitalle. (For whatever reason, I've not seen any press coverage of this episode besides a couple of mentions on this blog.)

The lab worker had failed to perform tests on five rape kits where the offense report said no penetration had occurred, simply reporting falsely that the tests came up negative without actually doing them. Dr. Sarah Kerrigan said she'd closely examined the reports themselves for any ambiguity, but the analyst had clearly listed all the unopened items of evidence specifically as having been tested.

There was some confusion as to whether the lab worker was allowed to resign instead of being fired for cause, but in any event, there apparently will be no legal consequences beyond termination of employment. The FSC found that this "drylabbing" episode amounted to "professional misconduct," though the finding brings with it no substantive punishment.

This type of fraud cannot be caught through regular "tech reviews," the commission was told, and as a result the Tarrant ME will begin doing periodic audits of case work in addition to tech reviews.

FSC members praised the Tarrant Medical Examiner's Office - which is run by Dr. Nizam Peerwani, a commission member who was not present at the meeting - both for diligently vetting the lab worker's old cases and for self-reporting the violation when it was discovered. But it's also notable that the commission didn't interview the employee in question because the Tarrant ME wouldn't give them his contact information. Robitaille said the former employee had told the Tarrant ME he didn't remember the cases in question. FSC Chair Vincent DiMaio said it may have been just as well, noting that 'Anyone with any intelligence would not talk to you," anyway.


Anonymous said...

Was there no reason given for the Tarrant County lab tech's dry-labbing? Or is the public to assume that the lab tech was forced to quickly produce the lab reports by his/her supervisors in order to lower the sexual assault kit backlog for the lab?

Did they invite ex-lab analyst Debra Stephens to speak regarding the APD complaint? How about the other lab tech from the APD crime lab who was found to have taken shortcuts?

"Anyone with any intelligence would not talk to you."
Did he really say that? Should we remind him that Peerwani talk to the Commission about the disclosure?
Way to encourage open communication in the forensic community, Zain!
I mean...DiMaio!

Anonymous said...

Vincent DiMaio and the Bexar County ME's office needs to be investigated. Read the Ytuarte v. Bexar County case filed in Travis....Cause No. 94-13954 Violations of the labaoratory while under his authority include: falsification of reports, falsifying evidence, misrepresenting work........sound familiar? This has been going on for decades folks.

PAPA said...

How much did this lab cost TAXPAYERS in criminal justice fees, courts,attorneys, das, jails, prison,wrongful convictions, parole,etc.????

tony b said...

how can this not be a criminal offense?

dfisher said...

Until someone in the media opens their eyes and researches the law, the TX criminal justice system will continue to be mostly criminal...on the State's part, especially the Governor.

A little tutorial is need here.

The Forensic Science Commission was created under TX Code of Criminal Procedure, Art. 38.01.
Under the article the Gov. Appoints 4. of the members,

2. Must have expertise in the forensic sciences,

1. A defense atty. and

1. A prosecuting atty.

If you go the TX Forensic Science Commission's official web site, under members, you will find Gov. Perry appointing 5. of the 9. members.

The LT. Gov who under the statute is to appoint 3. members, but shows only 2 appointments.

Of the 5. Gov. appointments, 2. are acting county medical examiners (Dallas & Tarrant Counties) and 1. is a retired ME.

Here's the first problem, medical examiners are not experts in the forensic sciences under the TX Code of Criminal Procedure, Art. 49.25, they are acting "Judges" and are required to qualify under Art. XVI 16, Sec. 1. Of the TX Constitution.

Second problem, if you appoint a Judge to a commission tasked with reviewing evidence presented in a criminal case, then their finding are "Judicial Finding" carrying the weight of law. They are not simple opinions of an expert.

Third problem, Medical Examiners under the statute are to required to conduct "Inquest", which is a judicial proceeding to determine if a death was caused by a criminal act. Medical Examiners are not allowed under the statute to perform autopsies, unless it is in connection with an inquest and all inquests must end with an inquest report being filed. An autopsy report doesn't qualify as an inquest report. None of the three ME members of the commissions conducts inquest, yet all three ME’s offices filed briefs with the 1st Court of Appeals in 2008, claiming the were judicial officer tasked with conducting Inquest.

Fourth problem, the 2. Acting medical examiners on the commission (Dallas & Tarrant CO.) are actually independent contractors; they cannot be county appointed officers with powers of the judiciary. And since the former Bexar Co. ME DiMaio never qualified under the TX Constitution by filing the Anti-bribery Statement or taking the Oath of Office, all his work, as well as that of the 2. other ME’s, makes them the poster children for what the Forensic Science Commission is to ferret out and stop.

Fifth problem, the prosecuting atty. Perry appointed to the Forensic Science Commission is from Tarrant Co. and that DA’s Office has been telling the press since 1996, that Peerwani is an “Independent Contractor” and not subject to the Open Record Act.

This is the same DA’s Office that has decided not to charge the employee of the Tarrant Co. ME’s Office, but wait, Tarrant CO. can’t have a ME’s office since the ME is an Independent Contractor and the Tarrant CO. DA’s acts as the Tarrant CO. Atty. who is complicit in all criminal acts flowing from the illegal ME’s office.

Bottom line here is the current makeup of Forensic Science Commission is in violation of the statute, being staffed by some members whose reports and testimony are what the commission is tasked with exposing, and the Governor, in violation of the statute is illegally controlling the commission thru his appointments. In MY opinion.