Travis County District Attorney's Office April 3, 2012 Rosemary Lehmberg District Attorney Public Integrity Unit

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1 Travis County District Attorney's Office April 3, 2012 Rosemary Lehmberg District Attorney Public Integrity Unit Travis County District Attorney's Office Gregg Cox Special Prosecution Division P.O. Box 1748 Austin, TX Dear Travis County District Attorney's Office- The following information is being directed to you in the interest of the public's safety and expectation of a State agency's responsibility for adhering to the laws of the State of Texas. This letter contains information which, in good faith, is believed to describe the violations of state laws and/or ethical violations by collusion of the following government agencies: the Texas Department of Public Safety (DPS), the Texas Forensic Science Commission (FSC), and Dallas County Southwestern Institute of Forensic Science (SWIFS) Crime Laboratory. Also involved is the non-governmental agency the American Society of Crime Lab Directors/Laboratory Accreditation Board (ASCLD/LAB). These violations are in relation to the statutorily assigned investigative authorities and responsibilities to each of the above entities (and by proxy, the accreditation agency ASCLD/LAB). These include, but are not limited to, violation of conflict of interest laws (and/or bribery of state officials), the conspiracy to suppress evidence, tampering or falsification of government documentation, conspiracy to suborn false or perjurous (expert) witness testimony, evidence tampering, and official oppression and/or abuse of official capacity. Because the FSC holds quarterly meetings in Austin, Texas (permanently as of October, 15, 2010), and involves the participation of each of the entities listed above, the alleged illegal incidents described herein occurred in Travis County -- your jurisdiction. It is the legal responsibility of the FSC and the DPS (by proxy, the accreditation agency ASCLD/LAB) to each perform, independently and impartially, a full and thorough investigation in response to a submitted complaint regarding the unreliable scientific methodology and poor practice of evidence handling, preservation, and analysis for use in criminal prosecutions and post-conviction testing. In addition, it is the legal responsibility for any State agency to forward received exculpatory materials to relevant authorities for use in criminal proceedings. It is believed, however, that these agencies instead have conspired to cover-up, dismiss, and suppress evidence depicting scientific misconduct and illegal activities from inside the Dallas County SWIFS Crime Laboratory. 1

2 The impetus of this letter stems from the discovery of alleged conflicts of interest (financial contracts) between members of the FSC and Dallas County SWIFS Crime Laboratory during the FSC's investigation of the Crime Laboratory. At least two members of the FSC entered into "business relationships" with Dallas County and the Dallas County SWIFS Crime Laboratory after the FSC initiated an investigation towards allegations of scientific negligence and misconduct within the Crime Laboratory. The FSC also assigned the accreditation agency ASCLD/LAB to investigate the Dallas County SWIFS Crime Laboratory. However, ASCLD/LAB already had an ongoing established "business relationship" with the Crime Laboratory. In addition, the accreditation agency ASCLD/LAB had an ongoing established "business relationship" with at least two members of the FSC. Included herein is a diagram which illustrates the "business relationships" between the FSC Members, Dallas County SWIFS Crime Laboratory, and the accreditation agency ASCLD/LAB (REF. 1). These "business relationships" constitute a violation of Texas Conflict of Interest Laws as they are defined in Government Code 572, Local Government Code 171, Local Government Code 176, and further clarified in prior Texas Attorney General's Opinions GA-334, GA-0446, and JM-379. These longstanding and unacknowledged conflicts of interest can be directly related to the subsequent allegedly illegal decisions and actions by all parties involved. Unaddressed, these conflicts of interest may be construed as acts of coercion and bribery. Numerous s and letters sent to the FSC addressing these concerns of the public have been subsequently ignored by the FSC. The FSC has refused to take steps to assure the public of their honesty and integrity. When queried, the Texas Ethics Commission (TEC) stated that they specifically are exempt from accepting complaints related to Government Code (REF. 39). Thus, this report is being sent to the Travis County District Attorney's Office for address. A brief background description and a timeline of events has been provided detailing the decisions and alleged illegal actions taken for each agency (as known to the public). I am willing to clarify if assistance is necessary. Sincerely, Christopher Nulf, Ph.D Main Street, Unit 605 Dallas, Texas

3 BACKGROUND The Texas Forensic Science Commission In May 2005, the Texas Legislature passed House Bill 1068 (the "Act") which created the Texas Forensic Science Commission (FSC) by amending the Code of Criminal Procedure to add Article (REF. 2). See Act of May 30, 2005, 79th Leg., R.S., ch. 1224, 1, In these pages, Article sets forth the composition and authority of the FSC as they relate to investigations into allegations of scientific misconduct and negligence inside crime labs. In brief, the statute states: Sec. 4. DUTIES. (a) The commission shall...(3) investigate, in a timely manner, any allegation of professional negligence or misconduct that would substantially affect the integrity of the results of a forensic analysis conducted by an accredited laboratory, facility, or entity. (emphasis included 1,2 ) The Act took effect on September 1, No changes have been made since that date. The Texas Attorney General provided legal clarification to the FSC's investigative authority on July 29, Composed of 7 scientists and 2 attorneys, the FSC has open public meetings approximately 4 times annually with meeting agendas and meeting minutes posted online for the public. Prior to October 15, 2010, the FSC Meetings varied in location throughout Texas. On October 15, 2010, and thereafter, all FSC Meetings took place in Austin, Texas. The FSC home webpage with numerous internal links related to FSC business is: Pursuant to their duties as FSC Members (REF. 2), investigations by the FSC may lead to discoveries of acts of scientific misconduct within a crime lab which could include, but are not limited to, shoddy analysis of evidence related to poor scientific methodology, contamination of evidence, creation of fraudulent lab reports, and misleading expert witness testimony proffered for the prosecution of defendants. Depending on the egregiousness of the misconduct discovered, a large number of previously adjudicated criminal cases could be compromised including discovery of wrongful convictions of 1 Of importance, as it relates to the statutory responsibilities but contradictory actions of the FSC, the Texas Supreme Court has observed, "[T]he truest manifestation of what legislators intended is what lawmakers enacted, the literal text they voted on. [The] enacted language is what constitutes the law, and when a statute's words are unambiguous and yield a single inescapable interpretation, the judge's inquiry is at an end." Alex Sheshunoff Mgmt. Servs. v. Johnson, 209 S.W.3d 644, (Tex. 2006). 2 The definitions as referenced in Texas Government Code (2) "Shall" imposes a duty. 3 Attorney General's Opinion GA-0866, available online at Of importance, "... the FSC may investigate allegations arising from incidents that occurred prior to September 1, 2005, it is prohibited, in the course of any such investigation, from considering or evaluating specific items of evidence that were tested or offered into evidence prior to that date..." (emphasis included to differentiate between "evidence" and "incidents".) 3

4 innocent defendants, constitutional civil rights violations, and at worst, State-sanctioned execution of the innocent. Also important, many of the federally funded forensics-related grants require a State to have a government agency tasked with investigating allegations of scientific misconduct and negligence within their crime laboratories 4. The FSC is often listed as such. Attorney John Bradley was appointed to the FSC Chair on September 2009 by the Governor 5, replacing the former FSC Chair Sam Bassett (REF. 3). Mr. John Bradley, along with Dr. Arthur Eisenberg and Dr. Nizam Peerwani, comprised the 3-member FSC Complaint Screening Committee (CSC) created on January 29, 2010 as part of the "FSC Policies and Procedures". Their assignment to the CSC occurred during the April 23, 2010 FSC Meeting in Irving, Texas. The functions of the CSC include, in part, collection of preliminary information related to a complaint and whether the complaint addresses a forensic analysis subject to investigation by the FSC. The chair of the CSC shall present the complaints before the full FSC with a recommendation to dismiss the complaint, accept the complaint and submit for action by an Investigation Panel, or take such other action as appropriate 6. As a lawyer and as a part of his state licensing, Mr. John Bradley is also subject to special canons of ethics, the "Texas Disciplinary Rules of Professional Conduct" 7. In basic terms, these rules require that a lawyer advise his or her clients (or represented organization) of any potential conflict of interest that the lawyer may have in his representation of a client 8. The lawyer must also avoid any action that would compromise the interests of his or her client. A lawyer shall not assist or counsel a client (or represented organization) to engage in conduct that the lawyer knows is criminal or fraudulent 9. Also within these ethics is a lawyer's responsibility to be truthfulness in statements to others 10. Specifically, a lawyer shall not knowingly make a false statement of material fact or law to a third person 10 or engage in conduct involving dishonesty, fraud, deceit or misrepresentation 11. Mr. John Bradley violated these Rules and more during his leadership as Chair of the FSC. 4 For example, see the Coverdell Forensic Science Improvement Grants Program, "Special Guidance on Certification Regarding External Investigations into Allegations of Serious Negligence or Misconduct", 5 Texas Code of Criminal Procedures, Art , Sec. 3(a)(1)(A). 6 FSC Policies and Procedures "Texas Disciplinary Rules of Professional Conduct", available online at: 8 Ibid., Rule Ibid., Rule 1.02 and Rule Ibid., Rule Ibid., Rule

5 Ultimately, the Texas Senate did not confirm Mr. Bradley's appointment as Chair of the FSC in March 2011 due to perceived biased remarks 12, stalling of a highly publicized ongoing FSC investigation 13, and violations of the Texas Open Meetings Act during an FSC Meeting headed by John Bradley in Harlingen, Texas 14. Mr. John Bradley was replaced by FSC Member Dr. Nizam Peerwani in July 2011 (see below). Dr. Arthur Eisenberg was appointed to the FSC as a Commission Member in October 2006 by the Attorney General 15. He is a current member of the FSC (REF. 3). Dr. Eisenberg, along with Attorney John Bradley and Dr. Nizam Peerwani, comprised the 3- member FSC Complaint Screening Committee (CSC) created in January 29, 2010 as part of the newly created FSC "Policies and Procedures". Their assignment to the CSC occurred during the April 23, 2010 FSC Meeting in Irving, Texas. Dr. Arthur Eisenberg is also the Department Chair of Forensic and Investigative Genetics at the University of North Texas Health Science Center of Fort Worth (UNTHSC) 16, a state agency which may provide forensic DNA-related services to outside agencies. However, as an FSC Member, while performing in an investigative capacity into allegations of scientific misconduct in the Dallas County SWIFS Crime Laboratory, Dr. Arthur Eisenberg entered into a financial contract ("business relationship" 17 ) with Dallas County (REF. 4). At no time did Dr. Arthur Eisenberg acknowledge the conflict of interest or refrain from "participation" 18 during the numerous FSC Meetings subsequent to the contractual agreement with Dallas County. Dr. Nizam Peerwani was appointed to the FSC as a Commission Member in December 2009 by the Governor 19. On July 1, 2011, Dr. Nizam Peerwani was appointed to Chairman of the FSC by Governor Perry 20 after Prosecutor John Bradley failed to be confirmed by the Texas Senate. Dr. Nizam Peerwani is currently the FSC Chairman (REF. 3). Dr. Peerwani, along with Attorney John Bradley and Dr. Arthur Eisenberg, 12 "Lawyer: Texas Arson Case Prosecutor Shows Bias", 13 "The Willingham Probe Takes a Remarkable Turn", by Dave Mann, Texas Observer, September 17, 2010, 14 "Panel examining executions in Texas bars film crew", 15 Texas Code of Criminal Procedures, Art , Sec. 3(a)(3)(A). 16 https://profile.hsc.unt.edu/profilesystem/viewprofile.php?pid= &onlyview=1. 17 As defined in the Texas Attorney General's Opinion GA-0446, Local Government Code 171 and From the Texas Attorney General Opinion of JM-379 regarding the definition of "participation" [referencing Graham v. McGrail, 345 N.E.2d 888 (Mass.1976)], "...We agree with the judge that this definition encompasses more than the act of voting. To preside over a vote is to participate in it, and it is clear that two of the individual defendants presided over some of the contested votes while purporting not to participate. Moreover, there is every indication that during the 'work sessions' they participated in other ways in the contested matters. To participate in the formulation of a matter for vote is to participate in the matter. Ordinarily, the wise course for one who is disqualified from all participation in a matter is to leave the room..." 19 Texas Code of Criminal Procedures, Art , Sec. 3(a)(1)(A). 20 Texas Code of Criminal Procedures, Art , Sec. 3(c). 5

6 comprise the 3-member FSC Complaint Screening Committee (CSC) created in January 29, 2010 as part of the "FSC Policies and Procedures". Dr. Nizam Peerwani is also a consultant for Anatomic and Forensic Pathology Consultants, PLLC, which provides services for independent forensic expertise to outside agencies. However, as an FSC Member, while performing in an investigative capacity into allegations of scientific misconduct in the Dallas County SWIFS Crime Laboratory, Dr. Nizam Peerwani entered into a financial contract ("business relationship") with Dallas County (REF. 5). At no time did Dr. Nizam Peerwani acknowledge the conflict of interest or refrain from "participation" during the numerous FSC Meetings subsequent to the contractual agreement with Dallas County. Dr. Nizam Peerwani also serves as the Chief Medical Examiner of Tarrant County, operating the Tarrant County Criminalistics Laboratory and the Forensic Toxicology/Drug Chemistry Laboratories have "business relationship" with ASCLD/LAB for the accreditation of the crime laboratories (REF. 10, 11). At no time during any FSC did Dr. Peerwani disclose his "business relationship" with the accreditation agency ASCLD/LAB, the sole agency assigned by the FSC to investigate the complaints against Dallas County SWIFS Crime Laboratory. Dr. Sarah Kerrigan was appointed to the FSC as a Commission Member in December 2007 by the Attorney General 21 and is a current FSC Member (REF. 3). Dr. Sarah Kerrigan also serves as the Director of the Sam Houston State University Regional Crime Laboratory which has a "business relationship" with ASCLD/LAB for accreditation (REF. 12). At no time did Dr. Kerrigan disclose her "business relationship" with the accreditation agency ASCLD/LAB, the sole agency assigned by the FSC to investigate the complaints against Dallas County SWIFS Crime Laboratory. Attorney Lynn Robitaille was hired by the FSC to serve as General Council providing legal assistance to the FSC in December Prior to that, Attorney Barbara Dean of the Texas Attorney General's Office provided (unpaid) the FSC with legal guidance for their actions and decisions, and was present at all FSC Meetings. As a lawyer and part of her state licensing, Ms. Lynn Robitaille is also subject to special canons of ethics, the "Texas Disciplinary Rules of Professional Conduct" 22. As an employee of the FSC, and under the leadership of attorney John Bradley, Ms. Lynn Robitaille violated numerous Rules of ethics, including the failure to report the ethical misconduct of Attorney John Bradley 23 during his tenure as Chair of the FSC. 21 Texas Code of Criminal Procedures, Art , Sec. 3(a)(3)(B). 22 Ibid. footnote Ibid. footnote 7, Rule

7 The Dallas County Crime Lab The Dallas County Southwestern Institute of Forensic Sciences (hereafter, Dallas County SWIFS) has two divisions: The Office of the Medical Examiner and the Crime Laboratory. The Crime Laboratory was established by the Dallas County Commissioners Court in a joint effort with the University of Texas Southwestern Medical Center (UTSWMC). The Crime Laboratory provides fee-for-services primarily in the Dallas County area of Texas and adjacent regions. The Crime Laboratory provides forensic services in the disciplines of Controlled Substances, Toxicology, Biology, Firearms/Toolmarks and Trace Evidence. Dallas County SWIFS Crime Laboratory was accredited by The Texas Department of Public Safety in 2003 and 2008 (and, by proxy, ASCLD/LAB see below) (REF. 6). The director of Dallas County SWIFS is Dr. Jeffery Barnard, who was appointed to the FSC as a Commission member in October 2011 (REF. 40). Christopher Nulf, Ph.D. (this author), was employed at the Dallas County SWIFS Crime Laboratory from March 2008 to May I submitted an anonymous complaint report to the FSC and DPS using the pseudonym on March 16, 2009, alleging scientific misconduct and negligence along with non-compliance to accreditation standards within the Dallas County SWIFS Crime Laboratory (REF. 13). In early May 2009, I was terminated from employment from Dallas County SWIFS Crime Laboratory. The anonymous complaint report was abandoned by the DPS. The FSC assigned the anonymous complaint report as Complaint # I also sent several unsolicited memorandums, s, and queries to the FSC related to the initial complaint over a 2 ½ year period. was a second anonymous complainant whose identity is still unrevealed. This person submitted a complaint Report to the FSC in December 2010 (in the form of a PowerPoint presentation) (REF. 26). The FSC acknowledged receipt of the submitted complaint report, but did not assign an FSC complaint number to the Report and did not respond to any of the allegations within. The FSC did not require the Dallas County SWIFS Crime Laboratory to respond to any of the allegations. The FSC did not require the accreditation agency ASCLD/LAB to respond to any of the allegations. The FSC did not forward this complaint Report to any of the necessary agencies for criminal proceedings. The FSC has, in effect, secreted this complaint report. The Texas Department of Public Safety In addition to providing forensic services for crime-related evidence submitted by law enforcement agencies across Texas, the Texas Department of Public Safety (DPS) is responsible for providing, and monitoring, accreditation status of all public and private 7

8 crime labs in the State of Texas. A laboratory or other entity (public or private) conducting forensic analysis of physical evidence must be accredited by DPS in order for that laboratory's evidence or analyst testimony to be admissible in a criminal proceeding 24. A laboratory may apply to the DPS Director for statutory DPS accreditation if accreditation is required for evidence admissibility 25. In order for a laboratory or other entity to receive full DPS accreditation, the laboratory must first be accredited by a recognized accrediting body. The American Society of Crime Lab Directors/Laboratory Accreditation Board (ASCLD/LAB) is a recognized accrediting body (see below). D. Pat Johnson, the Deputy Assistant Director of the DPS Crime Laboratory (Austin, Texas) is responsible for state-wide crime laboratory accreditation oversight and may provide on-site audits as a means of investigating reported allegations of a crime lab's non-compliance to accreditation standards 26. The complaint report sent by the anonymous (Dr. Christopher Nulf, Ph.D.) to the DPS on March 16, 2009 (and addendum sent on March 31, 2009) was abandoned by the DPS. The American Society of Crime Lab Directors/Laboratory Accreditation Board The American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) is a private, non--governmental agency that oversees a program in which any crime laboratory may participate to demonstrate that the crime laboratory's management, operations, personnel, procedures, equipment, physical plant, security, and health and safety procedures meet established standards. ASCLD/LAB is a recognized accrediting body for DPS accreditation (see above). Accreditation is a part of a laboratory's quality assurance program which should also include proficiency testing, continuing education, and other programs to help the laboratory give better overall service to the criminal justice system. Accreditation is granted for a period of five years provided that a laboratory continues to meet ASCLD/LAB standards, including completion of the Annual Accreditation Audit Report and participation in prescribed proficiency testing programs. To maintain accreditation, a laboratory must submit a new application for accreditation every fifth year, pay annual accreditation fees (REF. 7), provide proficiency tests to its analysts, and undergo periodic announced on-site inspections for compliance of accreditation standards. There are numerous crime labs in Texas accredited by ASCLD/LAB, including Dallas County SWIFS Crime Laboratory (REF. 6), the Tarrant County Medical Examiner s Office Criminalistic Laboratory (REF. 10) and Forensic Toxicology/Drug Laboratories (REF. 11) operated by FSC Chair Dr. Nizam Peerwani, and Sam Houston State 24 Government Code Code of Criminal Procedure Article Texas Administrative Code, Title 37, Part 1, Chapter 28, Subchapter J, Rule Unscheduled Audit. 8

9 University Regional Crime Laboratory (REF. 12) operated by FSC Member Dr. Sarah Kerrigan. Historically, crime laboratories that lose acceptable accreditation status (e.g. placed on probation or suspension) due to the discovery of improper scientific methodologies within the lab during audits or investigations are threatened with closure of the lab 27, 28. (The FSC is currently investigating the allegations of scientific misconduct within the El Paso Crime Laboratory.) The public's perception of integrity and competence of a crime laboratory's work product from its forensic analysts becomes tarnished. Of financial importance, accreditation is also a requirement for a crime laboratory to receive monetary awards from several forensic-related Federal Grant Funding Programs 29, 30. For example, Dallas County SWIFS Crime Laboratory was awarded over $1,000,000 in 2011 from just two of these federal grants (REF. 8, 9). Similarly, in 2010 Tarrant County received over $348,000 31, while UNTHSC received over $785, Therefore, crime laboratories have a "significant financial interest" to retain an acceptable accreditation status. The FSC employed the services of the accreditation agency ASCLD/LAB as the sole investigative agency for the inquiry into allegations of scientific misconduct at the Dallas County SWIFS Crime Laboratory 32. However, Dallas County SWIFS Crime Laboratory has a "business relationship" with the accreditation agency ASCLD/LAB, as do FSC Members Dr. Nizam Peerwani (REF. 10, 11) and Dr. Sarah Kerrigan (REF. 12) for their own crime laboratory's accreditation. At no time during any of the FSC Meetings were any of these "business relationships" acknowledged or addressed by the FSC subsequent to the submission of the complaint of allegations of scientific misconduct within Dallas County SWIFS Crime Laboratory. In fact, the accreditation agency ASCLD/LAB may, in part, be responsible for the misconduct and poor scientific practices in the crime lab because the accreditation agency failed to identify or enforce corrections of problems discovered during the auditing or accreditation process. Any problematic findings of a crime laboratory's operations may be reflective of the poor auditing practices and standards of the accreditation agency. Thus, in order to maintain the perception of professionalism and competency, the accreditation agency may veil systemic problems discovered during the audit of a crime lab. Hence, any audit or investigation performed by the accreditation agency could be self-serving and not necessarily unbiased and impartial, contradictory to the public's 27 "El Paso City Council considers closing crime lab", July 15, 2011, 28 "Nassau Shuts Down Crime Lab Over Drug Test Errors", February 18, 2011, 29 Coverdell Forensic Science Improvement Grants, 30 DNA Backlog Reduction Program, Texas Code of Criminal Procedures Sec.4(c). 9

10 expectations. Marginalized accreditation audits are not in the best interest of the public's safety for reliable criminal justice. By assigning an investigation of alleged scientific misconduct solely to the accreditation agency ASCLD/LAB, it could be perceived that FSC Members which employ ASCLD/LAB are either attempting to gain favor with the accreditation agency (to maintain their own crime lab's accreditation) or attempting to prevent a retaliatory effect from the accreditation agency against their own crime lab. A quid pro quo agreement is established. As stated before, the Dallas County SWIFS Crime Laboratory is ASCLD/LAB accredited (REF. 6). Dr. Nizam Peerwani s crime laboratories are also ASCLD/LAB accredited (REF. 10, 11), as is Dr. Sarah Kerrigan's crime laboratory (REF. 12). With respect to the transparency and reliability of accreditation, however, ASCLD/LAB and its auditing standards have been the subject of much criticism due to the epidemic number of ASCLD/LAB accredited crime laboratory failures across the nation that the news media have reported on in the past few years. In one recent eye-opening memorandum 33 the accreditation agency ASCLD/LAB has been described as "...a product service organization which sells for a fee, a "seal of approval", covering diverse laboratory systems which laboratories can utilize to bolster their credibility through incourt testimony by technicians plus ancillary services such as protection from outside inquiry, shielding of internal activities and where necessary, especially in the event of public condemnation, a spokesperson to buffer the laboratory from media inquiry...". Since 2005, the media has reported on 28 "incidents failures" in crime lab facilities that were accredited by ASCLD/LAB 34. The most notorious crime laboratory failure reported was the North Carolina State Bureau of Investigations (SBI) which had been accredited 5 times by ASCLD/LAB 35. Yet the accreditation audits had failed to identify the crime laboratory's egregious misrepresentation of presumptive and confirmatory test results for blood stated within their standard operating protocols -- a failure that lead to the wrongful conviction of Gregory Taylor (who spent nearly 17 years in prison) 36 and a retroactive review of at least 229 blood-related cases from the SBI. Of note, the former assistant lab director of the SBI who oversaw the evidence withholding policies of the SBI during the time Greg Taylor s case was being processed at the SBI is Ralph Keaton -- the Founder and current Executive Director of the accreditation agency ASCLD/LAB. 33 See Memorandum to the New York State Commission of Forensic Science from Marvin Schechter, Esq, (of the New York State Bar Association), dated 03/25/2011. Online at 34 Ibid. 35 "Inspectors missed all SBI Faults", by Mandy Locke and Joseph Neff, Newsobserver.com, 8/27/ "Taylor, now free: 'Truth has Prevailed' ", by Amanda Lamb and Adam Owens, 2/18/2010, 10

11 TIMELINE OF EVENTS This information is (or was) available to the citizens of Texas as posted on the FSC web page [http://www.fsc.state.tx.us/]. Other supporting information was received by from the FSC. 02/12/ An anonymous memorandum 37 was ed by to the DPS and FSC in an attempt to get basic questions pertaining to standard operating procedures of a crime laboratory answered. The identification of the crime laboratory and its Management were not disclosed in the anonymous memorandum in order to minimize blame (against the Crime Laboratory Management) or retaliation (against the complainant). Both the FSC and the DPS requested more detailed information in order to investigate further. 03/16/2009 (REF. 13, 6 pages) - An anonymous 35-page complaint Report 38 of allegations of scientific misconduct was submitted to the FSC via with the pseudonym (later revealed to be Dallas County SWIFS Crime Laboratory forensic analyst Christopher Nulf, Ph.D.). FSC acknowledged receipt of the complaint. The DPS also received this same 35-page report, on or about, this date. D. Pat Johnson acknowledged receipt of the complaint (and accompanying documents) via on March 30, However, there was no further communication from D. Pat Johnson to the complainant (Christopher Nulf, Ph.D.) after this date. This complaint was effectively abandoned by the DPS. 03/31/2009 (REF. 14, 1 page) - A 9-page addendum 39 to the March 16, 2009 anonymous report was submitted to the FSC via with the pseudonym (Christopher Nulf, Ph.D.). FSC acknowledged receipt. The DPS also received this same 9-page addendum, on or about, this date. There was no acknowledgement of receipt by Pat Johnson. 37 The full memorandum is available online at 38 The full complaint Report is available online at 39 The full addendum is available online at 11

12 05/15/2009 (REF. 15, 1 page) - From the FSC Meeting (Dallas, Texas), the Meeting Minutes state:...for a new complaint received by the Commission, it was decided that all of the complaint materials would be sent to the agency the complaint is against, along with a request for a response to the complaint. It was also decided that the complaint would be forwarded to the corresponding accrediting agency. The Commission will review any updates on these cases at the July meeting in Houston... All 9 FSC Members were aware of the allegations in the report, the name of the crime laboratory, and the crime laboratory management responsible. All decisions were made and agreed upon by the collective 9 members of the FSC. (Dr. Arthur Eisenberg was a member of the FSC at this time. Dr. Nizam Peerwani was not a member of the FSC at this time.) Although the "FSC Policies and Procedures" had not yet been created and independent subcommittees were non-existent, these actions taken by the full FSC indicated that the criteria for an investigation were met, as defined within the Anonymous Complaint Form (REF. 13). It was assumed that all 9 Commission Members would be reviewing and investigating all the allegations submitted in the complaint. Any actions and decisions made by the full FSC were believed to follow those stated in the Texas Code of Criminal Procedures (REF. 2) or those actions stated in the FSC Anonymous Complaint Form (REF. 13). For unexplained reasons, this complaint was never subsequently assigned to an "Investigative Panel" subcommittee which was later created as a part of the "FSC Policies and Procedures" in January At this time, Dallas County SWIFS Crime Laboratory was fully aware of an investigation by the FSC. Thus, any solicitation of a "business relationship" with an FSC Member (that is, the establishment of any financial contracts) subsequent to this meeting would be improper towards maintaining an unbiased and impartial investigation by the FSC. As mentioned during the FSC Meeting, the corresponding accreditation agency was ASCLD/LAB. However, Dallas County SWIFS Crime Laboratory already had an existing "business relationship" with the accreditation agency ASCLD/LAB (REF. 6), as did FSC Member Dr. Sarah Kerrigan for her crime lab (REF. 12). Unfortunately, these "business relationships" were not acknowledged or disclosed to other FSC Members or the public at this FSC Meeting or any other subsequent FSC Meeting. 12

13 07/24/2009 (REF. 16, 1 page) - From the FSC Meeting (Houston, Texas), the Meeting Minutes state: The meeting proceeded with a review of pending complaints. A discussion regarding complaint # 0915 was led by Eisenberg. Eisenberg reviewed all of the documentation for the complaint and suggested re-contacting ASCLD, the accrediting agency. Tomlin indicated that the Office had not seen a response to the complaint from ASCLD. It was also discussed that DPS should be contacted regarding the complaint. Tomlin is to send a letter along with the complaint to Pat Johnson. It was discussed that any response, particularly a response from the lab, should be to the same level of detail of the complaint. Each allegation should be followed up with proof that the allegation has been corrected or did not exist. The response should be extremely detailed addressing each of the points in writing, showing that the issues have been corrected. Bassett stated that contact should be reinitiated with ASCLD regarding the complaint, and then the Commission will ask SWIFS to provide a detailed response specifically to the complaint, point by point. DPS will also be sent the complaint and any corresponding documentation. Hereafter, the complaint submitted by (Christopher Nulf, Ph.D.) was labeled #09-15 by the FSC. [Circa September/October 2010, another complaint was submitted to the FSC by the Texas State Auditor's Office (SAO). This complaint submitted by the SAO was assigned by the FSC as Complaint # In December 2010, a second anonymous complainant (using the pseudonym -- public identity unrevealed) submitted additional material to the FSC regarding allegations of scientific misconduct at Dallas County SWIFS Crime Laboratory in the form of a lengthy PowerPoint presentation (see below). This supplemental material was not assigned its own complaint number and inexplicably combined with Complaint #10-24 by the FSC. None of the allegations of scientific misconduct presented within the second anonymous complaint were addressed by the FSC, DPS, or the accreditation agency ASCLD/LAB.] These actions taken, again, also indicate that the Complaint #09-15 was being investigated by the FSC. That is, according the FSC's Anonymous Complaint Form (REF. 13), the criteria were met to pursue an investigation. [Of importance, during the FSC Meeting it was suggested that the DPS Crime Lab director D. Pat Johnson should be informed of the complaint against Dallas County SWIFS. However, the DPS Crime Lab Director D. Pat Johnson had also received the same anonymous complaint on (or about) the same time as the FSC. Thus, the DPS was fully aware of the allegations but did not respond to the anonymous complainant (Christopher Nulf, Ph.D.), apparently did not contact the FSC, and apparently did not initiate an independent investigation into the allegations on their own. In addition, the accreditation agency ASCLD/LAB was also non-responsive to the requests of the FSC.] There is no mention of Dallas County SWIFS Crime Laboratory's "business relationship" with the accreditation agency ASCLD/LAB (REF. 6) There is no mention of Dr. Sarah Kerrigan's "business relationship" with the accreditation agency ASCLD/LAB (REF. 12). 13

14 08/29/2009 Dallas County SWIFS Crime Laboratory sent a rebuttal Report to the FSC responding to the allegations from the Complaint # This rebuttal Report was subsequently forwarded to the anonymous complainant (Christopher Nulf, Ph.D.) in September The FSC did not ask for a response from the anonymous complainant (Christopher Nulf, Ph.D.) regarding Dallas County SWIFS Crime Laboratory's rebuttal Report. 10/02/2009 (REF. 17, 1 page) For the FSC Meeting (Dallas, Texas), the FSC agenda states: REVIEW OF ANY COMPLAINT FORMS RECEIVED AND FINAL DECISIONS TO DENY OR REVIEW (Bassett, et.al.)... Status of case #0915 Review of ASCLD response to #0915 (Eisenberg, Watts) Review of any response from corresponding lab Discussion on next steps for complaint #0915 Review of closed lab/conflict of interest inquiry This agenda suggests that the status of Complaint #09-15 was to be discussed along with a review of the accreditation agency ASCLD/LAB response to the complaint. (The Review from the accreditation agency ASCLD/LAB was not actually completed until June This Review was not forwarded to the complainant until August No rebuttal from the complainant was solicited by the FSC. Ultimately, the FSC weighed heavily on the accreditation agency ASCLD/LAB's Review (see below) to dismiss the complaint against Dallas County SWIFS Crime Laboratory.) Also, the possibility of a conflict of interest between FSC Members and the crime laboratories investigated by the FSC were to be discussed during this meeting. Thus, FSC Members knew, or should have known, at this time the Texas conflict of interest laws as they pertain to their investigative duties. Unfortunately, this FSC Meeting was cancelled by newly appointed FSC Chair John Bradley (who had replaced FSC Chair Sam Bassett). The topics from this agenda were not addressed for several months. 40 The full rebuttal Report "L_fm SWIFS re response " is available online at 14

15 11/10/2009 (REF. see web link 41 ) - During testimony for the Texas Senate Committee on Criminal Justice (Austin, Texas), in an exchange between FSC Chair John Bradley and Senator Rodney Ellis: Ellis: Are you familiar with how many cases were referred -- whether anonymously, in writing, however -- to the Forensic Science Commission? Bradley: I would...i would have to ask our coordinator. It's certainly less than fifty. Ellis: I'm talking about thirty. Bradley: I think it's around thirty. Ellis: And of the thirty that were referred, roughly 3 were decided to be looked at. Bradley: That's my understanding. Yes. The 3 cases that Mr. John Bradley was referring to during this dialog was Complaint #09-01 (Willingham/Willis), Complaint #09-02 (Moon), and Complaint #09-15 (the anonymous Approximately 16 months later, during a second testimony on February 28, 2011, in a dialog between FSC Chair John Bradley and Senator Rodney Ellis, Mr. John Bradley lies -- declaring only 2 complaints (not 3) had ever been accepted for review (see below). This information was reiterated in an from (Christopher Nulf, Ph.D.) to the FSC on 08/21/2011 (see below). The FSC did not comment on the deceptive statement of John Bradley during the February 28, 2011 Senate Meeting. 12/14/2009 (REF. 03, 1 page) - Dr. Nizam Peerwani was appointed as an FSC Member by the Governor 42. At no time during subsequent FSC Meetings did Dr. Nizam Peerwani address or acknowledge his "business relationship" with the accreditation agency ASCLD/LAB (REF. 10, 11). 01/29/ From the FSC Meeting (Harlingen, Texas), Commission members discussed in detail and edited a proposed draft of the "FSC Policies and Procedures". The draft was unanimously approved and adopted by the Commission and was posted on the FSC website 43. Included within the adopted "FSC Policies and Procedures" is the clause: 2.0 Membership (e) A person who is appointed to and qualifies for office as a member of the FSC shall receive an orientation from the Chair and staff that provides the person with information regarding: (4) the requirements of: (C) other laws relating to public officials, including conflict of interest laws...(emphasis included) approximately 15 minutes. 42 Texas Code of Criminal Procedures, Art , Sec. 3(a)(1). 43 Full text available online at 15

16 Thus, if Commission Members were unaware of Texas conflict of interest laws (or any other laws pertaining to their statutory duties) prior to their appointment to the FSC, according to the "FSC Policies and Procedures", they were informed of their legal responsibilities as members of a State Agency at this time. However, there was no mention of Dallas County SWIFS Crime Laboratory's "business relationship" with the accreditation agency ASCLD/LAB (REF. 6). There was no mention of Dr. Sarah Kerrigan's "business relationship" with the accreditation agency ASCLD/LAB (REF. 12). There was no mention of Dr. Nizam Peerwani's "business relationship" with the accreditation agency ASCLD/LAB (REF. 10, 11). 04/15/2010 (REF. 18, 4 pages) - An additional, unsolicited, supporting 4-page report pertaining to the allegations of scientific misconduct was sent to the FSC by the complainant (Christopher Nulf, Ph.D.) via . There was no acknowledgment from the FSC that this supporting material was received. The allegations presented therein were never addressed for investigation by either the FSC, the accreditation agency ASCLD/LAB, or Dallas County SWIFS Crime Laboratory. 04/20/2010 (REF. 04, 12 pages) - FSC Member Dr. Arthur Eisenberg (acting as the laboratory director at UNTHSC) entered into a "business relationship" with Dallas County for "DNA services". The Dallas County SWIFS knew, at that time, that the Crime Laboratory was under investigation by the FSC. Thus, any offer of a contractual "business relationship" to an FSC Member would constitute an illegal coercion of a public servant 44. Correspondingly, an acceptance of the contractual "business relationship" by Dr. Arthur Eisenberg, as a member of a State Agency, would constitute the illegal act of bribery Texas Penal Code, Sec COERCION OF PUBLIC SERVANT OR VOTER. (a) A person commits an offense if by means of coercion he: (1) influences or attempts to influence a public servant in a specific exercise of his official power or a specific performance of his official duty or influences or attempts to influence a public servant to violate the public servant's known legal duty; or (2) influences or attempts to influence a voter not to vote or to vote in a particular manner. (b) An offense under this section is a Class A misdemeanor unless the coercion is a threat to commit a felony, in which event it is a felony of the third degree. (c) It is an exception to the application of Subsection (a)(1) of this section that the person who influences or attempts to influence the public servant is a member of the governing body of a governmental entity, and that the action that influences or attempts to influence the public servant is an official action taken by the member of the governing body. For the purposes of this subsection, the term "official action" includes deliberations by the governing body of a governmental entity. 45 Texas Penal Code, Sec BRIBERY. (a) A person commits an offense if he intentionally or knowingly offers, confers, or agrees to confer on another, or solicits, accepts, or agrees to accept from another: (1) any benefit as consideration for the recipient's decision, opinion, recommendation, vote, or other exercise of discretion as a public servant, party official, or voter; (2) any benefit as consideration for the recipient's decision, vote, recommendation, or other exercise of official discretion in a judicial or administrative proceeding; (3) any benefit as consideration for a violation of a duty imposed by law on a public servant or party official; (b) It is no defense to prosecution under this section that a person whom the actor sought to influence was not qualified to act in the desired way whether because he had not yet assumed office or he lacked jurisdiction or for any other reason. (c) It is no defense to prosecution under this section that the benefit is not offered or conferred or that the benefit is not solicited or accepted until after: (1) the 16

17 According to subsequent FSC Meeting Minutes, this "business relationship" was never disclosed to other FSC Members, or the public, during any FSC Meetings. The "business relationship" was not posted on the FSC webpage for the public. Dr. Arthur Eisenberg did not recuse himself from any "participation" in subsequent FSC Meetings regarding the investigation of the Dallas County SWIFS Crime Laboratory until the 09/08/2011 FSC Meeting, after concerns of a conflict of interest were presented in an from (Christopher Nulf, Ph.D.) (see below). This "business relationship" should never have been established since the Dallas County SWIFS Crime Laboratory had its own DNA lab to perform forensic DNA testing on evidentiary items. Moreover, Dallas County had contracts with other local agencies (REF. 42, 1 page) that could provide the same, if not more, comprehensive forensic DNA services than Dr. Arthur Eisenberg's laboratory. Thus, the redundancy of DNA service contracts from Dallas County and the unrecognized conflict of interest suggests a nefarious ulterior motive for Dallas County. 04/23/2010 (REF. 19, 1 page) - From the FSC Meeting (Dallas, Texas), the Meeting Minutes state: Complaint No : The FSC discussed obtaining additional information on a response from the accrediting body and reviewing any additional information for this complaint. Bradley moved that recommendations for this complaint be made at the July 23rd, 2010 meeting. Peerwani seconded the motion. The FSC unanimously agreed on the recommendation. There was no mention of Dr. Arthur Eisenberg's "business relationship" with Dallas County SWIFS Crime Laboratory (REF. 4). There was no mention of the accreditation agency ASCLD/LAB's "business relationship" with Dallas County SWIFS Crime Laboratory (REF. 6). There was no mention of Dr. Nizam Peerwani's "business relationship" with the accreditation agency ASCLD/LAB (REF. 10, 11). There was no mention of Dr. Sarah Kerrigan's "business relationship" with the accreditation agency ASCLD/LAB (REF. 12). No FSC Members recused themselves from discussions pertaining to the anonymous complaint against Dallas County SWIFS. The FSC continued to suspend a formal investigation into the allegations of the Dallas County SWIFS Crime Laboratory months after the submission of the complaint. By comparison, two other complaints (# and # ) submitted to the FSC in 2008 were automatically assigned to FSC Investigative Panels, bypassing the newly created CSC process. Hereafter, Complaint #09-15 was perpetually stalled within the CSC (lead by Mr. John Bradley, Dr. Nizam Peerwani, and Dr. Arthur Eisenberg). decision, opinion, recommendation, vote, or other exercise of discretion has occurred; or (2) the public servant ceases to be a public servant. 46 Complaint #09-01 refers to the Willingham/Willis complaint submitted by the Innocence Project. 47 Complaint #09-02 refers to the Brandon Moon complaint submitted by the Innocence Project. 17

18 There was no mention of Dr. Arthur Eisenberg's "business relationship" with Dallas County SWIFS Crime Laboratory (REF. 4). There was no mention of the accreditation agency ASCLD/LAB's "business relationship" with Dallas County SWIFS Crime Laboratory (REF. 6). There was no mention of Dr. Nizam Peerwani's "business relationship" with the accreditation agency ASCLD/LAB (REF. 10, 11). There was no mention of Dr. Sarah Kerrigan's "business relationship" with the accreditation agency ASCLD/LAB (REF. 12). No FSC Members recused themselves from discussions pertaining to the anonymous complaint against Dallas County SWIFS. 06/18/ The accreditation agency ASCLD/LAB provided a Review 48 of the allegations from the Dallas County SWIFS Crime Laboratory to the FSC nearly one year after it was requested from the FSC (see 05/15/2009 FSC Meeting Minutes). The accreditation agency ASCLD/LAB never contacted the complainant for participation in its Review. The accreditation agency ASCLD/LAB never provided a copy of its Review to the complainant for comments or rebuttal. The ASCLD/LAB Review was not discussed at any FSC Meeting. In fact, the ASCLD/LAB Review was concealed from the public until the FSC disclosed it to the complainant 14 months after it was created. The FSC forwarded a copy of the accreditation agency's Review to the complainant in August It is unknown if the Review was provided to D. Pat Johnson at the DPS or if it was provided to the Dallas County District Attorneys Office. Most importantly, only this ASCLD/LAB Review and the rebuttal Report from the Dallas County SWIFS Crime Laboratory 40 were used by the FSC for the final decision to excuse the allegations of scientific misconduct against the Crime Laboratory. The FSC did not confirm or validate any of the claims proffered by ASCLD/LAB in its Review. Unfortunately, many of the claims and conclusions made in the ASCLD/LAB Review report were demonstrably misleading and false, including the opinion "...It further suggests that the overall complaint...very likely arose out of a desire for retaliation against SWIFS." (REF. 44, 1 page) (The complainant was an employee at SWIFS at the time the complaint was submitted to the FSC.) All additional unsolicited material submitted by the complainant after this date (and material from the second additional anonymous complaint -- see below) were disregarded by the FSC, without contemplation or discussion. That is, the FSC had no intention of pursuing an investigation once it received the ASCLD/LAB Review. All subsequent actions by the FSC were favorable to the Dallas County SWIFS Crime Laboratory and prejudicial against the complainant (a forensic analyst and citizen of Dallas County). 48 Full ASCLD/LAB Review is available online at 18

19 07/23/2010 (REF. 20, 1 page) - From the FSC Meeting (Houston, Texas), the Meeting Minutes state: MOTIONS AND VOTES: Complaint No : Peerwani moved that the complaint be abated in light of pending litigation and a letter be sent to complainant. Evans moved to approve the recommendation. Hamilton seconded the motion. The FSC unanimously approved the recommendation. Again, there was no mention of Dr. Arthur Eisenberg's "business relationship" with Dallas County SWIFS Crime Laboratory (REF. 4). There was no mention of the accreditation agency ASCLD/LAB's "business relationship" with Dallas County SWIFS Crime Laboratory (REF. 6). There was no mention of Dr. Nizam Peerwani's "business relationship" with the accreditation agency ASCLD/LAB (REF. 10, 11). There was no mention of Dr. Sarah Kerrigan's "business relationship" with the accreditation agency ASCLD/LAB (REF. 12). No FSC Members recused themselves from discussions or voting on actions that pertained to the anonymous Complaint #09-15 against Dallas County SWIFS Crime Laboratory. Curiously, the civil litigation mentioned during this FSC Meeting (and used as a reason to stall an investigation) was not mentioned during the previous meeting on 04/23/2010 when the civil litigation was still in progress. That is, the civil litigation (wrongful employment termination of the complainant from the Dallas County SWIFS Crime Laboratory) was initiated in October 2009 (7 months after the submission of the complaint to the FSC) and terminated on July 8, two weeks prior to this FSC Meeting (REF. 43, 4 pages). FSC Members knew or should have known the civil litigation mentioned during this meeting had already been disposed (non-suit). This action by the FSC demonstrated either a severe lack of due diligence of their investigative responsibilities (i.e. didn't inquire with the complainant or Dallas County SWIFS about the civil litigation), or a blatant attempt to present false information to the public and stall an investigation into the allegations against the Dallas County SWIFS Crime Laboratory. Again, there was no mention of Dr. Arthur Eisenberg's "business relationship" with Dallas County SWIFS Crime Laboratory (REF. 4). There was no mention of the accreditation agency ASCLD/LAB's "business relationship" with Dallas County SWIFS Crime Laboratory (REF. 6). There was no mention of Dr. Nizam Peerwani's "business relationship" with the accreditation agency ASCLD/LAB (REF. 10, 11). There was no mention of Dr. Sarah Kerrigan's "business relationship" with the accreditation agency ASCLD/LAB (REF. 12). No FSC Members recused themselves from discussions or voting on actions that pertained to the anonymous Complaint #09-15 against Dallas County SWIFS Crime Laboratory. 19

20 08/09/2010 (REF. 21, 1 page) - In a related received from the FSC shortly after the meeting, an attachment states: Other such action was taken as appropriate an in accordance with 3.0 of the FSC policies and procedures Complaint was abated pending final disposition of civil litigation. Of importance, at the time the complaint was sent to the FSC in March 2009 there was no written FSC Policies and Procedures. The FSC Policies and Procedures was created on 01/29/2010 (with subsequent revisions adopted by the FSC on 04/23/2010, 07/23/2010, 04/14/2011, and 09/08/2011). Therefore, this was a newly fabricated retrofitted excuse by the FSC, again, favoring the Dallas County SWIFS Crime Laboratory. A second attachment (REF. 22, 1 page) states:...the FSC has elected to abate any further action on your complaint given the pending civil litigation arising from your complaint. Please notify us of the final disposition of the civil lawsuit... Overall, this action taken by the FSC was outside their legal purview. There is no exception in the Texas Code of Criminal Procedures (REF. 2) which precludes an investigation by the FSC because of a concurrent civil litigation unrelated to their investigations (e.g. wrongful employment termination suit). In fact, there is clear language in the statute that restricts individuals engaged in a civil or criminal proceeding from utilizing reports created by the FSC concerning findings of scientific negligence or misconduct. FSC reports can not be used as prima facie evidence 49, thus keeping FSC investigations intended for the People of Texas independent from civil or criminal litigations. Moreover, the FSC is supposed to conclude investigations "in a timely manner" 50. Abatement of an investigation by the FSC and continued scientific misconduct within a Crime Laboratory jeopardizes the civil liberties of those defendants being prosecuted with compromised evidence unreliable lab reports produced as a work product from those Crime Laboratories. As stated before, the civil litigation (employment wrongful termination) was initiated in October months after the FSC received the anonymous complaint. The FSC waited an additional 9 months before presenting this specious excuse. Interestingly, the Dallas County SWIFS Crime Laboratory never notified the FSC of the error in the FSC actions during the July 2010 FSC Meeting (regarding the non-suit that had been disposed several weeks earlier -- see REF. 43). Furthermore, the Dallas County 49 Texas Code of Criminal Procedures 38.01, Sec. 4(e). 50 Texas Code of Criminal Procedures 38.01, Sec. 4(a)(3). 20

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