PASSAGE OF THE DAY: "Fort Worth defense attorney Christy Jack represents a former Waco daycare owner convicted in 2015 of murdering a child after Lykissa testified about the presence of Benadryl in hair samples of other children in her care. The suspect won an appeal based on faulty jury instructions and is awaiting a re-trial. Lykissa was set to testify in the new trial, Jack said, until she learned of the recent developments involving the Texas science commission and the Pennsylvania case. “We were the ones who notified the prosecution of the problems with their witness,” Jack said. Lykissa told the commission he worked on only about five similar cases. But Jack said the lab’s troubles could affect numerous other cases in Texas and around the country. "There's no telling how many cases his testimony, his questionable testimony, has affected,” Jack said."
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PASSAGE TWO OF THE DAY: "COMMISSION FINDINGS: The commission, which is made up of seven scientists, a prosecutor and a defense attorney, voted two weeks ago that Lykissa and ExperTox engaged in professional misconduct, according to the report:
- Lykissa failed to obtain a forensic analyst license.
- The lidocaine results were “not based on any reliable validation work” and “should not have been issued.”
- The “interpretive opinion” was “unfounded and unsupported by accepted scientific principles.”
- Lykissa produced a “forensic version” of a clinical result for the payment of an additional fee with no changes to the report.
The commission withdrew accreditation for ExperTox “in the discipline of forensic toxicology.”
Other stakeholders should consider submitting any forensic analysis performed by ExperTox for an independent review, the commission said.
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HEADING: "Texas lab's licence suspended into Pennsylvania sex assault case," by Reporter Scott Gordon, published by NBC, on August 3, 2022. (Thanks to Dr. Michael Bowers of 'CSIDDS': Forensics and Law in Focus, under the heading: "More junk toxicology testing affects many criminal cases.")
SUB-HEADING: "ExperTox engaged in 'professional misconduct' Texas Forensic Science Commission says."
GIST: "A Texas laboratory’s license to do drug testing in criminal cases has been suspended after an investigation found the lab submitted inaccurate test results and engaged in misconduct.
The lab, ExperTox, which is located in Deer Park near Houston, and its vice president and lab director, Ernest Lykissa, were faulted by the Texas Forensic Science Commission for their work in a Pennsylvania sexual assault case.
The investigation also found Lykissa violated state regulations by failing to obtain a forensic analyst license.
According to commission rules, ExperTox’s license will be withdrawn for two years. It has 30 days to appeal the ruling.
ExperTox managers did not respond to repeated phone calls and an email seeking comment.
A woman who answered the phone at the company said Lykissa was unavailable.
The commission’s investigation started after a prosecutor in Philadelphia filed a complaint last year questioning ExperTox’s work in a case involving a police officer who was arrested in a 2019 sexual assault case.
At the time, police said the victim was a 21-year-old woman, according to NBC Philadelphia.
“He may have provided her without her knowledge some kind of intoxicant that rendered her unable to appraise what was actually going on,” Capt. Sekou Kinebrew said in an interview after the officer’s arrest.
The prosecutor hired a local company that contracted with ExperTox to analyze a sample of the victim’s hair, according to the commission’s report.
In February 2020, an ExperTox test found the hair tested positive for the drugs lidocaine and THC, the active ingredient in marijuana.
“If these drugs were administered to her without her consent, then that could constitute a drug-facilitated assault by the perpetrator,” the commission quoted Lykissa’s report as saying.
‘CLINICAL USE ONLY’
The initial report included the caveat, “CLINICAL USE ONLY, NOT FOR FORENSIC PURPOSES.”
Notified about the prosecutor’s complaint in January 2021, “Lykissa responded by email stating he was surprised because the case was clearly labeled as for only clinical purposes,” the commission said.
Lykissa also defended his work by telling investigators he remembered telling the prosecutor, “I do not want to testify in this case. I cannot offer you anything scientifically valid.”
But the prosecutor disputed Lykissa’s claim, telling investigators Lykissa told her the drugs were a “witch’s brew” and that “she got him.”
The report says Lykissa also told investigators he was not aware the hair testing would be used in a criminal case because it was submitted to him by an intermediary company without documentation.
But the commission report said “the record was clear” he knew it was in connection with a criminal prosecution and had communicated directly with the prosecutor.
The commission also received a second copy of the lab report which omitted the disclaimer that it wasn’t for scientific purposes.
The DA’s office paid an additional $1,315 for the new version of the report, which was identical to the original, except the one line about “clinical purposes” had been removed, the commission said.
COMMISSION HIRES EXPERT
The commission hired an independent expert to review the case.
The expert said ExperTox used unapproved testing procedures and that it “never should have issued” its report.
In fact, the positive result for lidocaine should have been negative using accepted standards, the expert said.
The expert also said the company’s “significant upcharge” for a “simple removal of the disclaimer…should raise some ethical concerns” for ExperTox.
WRONG TEST RESULT
In a July interview with investigators, Lykissa said “ExperTox does not have a forensically validated hair-testing method” and acknowledged the lidocaine test result in the Pennsylvania case was “well below” its own reporting threshold, the commission said.
Furthermore, ExperTox never produced its raw data validating its test, which the law requires labs to keep, the panel said.
Prosecutors dropped the rape case for lack of evidence.
“Since this is an active and open prosecution we have no further comment at this time,” spokeswoman Jane Roh said.
The defendant’s attorney did not return calls seeking comment.
WACO CASE
Fort Worth defense attorney Christy Jack represents a former Waco daycare owner convicted in 2015 of murdering a child after Lykissa testified about the presence of Benadryl in hair samples of other children in her care.
The suspect won an appeal based on faulty jury instructions and is awaiting a re-trial.
Lykissa was set to testify in the new trial, Jack said, until she learned of the recent developments involving the Texas science commission and the Pennsylvania case.
“We were the ones who notified the prosecution of the problems with their witness,” Jack said.
Lykissa told the commission he worked on only about five similar cases.
But Jack said the lab’s troubles could affect numerous other cases in Texas and around the country.
"There's no telling how many cases his testimony, his questionable testimony, has affected,” Jack said.
According to ExperTox’s website, the company also does private drug testing for employers and other testing such as COVID-19.
The commission’s jurisdiction is limited to investigating labs’ work in criminal cases.
Separately, the commission obtained a document from the College of American Pathologists, which accredits labs nationwide, showing it put ExperTox on probation in May.
CAP started its own investigation after the Texas panel forwarded information about its concerns months earlier.
CAP’s probation notice, which was attached to the commission’s report, faulted ExperTox’s “lack of continuous compliance” with quality management standards.
CAP did not respond to an email for comment.
EXPERTOX PLANS TO APPEAL
Representatives for ExperTox said they plan to appeal the findings and work to maintain its accreditation. Their statement is below:
"ExperTox disagrees with the Texas Forensic Science Commission’s investigative report and has retained counsel to pursue an appeal. At the designated time, the Company will respond to each of the report’s unsubstantiated findings and conclusions. In addition, the Company is working with the College of American Pathologists to maintain its longstanding accreditation. Accordingly, we do not have any comment outside of the recognized legal and administrative channels at this time.""
The entire story can be read at:
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."Lawyer Radha Natarajan:Executive Director: New England Innocence Project;—————————————————————————————————FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!Christina Swarns: Executive Director: The Innocence Project;
PASSAGE TWO OF THE DAY: "COMMISSION FINDINGS: The commission, which is made up of seven scientists, a prosecutor and a defense attorney, voted two weeks ago that Lykissa and ExperTox engaged in professional misconduct, according to the report:
- Lykissa failed to obtain a forensic analyst license.
- The lidocaine results were “not based on any reliable validation work” and “should not have been issued.”
- The “interpretive opinion” was “unfounded and unsupported by accepted scientific principles.”
- Lykissa produced a “forensic version” of a clinical result for the payment of an additional fee with no changes to the report.
The commission withdrew accreditation for ExperTox “in the discipline of forensic toxicology.”
Other stakeholders should consider submitting any forensic analysis performed by ExperTox for an independent review, the commission said.
-----------------------------------------------------------------------
HEADING: "Texas lab's licence suspended into Pennsylvania sex assault case," by Reporter Scott Gordon, published by NBC, on August 3, 2022. (Thanks to Dr. Michael Bowers of 'CSIDDS': Forensics and Law in Focus, under the heading: "More junk toxicology testing affects many criminal cases.")
SUB-HEADING: "ExperTox engaged in 'professional misconduct' Texas Forensic Science Commission says."
GIST: "A Texas laboratory’s license to do drug testing in criminal cases has been suspended after an investigation found the lab submitted inaccurate test results and engaged in misconduct.
The lab, ExperTox, which is located in Deer Park near Houston, and its vice president and lab director, Ernest Lykissa, were faulted by the Texas Forensic Science Commission for their work in a Pennsylvania sexual assault case.
The investigation also found Lykissa violated state regulations by failing to obtain a forensic analyst license.
According to commission rules, ExperTox’s license will be withdrawn for two years. It has 30 days to appeal the ruling.
ExperTox managers did not respond to repeated phone calls and an email seeking comment.
A woman who answered the phone at the company said Lykissa was unavailable.
The commission’s investigation started after a prosecutor in Philadelphia filed a complaint last year questioning ExperTox’s work in a case involving a police officer who was arrested in a 2019 sexual assault case.
At the time, police said the victim was a 21-year-old woman, according to NBC Philadelphia.
“He may have provided her without her knowledge some kind of intoxicant that rendered her unable to appraise what was actually going on,” Capt. Sekou Kinebrew said in an interview after the officer’s arrest.
The prosecutor hired a local company that contracted with ExperTox to analyze a sample of the victim’s hair, according to the commission’s report.
In February 2020, an ExperTox test found the hair tested positive for the drugs lidocaine and THC, the active ingredient in marijuana.
“If these drugs were administered to her without her consent, then that could constitute a drug-facilitated assault by the perpetrator,” the commission quoted Lykissa’s report as saying.
‘CLINICAL USE ONLY’
The initial report included the caveat, “CLINICAL USE ONLY, NOT FOR FORENSIC PURPOSES.”
Notified about the prosecutor’s complaint in January 2021, “Lykissa responded by email stating he was surprised because the case was clearly labeled as for only clinical purposes,” the commission said.
Lykissa also defended his work by telling investigators he remembered telling the prosecutor, “I do not want to testify in this case. I cannot offer you anything scientifically valid.”
But the prosecutor disputed Lykissa’s claim, telling investigators Lykissa told her the drugs were a “witch’s brew” and that “she got him.”
The report says Lykissa also told investigators he was not aware the hair testing would be used in a criminal case because it was submitted to him by an intermediary company without documentation.
But the commission report said “the record was clear” he knew it was in connection with a criminal prosecution and had communicated directly with the prosecutor.
The commission also received a second copy of the lab report which omitted the disclaimer that it wasn’t for scientific purposes.
The DA’s office paid an additional $1,315 for the new version of the report, which was identical to the original, except the one line about “clinical purposes” had been removed, the commission said.
COMMISSION HIRES EXPERT
The commission hired an independent expert to review the case.
The expert said ExperTox used unapproved testing procedures and that it “never should have issued” its report.
In fact, the positive result for lidocaine should have been negative using accepted standards, the expert said.
The expert also said the company’s “significant upcharge” for a “simple removal of the disclaimer…should raise some ethical concerns” for ExperTox.
WRONG TEST RESULT
In a July interview with investigators, Lykissa said “ExperTox does not have a forensically validated hair-testing method” and acknowledged the lidocaine test result in the Pennsylvania case was “well below” its own reporting threshold, the commission said.
Furthermore, ExperTox never produced its raw data validating its test, which the law requires labs to keep, the panel said.
Prosecutors dropped the rape case for lack of evidence.
“Since this is an active and open prosecution we have no further comment at this time,” spokeswoman Jane Roh said.
The defendant’s attorney did not return calls seeking comment.
WACO CASE
Fort Worth defense attorney Christy Jack represents a former Waco daycare owner convicted in 2015 of murdering a child after Lykissa testified about the presence of Benadryl in hair samples of other children in her care.
The suspect won an appeal based on faulty jury instructions and is awaiting a re-trial.
Lykissa was set to testify in the new trial, Jack said, until she learned of the recent developments involving the Texas science commission and the Pennsylvania case.
“We were the ones who notified the prosecution of the problems with their witness,” Jack said.
Lykissa told the commission he worked on only about five similar cases.
But Jack said the lab’s troubles could affect numerous other cases in Texas and around the country.
"There's no telling how many cases his testimony, his questionable testimony, has affected,” Jack said.
According to ExperTox’s website, the company also does private drug testing for employers and other testing such as COVID-19.
The commission’s jurisdiction is limited to investigating labs’ work in criminal cases.
Separately, the commission obtained a document from the College of American Pathologists, which accredits labs nationwide, showing it put ExperTox on probation in May.
CAP started its own investigation after the Texas panel forwarded information about its concerns months earlier.
CAP’s probation notice, which was attached to the commission’s report, faulted ExperTox’s “lack of continuous compliance” with quality management standards.
CAP did not respond to an email for comment.
EXPERTOX PLANS TO APPEAL
Representatives for ExperTox said they plan to appeal the findings and work to maintain its accreditation. Their statement is below:
"ExperTox disagrees with the Texas Forensic Science Commission’s investigative report and has retained counsel to pursue an appeal. At the designated time, the Company will respond to each of the report’s unsubstantiated findings and conclusions. In addition, the Company is working with the College of American Pathologists to maintain its longstanding accreditation. Accordingly, we do not have any comment outside of the recognized legal and administrative channels at this time.""
The entire story can be read at:
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
