A scientist in Fort Worth’s crime lab says rules were broken. Now a judge wants answers.
The Fort Worth police crime lab may have violated policies related to the handling of DNA evidence for as long as two years, even after an employee reported the potential problems to her managers and the Tarrant County District Attorney’s Office in 2018, according to court documents.
The violations, if substantiated, have the potential to affect every case that one crime lab liaison worked on in that time period.
Tarrant County visiting judge Elizabeth Berry filed a 32-page report in August that details the possible violations at the Fort Worth Police Department Crime Laboratory. The judge began investigating the lab by calling employees to testify in her court after a defendant in a murder trial filed a motion to suppress DNA evidence in his case because he said it was tampered with.
The defendant, James Ernest Floyd Jr., is accused of killing John Porter in a robbery in 2017. Floyd is also charged with shooting Porter’s wife, who survived the robbery.
Though the initial question about the handling of evidence was centered around Floyd’s case, Berry’s report details possible intimidation, retaliation and systemic policy violations in the lab that could affect many cases since at least 2018. The judge’s report also detailed how reports made to the District Attorney’s Office about the possible violation were largely ignored.
Berry admonished several lab employees for airing “petty grievances” during a murder case where the state is seeking the death penalty.
A mistrial in Floyd’s case was declared on Aug. 18 because a full 12-person jury could not be seated. Now, Berry has raised about a dozen questions about the lab that she has requested be answered before the case moves forward.
The District Attorney’s Office declined to comment because the report involves a pending case. An emailed statement from the Fort Worth Police Department said an internal audit did not substantiate complaints about the crime lab.
Crime lab paperwork
On Aug. 4, Floyd, who is representing himself with the help of a stand-by counsel, filed a motion to suppress DNA evidence that prosecutors say links him to the shootings because he says a forensic scientist tampered with evidence. The documents don’t say what kind of DNA was collected or tested.
Floyd’s request relates to a “DNA submission form” document, specifically regarding a yes or no question that gives a forensic scientist “permission to consume” the sample — meaning the scientist either can use part or all of a DNA sample during testing.
According to the lab’s policy, a forensic scientist should keep an untested portion of the evidence sample, unless the scientist has reason to believe that using the entire sample will yield a stronger result. Using the full sample means that if the test isn’t done correctly, if it comes back inconclusive or the defendant wants to test it, then subsequent tests might not be possible because the entire sample has been used by the prosecution, according to multiple attorneys who spoke with the Star-Telegram.
For the lab to have permission to consume a sample, the OK must be given by the case investigator. This is in line with FBI protocols and policies at crime labs across the country.
However, the crime lab’s liaison, Sundaye Lopez, has been signing the permission to consume documents herself, in violation of the policy, according to Berry’s report. According to Lopez’s testimony, the former lab director gave her permission to help detectives fill out the DNA submission form, and that permission was continued by Michael Ward, the lab’s current director, according to the document.
Mike Ware, a Fort Worth criminal defense attorney, spoke to the Fort Worth Star-Telegram in general terms about what that could mean for cases.
“If the protocols and policies are violated or are deviated from, it’s a serious problem,” he said. “It doesn’t necessarily mean that the results should be excluded from a trial — but it could mean (it could be excluded) depending on the circumstances.”
One of the issues Berry raised is that senior forensic scientist Trisa Crutcher — who also helped develop the DNA submission form — first reported to management two years ago that the policy stating investigators must sign the “permission to consume” part of the DNA submission form wasn’t being followed.
Two lab employees testified before Berry that the lab’s director, Ward, threatened to fire people if they didn’t “proceed with their casework and issue reports as ordered,” according to Berry’s report.
The lab employees said Ward ordered them to not mention their concerns about the DNA submission form and told them they would be fired if they didn’t drop it, according to Berry’s report. He then deemed concerns about the paperwork as a “non-issue,” according to the report.
On June 27, 2018, Ward issued an “inter-office correspondence” about the issue that was to be included in each of the case files that were in review at the time. He told Crutcher to send the document to prosecutors whose cases were affected, Berry wrote.
That didn’t include Floyd’s case, which wasn’t in review yet.
Ward also amended the policy (which had followed FBI protocol) to reflect that the DNA submission form, with the permission to consume question, could be filled out with the assistance of lab personnel.
Because of how Ward handled the complaint, several people met with Ward’s supervisor at the Fort Worth Police Department, Deputy Chief Sharon Kamper, according to Berry’s report. A police sergeant who investigated the complaint determined there were no city policy violations, according to Berry’s report.
But, according to Berry’s findings, neither that sergeant nor the lab ever conducted an audit to determine if any other cases were affected.
In a statement emailed on Thursday, the police department said: “The Department is aware of the allegations that have been made and is committed to both ensuring a thorough investigation is conducted and maintaining communication about this matter with the proper agencies. An internal audit was conducted related to complaints by an employee that cases were being mismanaged in the Crime Lab and that audit did not substantiate the complaint.”
No one notified the Texas Forensic Science Commission that policies were possibly being violated, the judge’s report said. The commission investigates allegations of professional negligence or misconduct that could affect forensic results conducted by an accredited lab.
Ware, the defense attorney, said it’s concerning that nothing was ever reported to an accrediting agency.
“Even if the results are not excluded (from Floyd’s case), the fact that the results were reached in contravention of the department’s own protocol and policies should be disclosed to the defendant and possibly to the Texas Forensic Science Commission and/or another accrediting agency,” he said.
Lab work in Floyd’s case
Lopez testified that she would verbally help homicide detectives fill out the form, including in Floyd’s case, but said that the detective in Floyd’s case also gave her permission.
That detective — Jerry Cedillo — testified that the paperwork in Floyd’s case was filled out with his approval.
Crutcher testified that there were no concerns regarding the DNA itself. She said the items she reviewed were properly packaged and stored.
On April 8, Crutcher complained again about the DNA submission forms not being filled out correctly, according to the judge’s report. Upset with the lack of concern by police, Crutcher emailed Pauline Fitzgerald, an investigator at the Tarrant County District Attorney’s Office, to express her concerns and seek an investigation, Berry wrote.
Fitzgerald sent the email to her supervisor, Maria Hinojosa, who testified that Crutcher’s allegations were “unsubstantiated” and that she would refer them “to the proper authorities,” but no such referral was made, Berry wrote. However, the emails were forwarded to Hinojosa’s supervisor, who testified that she doesn’t recall receiving them.
Despite Fitzgerald’s dismissal of Crutcher’s allegations, Berry wrote that there is no evidence that Crutcher (or another lab employee who complained about policy violations) ever made false allegations.
“One cannot help but lend more credibility to the claims of intimidation and retaliation going on in the (crime lab) after seeing this sequence of events unfold in the courtroom,” Berry wrote.
Former members of the biology unit also testified that they had concerns similar to Crutcher’s when they worked in the lab.
According to the Texas Forensic Science Commission’s website, Crutcher filed a complaint against the lab this year. The status of the complaint is open, and no other information is provided on the website.
Questions by the judge
Berry ended her report by listing about 10 questions that the testimony by lab personnel brings up and asked that both the defense and prosecution provide a brief explaining whether the actions of police and the crime lab affect the integrity of lab results in the case.
Here are some examples of her questions, which have been edited for length and clarity:
▪ In 2018, was there systemic crime lab misconduct by the lab for not following written policy in regards to DNA submission?
▪ Has there been an investigation to determine how many cases were affected by this alleged policy violation?
▪ If there was a policy violation, is it serious enough to warrant notification to the Texas Forensic Science Commission and other accrediting bodies?
▪ Did the crime lab from 2018 to 2020 have at least an obligation to report to the District Attorney’s Office and accrediting bodies that there was an ongoing investigation into the procedures, even if they were confident that policies were not broken?
▪ When the District Attorney’s Office was notified in 2018, did that trigger a duty for the office to investigate whether there was a larger issue that could apply to more than just those two cases?
This story was originally published September 18, 2020 at 2:43 PM.
