Dealing for DNA

First of two parts.

Wednesday, July 28, 2010 | The Orange County District Attorney's Office is collecting DNA from tens of thousands of people charged with misdemeanor offenses even though the samples can't be used in state and federal law enforcement databases.

Known as "spit and acquit," the DA's program is aimed at those who commit relatively low-level crimes like petty theft, drunken driving and some drug possession cases. Suspects get their charges dropped in return for paying $75 and allowing technicians to swab their mouth for a DNA sample.

District Attorney Tony Rackauckas has said he started the program several years ago as a response to the backlog of unanalyzed DNA collected by local law enforcement from burglary and other low-level crime scenes. State and federal officials said they know of no similar program in the state.

Civil liberties advocates are leary of "spit and acquit," saying it opens a new batch of privacy concerns, and some local attorneys complain of lax rules and little oversight governing when it is appropriate for the DA's office to take the DNA.

Since beginning the program in 2007, the office has collected about 22,000 samples, according to a May county grand jury report, but only three of those samples have helped investigators with cases.

However, DA personnel told the grand jury that 80 percent of all crimes are committed by just 8 percent of repeat offenders, making it necessary to collect a huge number of DNA samples.

Samples taken by the DA are left out of two of the largest DNA databases in the nation. Neither the state nor the FBI will accept DNA from misdemeanor suspects because of federal laws and other standards intended to control how the samples are used.

"DNA profiles from the Orange County, Calif., District Attorney's misdemeanor plea bargain database are not authorized to be placed in the National DNA database," FBI spokeswoman Ann Todd said in an email.

Rackauckas declined to comment for this story. His office also would not comment about its DNA program for a news story last year in the Los Angeles legal newspaper, the Daily Journal.

When DNA samples are taken under the DA's program, they're sent to Bode Technology Group, Inc., in Virginia for analysis because the district attorney's office doesn't have a lab. The results from the Bode analysis are what make up the misdemeanor database.

A New and Complicated Frontier

DNA-matching technology is arguably the most important investigative tool ever developed for law enforcement. In recent decades, it has not only helped police identify countless suspects, but it has also helped overturn many wrongful convictions.

Without DNA technology, state law enforcement officials likely never would have identified and arrested Los Angeles' Grim Sleeper suspect, Lonnie David Franklin Jr. They caught Franklin, who is suspected of serial killings, by connecting his DNA to his son's, who had been convicted of a felony and had his DNA taken. California is the first state in the nation to use the "familial" DNA technique.

However, as DNA technology improves, law enforcement's use of this unique indentifier of individuals is coming under increased scrutiny.

Privacy advocates, such as the American Civil Liberties Union, worry about potential abuses. The ACLU is battling the state over a new law that allows law enforcement agencies to take DNA from people arrested on suspicion of -- but not convicted of -- felonies.

In Orange County, some defense lawyers and prosecutors, say the DA's program is unevenly applied.

There is a written description listing when DNA should be requested for petty theft, tresspassing and other minor offenses. But according to a variety of sources, Rackauckas has established few, if any, publicly known controls to ensure prosecutors are acting appropriately when they seek DNA from misdemeanor suspects.

Peter Bibring, a staff attorney for the Southern California ACLU, said there should be legal standards for what Rackauckas is trying to do.

"He's making up his own rules," Bibring said.

According to the grand jury report, DNA samples should be collected and misdemeanor charges dismissed only for first-time, low-level offenders. The theory is that it will save money in court costs and act as a deterrent if the defendant knows his DNA is on file locally.

However, one Orange County lawyer who asked not to be identified because of possible harm to clients, told of a person with a long felony rap sheet who was offered and accepted the DA's deal to pay $75, give a DNA sample and go free.

In another case, the lawyer said someone who had a doctor's certificate to use medical marijuana was arrested but didn't have the physical certificate and therefore was charged with possession.

Normally, the lawyer said, such defendants simply take the certificate to court and the district attorney would move to dismiss the case. But in this instance, according to the lawyer, the DA's office insisted on the defendant agreeing to offer a DNA sample, which the defendant obliged.

One County, Two DNA Programs

Orange County has two DNA collection systems. DNA for major crimes, such as murder, is collected by the Orange County Sheriff's Department from crime scenes and from those arrested on suspicion of felonies. The department's lab is accredited and contributes DNA reports to the state and FBI DNA databases.

But a backlog of major cases in the mid-2000s meant that lesser crimes like burglaries might not have DNA analysis completed for as long as four months.

It was those delays that spurred Rackauckas to seek financial support from the county Board of Supervisors to begin his own DNA collection system, concentrating on lesser crimes in an effort to speed up solving such cases.

He based the Orange County misdemeanor program on one in England, where, according to Rackauckas' account in an Orange County Register article, the Metropolitan Police in London get crime scene results on DNA tests within days, not months.

A key to British success is a massive DNA database that includes convicted felons, people who have been arrested but not convicted of a crime, people who have been arrested but not charged and even children who have been picked up for breaking the law. The English database has been controversial for a variety of reasons, including the difficulty of getting DNA removed from the database if a suspect is determined to be innocent.

Rackauckas won support from the Board of Supervisors for his misdemeanor program.

Next in this series: Should forensics labs, including those that test DNA, be run by independent agencies rather than law enforcement?

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