The DNA double helix. (Photo credit: unknown)

Second of two parts.

Friday, July 30, 2010 | Law enforcement can thank DNA technology for solving some of its biggest cases in recent years. But now scientists at the forefront of some of that technology are pushing to get out from under the control of prosecutors.

At the same time, some Orange County lawyers are questioning whether local Superior Court judges, faced with an explosion of DNA cases, are fulfilling their roles in guarding the integrity of the judicial system.

The two issues have become joined in Orange County as a result of District Attorney Tony Rackauckas’ creation of a DNA database for tresspassers, drunken drivers, minor drug offenders and some other misdemeanor crimes.

Racklauckas declined to be interviewed for this story.

“Scientific and medical assessment conducted in forensic investigations should be independent of law enforcement efforts either to prosecute criminal suspects or even to determine whether a criminal act has indeed been committed,” said a 2009 Forensic Sciences report from the National Academy of Sciences.

“Administratively,” the report added, “this means that forensic scientists should function independently of law enforcement administrators. The best science is conducted in a scientific setting as opposed to a law enforcement setting.”

Robert Shaler, a member of the committee that wrote the report and the retired director of Pennsylvania State University’s Forensic Science Program, used personal experience to highlight the importance of independent lab work.

At one point in his career, Shaler said he worked in a lab that was under the DA’s office in a Pennsylvania county. As part of his employment, he was expected to donate 2 percent of his salary to the District Attorney for his re-election campaigns.

He said the lab managed to remain “pretty independent” but the situation was healthier when he worked in New York City, where the forensics laboratory was under the Health Department.

Even when a law enforcement agency has a lab within its jurisdiction, Shaler said it is crucial that it has its own budget and is “functionally independent” so personnel don’t feel they are obligated to law enforcement.

Labs, he said, are supposed to serve both the defense and prosecution, and defendants should feel they are treated fairly.

Local Concerns

Orange County lawyers raised similar concerns, not just about the DA, but about judges.

Since 2007, the DA’s office has collected more than 22,000 DNA samples from those arrested on suspicion of misdemeanors, according to a May grand jury report. The idea is to amass so many samples that when smaller crimes, like burglaries, occur, law enforcement can quickly match crime scene DNA to a suspect.

But one lawyer who did not want to be named because of work with the DA, said the DA’s office is supposed to sit back and review evidence brought in by other agencies to see if there is enough substance to the case to prosecute it.

With DNA collection a high priority, the lawyer said there was a concern that the DA’s staff was saying it would file and then dismiss cases it normally wouldn’t handle, solely to add to the DNA database.

As part of the concern, the lawyer pointed to a case in which a prosecutor told a defendant the case would be dismissed if he gave DNA. When the judge was told that DNA collection had been added as a condition when it normally would have been dismissed anyway, the judge didn’t seem to care, the lawyer said.

“If that’s what the DA wants,” was the only thing the judge said, according to the lawyer.

Carole Levitsky, spokeswoman for Orange County Superior Courts, said individual judges may be seeing the impact of far more DNA-related cases, but as an issue, it hasn’t been raised within the court system as a whole.

But the issue of judicial approval of the Orange County misdemeanor system was raised this March by Erin Morgan Tinoco, a prosecutor with the Anaheim City Attorney’s Office, in an article she wrote for the Daily Journal, a Los Angeles legal newspaper. Because Anaheim prosecutes misdemeanors on its own, its cases are not subject to the DA’s database collection system.

Tinoco made it clear she was speaking for herself, not on behalf of her office, when she wrote about the Orange County DNA program: “When the prosecution makes a motion to dismiss a criminal case, the common practice is for the court to almost jokingly ask the defense if they have any objection and then grant the motion without any further inquiry. Everyone operates as if all that is required for a valid dismissal is the agreement of the parties.”

But, she argued, with the DA’s office in the database-building business and defendants looking for a quick exit from court, it’s up to the judges to make sure things are done properly.

Just because defense lawyers aren’t complaining loudly about the system, she wrote, “doesn’t mean there is not an injustice that is being committed against the community in the form of reduced offender accountability, reduced protection of sensitive genetic information and reduced regard for the laws created by the citizens of this state.”

The specific context for her article was a practice of the DA’s office to dismiss DNA misdemeanors “in the interests of justice.” She reminded the judges that it was up to them to determine if the dismissals truly were in the interest of justice, not just go along with the DA. As the result of her article, the DA’s office has stopped using the phrase.

But in the conclusion to her article, she reminded the judges that “it is the court that must be the community’s champion by ensuring criminal cases are administered in accordance with the law and towards the ends of justice.”

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