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A war for control of forensic science

Felch and Dolan are Times staff writers.

In June, Orange County Dist. Atty. Tony Rackauckas made a bold grab for a crown jewel of local law enforcement: the DNA unit of the sheriff’s crime lab.

With the lab’s director out of town and the sheriff recently deposed by corruption charges, Rackauckas submitted a brief agenda item to county supervisors two business days before their regular meeting.

“Our aim is to make significant changes in the way forensic DNA analysis is conducted,” Rackauckas wrote. The D.A.'s office is “the only organization capable of harnessing the vast potential of forensic DNA technology.”

The move capped a three-year tug of war for control of DNA analysis in a historically conservative county where putting criminals behind bars can bring substantial political rewards.

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“I have never experienced anything like it in more than 30 years of law enforcement,” recalled Sheriff Sandra Hutchens, who took over the department in the midst of the battle. “I couldn’t get my brain around it, and no one I’ve spoken with could either.”

To end the bickering, one member of the Board of Supervisors proposed putting the county’s entire crime lab in the hands of an independent agency headed by a scientist. But, in the end, the board split control among the political players: the D.A., the sheriff and the county chief executive.

The power struggle in Orange County is a sign of an intensifying national debate over who should control forensic science -- a question that has taken on new importance with the explosion of genetic evidence.

More by happenstance than design, crime labs most often are run by law enforcement agencies: police and sheriffs or, in three California counties, prosecutors. Many experts say that arrangement has left the science vulnerable to undue influence and lax oversight, leading in some cases to wrongful convictions.

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“Many of the forensic scandals -- cases of outright fraud or undue pressure -- are precisely the result of this institutional coziness,” said UCLA law school professor Jennifer Mnookin, who calls the arrangement “incredibly dangerous.”

For these reasons, a landmark report by the National Academy of Sciences, a research arm of the federal government, is expected to recommend next year that control of crime labs be given to independent scientists, according to three people who have read the confidential draft report.

Rackauckas has pushed hard in the other direction. He dismissed concerns about potential conflicts of interest, saying prosecutors are uniquely qualified to ensure that evidence is handled properly and that priorities are set to prevent lab backlogs.

In the years leading to his attempted takeover of the sheriff’s DNA unit, the district attorney spent hundreds of thousands of taxpayer dollars in a bid to prove his point. He essentially built his own system of DNA collection and analysis, in some cases duplicating what was being done by the sheriff’s lab.

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His efforts fell largely outside the regulations that govern state and national DNA systems, which were designed to prevent abuses and protect the privacy of innocent people.

Rackauckas and his admirers point to his successes, particularly in using DNA to solve property crimes such as auto theft and home burglaries. The bane of urban areas, these offenses typically result in charges 10% of the time. In a pilot project using DNA evidence in selected cases, he was able to double that rate, according to statistics he submitted to the board.

“Mr. Rackauckas is the most innovative and aggressive of D.A.s in the DNA area,” said Kern County Dist. Atty. Ed Jagels, who runs his county’s crime lab. “Among D.A.s, I think there’s some respect for what Mr. Rackauckas has done, and a certain measure of envy.”

Wrongful conviction

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Some of the deepest concerns about the Orange County D.A.'s influence over forensic science come from analysts in the sheriff’s DNA unit.

In interviews, several said they were shaken by a 2005 carjacking case in Buena Park.

Evidence against 20-year-old James Ochoa was conflicting: Two victims identified him as the culprit, based on a photograph police showed them. But half a dozen family members said Ochoa was home eating at the time of the crime.

Buena Park investigators hoped DNA from a baseball cap and shirt left in the stolen car would nail the case.

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“If it doesn’t match . . . we’re not proceeding,” the detective told DNA analyst Danielle Weiland, according to Weiland’s deposition last January in a lawsuit by Ochoa.

Both the cap and shirt contained a mixture of DNA from multiple sources. Complex cases like this can be subject to different interpretations, experts say, requiring an experienced and impartial eye to decipher accurately.

Weiland, who had been a DNA examiner since 2001, found a distinct DNA profile from an unidentified person, but it did not belong to Ochoa. Convinced that the profile belonged to the perpetrator, she submitted it for comparison to those of known offenders in the national database system, hoping for a “match.”

Meanwhile, her lab report ruled Ochoa out after determining that three of his genetic markers were not present in the mixture -- a finding confirmed by two other lab workers. Weiland then got a call from Camille Hill, a member of Rackauckas’ DNA unit.

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Hill “asked me to change the conclusion that Mr. Ochoa was excluded,” Weiland said in the deposition.

In a meeting at the crime lab later that day, Hill suggested that Ochoa’s missing genetic markers might not have been detected, Weiland said. Generally speaking, a match means all markers in a genetic profile are present, but Hill was arguing that markers might have been missing because of degradation of the sample or extremely low quantities of DNA.

In an interview with The Times, Hill said she was not applying pressure, just asking for an explanation. Despite the three missing markers, the mixture contained a substantial number of markers that did match Ochoa’s profile. Hill said that left open the possibility that Ochoa’s DNA was present.

For 25 minutes, the two sides had a “hostile” exchange about the evidence, Weiland testified. In the end, Hill accepted that the lab would not change its conclusion.

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Prosecutors decided to go to trial anyway. After both witnesses identified him in court on the third day of testimony, Ochoa accepted a plea deal, over the objection of his attorney. He was sentenced to two years.

Eight months later, the genetic profile that Weiland had submitted to the national database was matched to a convicted offender in California. Jaymes McCollum bore a passing resemblance to Ochoa and had numerous carjackings on his record. When questioned, he confessed to the crime.

Ochoa was released from Centinela State Prison in the Imperial Valley, where he had been knifed while serving his sentence. He received a $550,000 settlement for his wrongful conviction.

Powerful tool

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The power of DNA lies in its ability not just to solve crimes but also to transform political careers.

Former Orange County Sheriff Michael S. Corona built his reputation as “America’s Sheriff” thanks in large part to his lab’s use of DNA to solve the 2002 murder of 5-year-old Samantha Runnion.

But by 2005, the year Ochoa was arrested, Carona had been weakened by a growing corruption scandal, and Rackauckas had moved to take a greater role in the county’s DNA analysis.

Flush with money from a voter-approved reserve fund for law enforcement, the top prosecutor sought to use DNA to solve some of the 40,000 property crimes committed in the county annually. A similar approach in Britain was touted as a way to catch criminals early in their careers before they could progress to more serious crimes.

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To increase efficiency, Rackauckas offered to have his prosecutors prioritize crime scene evidence before it was sent to the DNA lab for testing. Carona balked, Rackauckas said. The sheriff also wanted to target property crimes using DNA but sought to do so without inviting the D.A. into the lab.

Many saw the clash as a sign of DNA’s growing political cachet.

“DNA has changed law enforcement,” said Dean Gialamis, director of the Orange County Sheriff’s Department crime lab. “It’s increased so much there’s the potential to prevent crimes in the future, not just solve crimes. There’s a desire not just to be a part of it but to control it.”

Frustrated, Rackauckas decided to create his own DNA testing system, one that the sheriff’s lab would play no part in.

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Parallel system

Rackauckas hired a private DNA lab in Northern California to analyze what he considered the most promising evidence in property crime cases.

But the plan ran into a problem: Private labs are not allowed to upload DNA profiles into the national database system for comparison to the profiles of known felons.

The Orange County’s sheriff’s lab offered to upload the profiles for free, but Rackauckas chose to work around the sheriff, using $500,000 approved by the board.

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“It wasn’t their program and I didn’t want to give them control over it,” Rackauckas said in a recent interview.

That’s not what he told Jagels, when he turned to the Kern County D.A. for help. “He indicated the O.C. lab was refusing to review and upload results for him,” Jagels said. “My suspicion is that politics may have played some part in the problem.”

Rackauckas said in an interview that he didn’t intentionally misrepresent the issue.

Jagels said he was happy to help Rackauckas. At the time, Kern County had a backlog of DNA cases awaiting analysis. Rackauckas proposed paying the private lab to analyze Kern County’s cases if Jagels’ lab would upload Orange County crime scene profiles into the national database.

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The agreement assumed that taxpayers in both counties were getting their money’s worth, but Jagels confirmed there are no records to guarantee it.

“I’m sure we could create it if we needed to,” he said.

Recently, the arrangement changed so Orange County is now directly paying Kern County for the work it does.

Though highly unusual, Rackauckas’ approach does not violate any of the rules governing use of the national database system, state officials said.

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One step further

In January 2007, Rackauckas took his aggressive DNA program a step further. In addition to looking for matches in the national database, he decided to build his own, using $875,000 approved by the county Board of Supervisors.

“Most crime that happens is local,” Rackauckas said in an interview. “And it’s a relatively small group of people committing a large percentage of the crime. So a local database makes sense.”

Creating one would allow the D.A. to avoid federal and state rules that limit who can be included and how a database can be used. Most DNA databases include only those convicted of a felony and, increasingly, those arrested on suspicion of a felony.

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But in 2004, California voters approved a ballot initiative, Proposition 69, that exempted local databases from these limitations. Rackauckas’ deputy, Hill, was one of four principal authors of the measure.

For the last year, the D.A.'s office has asked for DNA samples from certain people who plead guilty to misdemeanors such as petty theft or trespassing. They can refuse, Hill said, but they’ll get a less favorable deal in return.

The same is being done with gang members when they are served with a civil injunction.

“We ask them if they’ll give us a DNA sample, and they pretty much always say yes,” Rackauckas said with a chuckle. “Once they know we have their DNA sample on record, they might have a greater tendency to behave.”

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So far, 4,000 people have given DNA samples and signed a consent form. The D.A. expects to begin searching the database for matches to crime scene evidence in the spring.

Similar DNA databases are maintained by some police agencies elsewhere, including in New York and Florida. Because they operate outside the state and federal guidelines, critics call them “rogue databases.”

Rackauckas’, however, is the only one known to exist outside an accredited crime lab.

His staffers say they are voluntarily building in many privacy and quality control safeguards required by crime labs, in part to protect the database from legal challenges.

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Out in the open

Having notched some successes and built his own genetic database, Rackauckas grew bolder.

First, he asked the Board of Supervisors to approve construction of a $4.5-million DNA lab that would fall entirely under his control and speed up DNA analysis on property crimes.

The sheriff’s lab, still in turmoil after Carona’s indictment on corruption charges and resignation earlier this year, countered that it could expand the existing lab’s capacity for $3 million less.

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By this time the fight between the two departments was out in the open, with charges of incompetence and dishonesty being exchanged in the press.

In early June, the week a new sheriff was expected to be named, Rackauckas raised the stakes yet again with his abrupt proposal to take over the sheriff’s DNA unit.

While the matter was under review, board Chairman John Moorlach suggested that the entire crime lab be taken out of the hands of elected officials and put under a new independent agency. “We want to end the rancor and the turf battles,” said Mario Mainero, Moorlach’s chief of staff. “The science sure seemed to be caught up in all the politics.”

Instead, in October, the board created a joint authority composed of the new sheriff, the county chief executive and Rackauckas to run what had been the sheriff’s crime lab, including overseeing scientific policy.

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In approving the set-up, the supervisors ignored the advice of James Ochoa, who, in a letter from his new home in Texas, urged them to keep forensic science out of the hands of law enforcement entirely.

“If you allow this proposal to go through,” he warned, “you can expect future injustices like what happened to me.”

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jason.felch@latimes.com

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maura.dolan@latimes.com

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About this series

This is the fourth in a series of occasional articles examining how DNA evidence is transforming criminal justice. For more information, go to latimes.com/dna.

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