D.A.'s DNA database growing in O.C.
The Orange County district attorney’s office has nearly quadrupled its DNA database over the last nine months, to about 15,000 individual profiles, and officials say they hope to start using it to identify criminal suspects by early next year.
The agency’s effort to build a database exempt from the rules that govern state and national DNA repositories has made Orange County unique among local governments in California. Much of the rapid growth has come from cases in which prosecutors drop charges against low-level offenders who agree to submit DNA samples.
Critics have questioned whether it’s appropriate to gather DNA from people not convicted of a crime.
One such defendant is Charlie Wolcott. Early last year, Wolcott nervously walked into Orange County’s Central Justice Center in Santa Ana and stepped into Department 46. The software engineer and Gulf War veteran had never appeared in court before or been cited for anything more than a speeding ticket. He had been summoned as a result of a citation he received months earlier for allegedly trespassing on railroad property near the Tustin Metrolink station.
Wolcott says he was innocent because the no-trespassing sign was yards away from where he was stopped by a plainclothes deputy as he walked along a shortcut away from the tracks. But as Judge James H. Poole described court procedures to the roomful of people awaiting their hearings, Wolcott grew increasingly worried about the possibility of being convicted.
“I’m freaking out,” he said, recalling the scene.
Before he was called in front of the judge, Wolcott and another defendant, who was facing a felony charge of personal-use possession of marijuana, were called into a soundproof room in the back of the court. There, Deputy Dist. Atty. Nicholas Zovko made them an offer.
“He takes me and one other guy to the back of the courtroom, and says basically, ‘The district attorney’s office would like to make a deal with you,’ ” Wolcott said. “ ‘If you give a DNA sample, we will drop all charges.’ ”
About half of the samples in the database are from people who have accepted that offer, said Susan Kang Schroeder, a spokeswoman for the district attorney’s office. People charged with nonviolent misdemeanors such as petty theft or trespassing are allowed to give DNA and have their cases dropped. In January, the option was also extended to those charged with certain personal-use drug possession felonies.
Wolcott’s case is “a perfect example of a minor thing, where we gave him an opportunity to dismiss the case without having any further consequences,” Shroeder said.
Wolcott, 40, says he regrets his decision. But “I felt I had no choice to get out of this unscathed unless I gave a DNA sample,” he said. “It just seems like I was roped into the court system just to get my DNA.”
Schroeder, however, said Wolcott “really got the better deal.”
“He was explained everything as per the instructions of our office,” she said. “Our office isn’t interested in taking anything forcibly from anyone. It’s completely voluntary.”
The program has won support from some defense attorneys and others.
“People that are coming into the system for the very first time don’t get a case filed against them,” said Carol Lavacot, a defense attorney based in Irvine. “It’s a second chance.”
Judge Poole has had cases dismissed in his courtroom for a DNA sample. He said he wasn’t aware that there was a formal program until recently, but had no objections to the district attorney trying to help clear up a high-volume calendar, save taxpayer money and give people the chance to avoid criminal records.
“It’s not an ideal situation, but the program can have some benefits that you just can’t ignore,” he said.
But the program doesn’t sit well with others, who express concern over who gets offered the deal, how the data will be managed and what it will be used for.
The district attorney’s database is “highly unusual” because it is not managed by an accredited crime lab, said Beth Greene, president of the American Society of Crime Lab Directors and chief of forensic services at the Florida Department of Law Enforcement’s Pensacola lab.
“This whole concept of voluntary sample-building and getting people to plead for less is not the way state databases are run,” she said. “There are no special arrangements made. You get simple samples collected per the law. In our opinion that safeguards the samples in the database.”
Some legal observers question whether people would be targeted on low-level technical crimes in an effort to expand the database.
“That seems backward,” said UCLA Law School professor Jennifer Mnookin. “I’d like to see what institutional protections they’re putting into place.”
But Barry Fisher, retired crime lab director for the Los Angeles County Sheriff’s Department, said the debate over the use of DNA in courthouse deals is more a public policy issue than a civil liberties one. The Orange County agency makes a compelling argument that it is trying to use the technology to identify those who have not made it into the state or federal databases, he said.
“Prosecutors are forever making these pre-trial deals with defendants. . . . This is just a different version of something that’s been going on for just about ever,” he said. “The fair question you can ask, and it’s a legitimate question: Is the defendant being adequately informed and advised of what the consequences are?”
Jennifer A. Friedman, a Los Angeles County deputy public defender, found it troubling that many of those being offered the option of giving DNA do not have legal representation. “If I was a citizen of Orange County, I would be very interested in the racial and socioeconomic profile of the individuals in that database,” she said.
People who accept the deal sign a waiver that explains the rights they are giving up and the fact that their sample will be put in the Orange County district attorney’s DNA database, which is separate from the Department of Justice database.
But Friedman believes people need a “physically present” lawyer to answer questions.
“Even a fairly well-educated individual is not going to be aware of what they’re going to do with the DNA sample, and the implications down the road,” she said. “Not only for you, but for your family members. . . . There’s no way to argue this is informed consent.”
Those implications include the ability to use partial or familial matching to help solve cases.
Schroeder, however, said the agency is “not doing familial searches and we do not have any plans of doing familial searches.”
Friedman acknowledged that it would be a “tough sell” for an attorney to tell someone, even if they are innocent, not to take the dismissal and urge them to continue a time-consuming, possibly costly and ultimately unpredictable legal process.
“To have prosecutors themselves managing forensic science seems to me to be an increasingly risky enterprise,” Mnookin said. “It puts a lot of implicit and explicit pressures [on the process], where everybody wants to find the right guy, but boy, everybody wants to find a guy, too.”