IFL Blood Draw Cross examination of nate Stevens

By November 10, 2016 No Comments

BY DEFENSE COUNSEL:
Q. Dr. Stevens, you got fired from IFL, didn’t you?
A. Reduction in force.
Q. Any idea why your personnel file says you were involuntarily terminated due to your performance?
A. I didn’t know how they wrote it up. I was told it was a reduction in force due to being two lab directors.
Q. You haven’t looked at your personnel file?
A. I’m not privy to that, no.
Q. And if they referred to your performance, not a reduction in forces, but termination that is involuntary based on performance —
A. I’m sorry. I was told it was reduction in force. I haven’t seen that.
Q. Well, perhaps you should contact your HR department.
A. Okay.
Q. Because if it’s based on your performance, would you care to share with us, Dr. Stevens, what that deficiency in your performance might have been?
A. If I haven’t seen it and I haven’t asked then —
Q. Well, you don’t need a piece of paper to tell you if your lab has told you you were being fired based on your performance.
A. I was not aware of that, ma’am.
Q. You indicated to the jury that it was a reduction in force, in the work force, a reduction in the work force and that your job was redundant, correct?
A. Correct.
Q. But if you will give me a moment, I will find your personnel file. I may move on to other topics while we look for it. But I have your personnel file here, sir, and I will show it to you.
Defendant’s Exhibit No. 4. Take a look at it. Termination involuntary.
A. Uh-huh.
Q. Performance.
A. I see that.
Q. That’s not redundancy is it, sir?
A. That’s a different way. I don’t know what that pertains to. I would have to ask them.
Q. Well, let’s talk about your performance. You’ve had to fire three analysts at your lab?
A. Correct.
Q. Right? Right?
A. Correct.
Q. Cherrie Lemon is one of them.
A. Yes.
Q. Aubrey Norberg is another one. And Elizabeth Feller is another one, right?
A. Correct.
Q. Alexandra Bills saw the handwriting on the wall and she went home after only one year of moving up to, transferring from Austin up here to start her new job in a lab, she saw the handwriting on the wall and went back to Austin, didn’t she?
A. I knew she went back to Austin.
Q. And then you got fired?
A. I did.
Q. And when somebody does something wrong in the lab such as switching vials or setting a bottle of acetone out, you’re supposed to — that happened under your watch, by the way, didn’t it?
A. There was an acetone, yes.
Q. Yeah, there was. And so clearly that person wasn’t following the procedures that you were talking about earlier that your lab, that you do one vial at a time and all that. They weren’t doing that, were they?
A. Yes, they were.
Q. Well, I believe that you said, sir, that Cherrie Lemon was terminated because she removed a worksheet without notifying you?
A. You asked me a different question originally. You’re right. Cherrie, in that instance, didn’t follow procedures.
Q. But there was a whole lot more to Cherrie than that, right?
A. Correct.
Q. We just talked about two of them, switching vials and leaving a bottle of acetone sitting in the lab that could potentially contaminate all the other blood samples that are in the lab, that are open, right?
A. You’re misinterpreting information about switching samples.
Q. Okay. Well, let me ask you this. Did the San Antonio Police Department quit doing business with your lab because Cherrie Lemon screwed up hundreds of cases?
A. They quit doing business with us, that’s correct.
Q. And did you indeed write up a report that said you were, because you are a for-profit lab that that constituted about 60 percent of your business and you worried about the loss of revenue?
A. I don’t remember the report word for word. If you have it, I would be happy to read it.
Q. Sure. I would be happy to show it to you.
In the form of a disciplinary report on Cherrie Lemon, isn’t it? You did write up disciplinary reports, correct?
A. Yes, ma’am.
Q. I tell you what. I’ll get something and take that loose in a minute. But let’s just mark this particular report we’re talking about.
Let me show you Defendant’s Exhibit No. 5. Do you recognize that as a disciplinary report?
A. Yes, I do.
Q. Would you please read the underlined part, not out loud, just to yourself, to refresh your memory on whether or not you were concerned about the loss of revenue for about 60 percent of your business?
A. Yes, it says “the client affected by this” —
Q. Don’t read a document not in evidence. Answer my question.
A. I’m sorry, ma’am. I misunderstood.
Q. I asked you if you wrote up a report where you said you were concerned about the loss of revenue of about — that makes up about 60 percent of your business?
A. Yes, ma’am, that’s included here.
Q. And you didn’t remember, but now you do since you’ve read it?
A. Ma’am, I see a lot of documents. I don’t remember everything.
Q. Well, you certainly remember losing 60 percent of your business. And that’s a lot more than just a worksheet that was not reported to you by Cherrie Lemon; isn’t that a fact, Mr. Stevens?
A. We had some other issues with Cherrie.
Q. You ran a sloppy shop.
A. Ma’am, that’s not accurate.
Q. Would that be part of your performance? It happened on your watch. Or is there some other part of your performance you’re not sharing with us?
A. Ma’am, that looks — I don’t even know about that document. I’ve never seen it. My initials are on it. For all I know, where it says involuntary and it was performance, maybe that’s a dropdown. I don’t know.
Q. Maybe it’s a what?
A. A dropdown on their form. Like a list. I have no idea about that.
Q. The HR department has your personnel file that says you are involuntary terminated based on your performance and you don’t have a clue what that’s about?
A. I would like to ask them.
Q. Now, you also had disciplinary — you led the jury to believe the only reason Cherrie got fired was because of a missing work report that she — or worksheet that she didn’t report to you. But that’s not true, is it?
A. That was the final reason why we let her go.
Q. Oh, now it’s the final reason. But when you testified earlier you made it sound like that’s the only thing she did.
A. My mislead was not intentional.
Q. Well, under your watch she was busy talking on the phone while she was doing her lab work and you wrote up a disciplinary on that?
A. I would like to read it for myself if I may.
Q. You want me to come up there every time, I will. You don’t remember some of this?
A. Ma’am, like I said, I see a lot of things. I don’t remember everything.
Q. How many people you got working in that lab?
A. I don’t know how many are there right now.
Q. By the way, where are you working right now?
A. I’m working at a foreign car repair shop.
Q. Where?
A. A foreign car repair business.
Q. A foreign car —
A. Yes, ma’am.
Q. — repair business?
A. Yes, ma’am.
Q. Doing what?
A. I’m working as a service writer.
Q. So you’re not in the lab business anymore?
A. No, ma’am.
Q. When did you tell the prosecutors you were working in the foreign car, what did you call it, service department?
A. Yes, ma’am.
Q. When did you tell them that?
A. I don’t think I was ever asked.
Q. So it’s news to them right now?
A. Probably, yeah.
Q. Let me show you what’s marked as Defendant’s Exhibit No. 6 and ask you whether or not Cherrie Lemon made excessive phone calls while she was tending to her duties?
A. Yes, that’s written here.
Q. And that was under your watch, right?
A. I was the laboratory director.
Q. So the answer is yes?
A. Yes, ma’am.
Q. Now, when mistakes get made in your lab, you’re supposed to report those mistakes. You’re supposed to write up something called a corrective action report; is that right?
A. That is correct.
Q. Some people refer to them as a CAR?
A. Correct.
Q. And can you tell us how many corrective action reports you had to write up on Cherrie?
A. Not the number off the top of my head, but I know she had a few.
Q. I have a few of them. Do you remember corrective action report 1305?
A. I know the number. I don’t know what’s on it.
Q. The one where samples were switched?
A. May I see it?
Q. Sure. While I’m at it, for the record, I’m going to bring you corrective action report 1305, 1301, 1304, there’s also 1308, 1411, 1401, 1412, 1406 and 1306. And you’ll find them all in this pile of stuff I have. But here’s a few of them.
Here’s Defendant’s Exhibit 7, 8 and 9 for you to look at. Those are some samples of the CARs, right?
A. That is correct.
Q. And that’s something you write up every time somebody does — that you catch somebody doing a boneheaded thing; is that right?
A. That’s correct. So it’s a part of the quality system. People aren’t perfect, we make mistakes, so we document and fix them.
Q. To err is human?
A. Yes, ma’am.
Q. There were a lot of errors in your lab. Maybe why you’re not lab director anymore?
A. Ma’am, I would like to read this one.
Q. Okay, sure. Go ahead.
A. These are all for the drug lab, not for blood alcohol.
Q. There are errors in your lab, aren’t there?
A. As there would be in any lab.
Q. I’ve got some more in there. I’ll let you look through them as well. You can try to minimize that if you will.
(Brief pause)
Q. Okay. To be clear, Dr. Stevens, you said earlier you didn’t know how many CARs there were, corrective action reports, on Cherrie Lemon. You told the jury she got fired because of a worksheet. And so these are not necessarily in any order, but here is for you to look at and refresh your memory on how many there were.
Here is corrective action report 1304, Defendant’s Exhibit 7; 1305, Defendant’s Exhibit 8; 1301, Defendant’s Exhibit 9; 1308, Defendant’s Exhibit 10; 1411, Defendant’s Exhibit 11; corrective action report 1401, Defendant’s Exhibit 12; 1412, Defendant’s Exhibit 13.
Defendant’s Exhibit 13 or 14, we just made a mistake, is the exact duplicate of 1412. So it’s a different exhibit, same corrective action report. Defendant’s Exhibit (sic) 1406, Defendant’s Exhibit 15; and corrective action report 1306, Defendant’s Exhibit 16.
Do you remember now, sir, that you had to write up some corrective action reports on Cherrie Lemon for mistakes made under your watch in your lab?
A. Well, ma’am, not all of these pertain to Cherrie. But yes, I know I had to write them up. All I said was I don’t know how many.
Q. And it’s a far cry different than what you told the jury when you were testifying pursuant to the questions of the prosecutor on she was let go for one thing?
A. No. What I said — I said what the final thing she was let go for. Again, didn’t mean to mislead in that case.
Q. And those are just corrective action reports. That doesn’t even get to the disciplinaries that have gone on.
A. Correct. This is normal business operation in any laboratory that has accreditation.
Q. And all of those mistakes and corrective action reports were under your watch, which might affect your own performance, correct?
A. No, this is a good thing. This assures that the laboratory is working and the quality system is finding things.
Q. I’m sorry. That’s why you’re still working there?
A. Ma’am, like you say, I don’t know why it says there.
Q. Well, so when you have to write a corrective action report, you’re still supposed to also notify the Forensic Science Commission of problems in your lab as well, aren’t you, sir?
A. That is the quality director’s job. And if the issue that is found needs to go to them, then she would, or that individual, in this case it’s a woman, would decide that.
Q. And who decides if the issue is big enough to notify the Forensic Science Commission?
A. As I said, the quality director.
Q. That’s not you?
A. No, I’m the laboratory director.
Q. That’s Ms. Watts?
A. Yes, ma’am.
Q. She’s your quality lab director?
A. Quality director yes.
Q. And Ms. Elise Watts notified the Texas Forensic Science Commission only one time; isn’t that right?
A. I think that’s correct, yes.
Q. And yet we’ve got all of these mistakes that I only know a fraction of and you only self-reported, in other words, told it on yourself one time?
A. Because the others, if you go into the details, are minor issues.
Q. And so minor enough that you had to write up a corrective action report. So now you’re going to minimize these mistakes?
A. No, you’re misleading.
Q. Am I?
A. Anything that happens in the laboratory has to be per our accreditation, that it does not follow SOP, has to be documented. Even if it’s something simple. This is a good demonstration of how the quality system is working. We had these reviewed by our assessors, which are the people who come in —
DEFENSE COUNSEL: I object to nonresponsive, Your Honor.
THE COURT: Sustained.
Q. So while you’re busy trying to minimize these mistakes, you lost 60 percent of your business when the San Antonio Police Department lost confidence in your lab; isn’t that right?
A. While I was doing my job, unfortunately we lost a client. It’s business.
Q. And you don’t think that has anything to do with why you’re working at a foreign car place now?
A. Ma’am, like I said, I’m going to go and talk to HR and find out what that means.
Q. Now, let’s just talk about a few things that you mentioned. You tried to make it sound like the ASCLD certification was a big deal. You characterized what you told the jury trying to make it sound like it was a big important deal?
A. Yes, ma’am, it is.
Q. Now, here’s what they do. ASCLD notifies you, hey, we’re coming down to look at your lab, right? They don’t show up unexpected, right?
A. Correct.
Q. Correct?
A. Correct.
Q. And they say have ready for me and provide to me a couple of samples of your work, right?
A. Correct.
Q. And so you get to go in and find the absolute best representative sample of your work, right?
A. Sometimes that’s the case.
Q. Are you going to tell the jury that you showed ASCLD your worst work?
A. No. Sometimes the assessor will — they’ll request, say, 50 cases and we just have to pick 50 and then they will choose what they want to review from there.
Q. And my point is you’re the one that gets to select the cases you’re going to show ASCLD?
A. Not me personally.
Q. Your lab, sir —
A. Yeah, in some cases.
Q. — gets to go through and select, cherrypick the cases they want to show ASCLD?
A. If they choose to do that. I think it’s Elise who normally does it. She can pick whatever she wants.
Q. And you think that Elise is in there picking examples of her worst work to show ASCLD?
A. Ma’am, I’m not Elise. You would have to ask her.
Q. All right. And so that’s basically all it is. They let you know they’re coming and you get to cherrypick what you want to show them and if all is according to plan, then you get accredited?
A. No, there’s so much more to it than that.
Q. Yeah. And the rules for ASCLD say you’re not to come into a courtroom and try to make that sound like because you have that accreditation that things are going correctly in your lab on any given day?
A. Ma’am, I haven’t said — you’re putting words in my mouth.
Q. Well, you kind of insinuated that. Perhaps I am stating it pretty strongly, but what was the point of you talking about that to the jury if you were not trying to insinuate that? That’s what you were doing, right?
A. Well, ma’am, I was just answering questions.
Q. You were further trying to insinuate you knew something about Robert’s tolerance.
A. No, I wasn’t. If you heard what I said, I said in general.
Q. Yeah, in general. Well, you don’t know Robert Washington, do you?
A. No, ma’am.
Q. You don’t know if he drinks one beer a day or one beer every two or three times a year?
A. No.
Q. You’re asking the jury to assume something when you don’t have any evidence of it whatsoever; isn’t that correct?
A. No, I was just answering the question given to me.
Q. So to be clear, you don’t have any evidence of his tolerance, do you?
A. Oh, no.
Q. Okay. Now, while you — can you tell us where the samples of the blood that was taken from Robert’s tube and placed in the glass vials were kept and where the quality control is to tell us where they were kept from June 1st to June 3rd?
THE WITNESS: If I may refer to my notes, Your Honor.
THE COURT: Sure.
A. Are you referring to June 1stthrough June 16 of 2015?
Q. No. I’m referring to June 1st through June 3rd.
A. And what exactly is your question?
Q. Okay. I’m not talking about the blood vial that was received from the police. I’m talking about after that blood has been removed from a tube and put into the identical little glass vials for the purpose of loading it into the gas chromatograph, okay?
Where was that blood from June 1st to June 3rd?
A. Okay.
Q. And what documentation are you in possession of to prove it?
A. Well, ma’am, once they’re sampled, they would’ve been placed in the refrigerator.
Q. Once they’re sampled?
A. Correct.
Q. What about before they’re sampled?
A. They’re in the refrigerator.
Q. So who would’ve removed it from the refrigerator?
A. Alexandria Bills.
Q. And where is the documentation to show us that it was removed from the refrigerator by Alexandria Bills or anybody else?
A. On the chain of custody.
Q. I’m not talking about — let’s get clear again now. I’m not talking about the tube of blood that came from the police department.
A. Right.
Q. I’m talking about after it was taken out of that gray tube top and put into one of these glass vials, okay? It went somewhere from June 1st to June 3rd. Where did it go and how do you know it went there and where is your proof for it?
A. You would have to ask her what she did with them at that time.
Q. Well, as a lab director don’t you require a chain of custody for that blood?
A. Which exists for the samples, yes.
Q. I’m sorry?
A. I’m sorry, for the evidence. It exists for the evidence, yeah.
Q. I didn’t ask you about that.
A. I know.
Q. I just asked you about the chain of custody. Let me make myself really clear again, okay?
This is a chain of custody form. It’s in evidence, it’s State’s Exhibit No. 8. The jury has seen it.
A. Yes, ma’am.
Q. We’ll put it up so you can see it. You’ve seen it many times. No. 8, there it is. That’s the chain of custody for this vial —
A. Okay.
Q. — police vial.
Where is the chain of custody form for the blood that you’re testifying about on these results?
A. I see.
Q. The ones that went into the little glass vials, where is that chain of custody form?
A. I see. So at that time IFL did not document where those vials go. But they are labeled — after we sample them, they’re labeled and then the technicians have a procedure to follow.
Q. So your answer to my question is there is no chain of custody form, right?
A. Not for the sample, no.
Q. So your answer is I don’t know because we didn’t keep one, right?
A. Yes, ma’am.
Q. Even on this chain of custody form, State’s Exhibit No. 8, when blood is, in this case blood, is removed, there is a comment section over here, isn’t there?
A. Correct.
Q. And something is supposed to be written in that comment section as to the purpose for removing something from that refrigerator, isn’t it?
A. If needed.
Q. If needed? Well, there’s nothing here, is there?
A. No, there’s not.
Q. That’s because you didn’t require that procedure be followed at your lab?
A. The quality system — this was up to the quality director. It was not required at that time.
Q. Do you think it’s got something to do with why you’re working at a foreign car place?
A. No, ma’am.
Q. So you’re not — just to be on the positive side here — you’re not in possession of any documentation and there is none that exists that can tell us where that blood was from June 1st to June 3rd when Ms. Bills said that the testing was complete?
A. No, there’s no documentation.
Q. We don’t know who touched it, right?
A. Not on paper we don’t.
Q. We don’t know. We don’t know. We don’t know. We don’t know anything about it, do we?
A. Not on paper you don’t, no.
DEFENSE COUNSEL: I will pass the witness.

Francisco Hernandez

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