Supervisors Assert Themselves Against DA on ACLU Loss and DNA Collection

A majority of Orange County supervisors publicly asserted themselves against District Attorney Tony Rackauckas this week, forcefully questioning why his office gets to keep winnings from lawsuits but passes the bill to the rest of the county government when he loses and setting up a public confrontation next month.

Supervisors are also publicly questioning why the county is paying for the DA’s office to have its own DNA database when an existing statewide database already exists.

Two years ago, Rackauckas’ office received $12 million from a settlement with the car company Toyota.  A court order restricts that money to gang reduction efforts and business litigation, according to the DA.

Meanwhile, Rackauckas lost a lawsuit challenging one of his gang injunctions, along with an appeal of the case, and the county now has to find a way pay nearly $4 million in legal fees to the American Civil Liberties Union.

During a Tuesday special meeting to talk general strategy, County Supervisors Chairman Todd Spitzer and Supervisor Andrew Do wondered aloud why the county is paying for two separate DNA databases.

“There’s no point in multiple jurisdictions having their own database,” because authorities can’t compare DNA profiles to catch criminals, said Do.

He went on to say he doesn’t see how a prosecutor’s office could be in charge of collecting DNA samples, analyzing them, maintaining custody of them and testifying in court.

It seems like a “conflict of interest,” Do said.

“We need to know the costs” and rationale behind it, said Spitzer.

Supervisor Lisa Bartlett also asked hard questions about costs, suggesting that a discussion on the topic might produce “substantial” cost savings.

The DA, meanwhile, defended his local database as an effective tool for catching criminals.

Within a few weeks of starting the database, prosecutors “solved a murder case” involving a discarded female body in Irvine, Rackauckas said.

The private lab the DA uses to analyze the DNA it collects charges “a very low price,” added Rackauckas, who didn’t say what the cost is.

Spitzer suggested that the DA brief all supervisors individually about the program, which Rackauckas said he plans to do.

In the ACLU case, the U.S. Ninth Circuit Court of Appeals ruled that Rackauckas violated the federal Constitution with a gang injunction he pursued in the city of Orange by restricting people’s rights without giving them a chance to dispute accusations of being in a gang.

At Tuesday’s special meeting, DA officials drew significant blowback when they said they’re likely to seek coverage from the county’s general fund to pay the bulk of the ACLU tab.

That didn’t sit well with Spitzer and Do, who suggested that county supervisors – who are being asked to sign off on using other county money to pay for the DA’s loss – weren’t consulted about the decision to appeal the original ACLU ruling against the DA, or the earmarking of the DA’s winnings in the Toyota case.

“If we’re going to be on the hook for the financial cost of it, then we ought to be able to be the ones representing the county” and deciding on course of litigation, said Do, who previously worked as a prosecutor in the DA’s office.

“I would like to have a clear understanding” of supervisors’ legal powers and limitations, Do later told Voice of OC.

Spitzer and Bartlett agreed, saying there needs to be more checks and balances when it comes to lawsuits.

If the DA’s office is making millions from suing corporations, the consequences of the DA losing a case should be known, Spitzer said.

“3.9 [million dollars] is a big number. And so the question is, where are we going to get the [money]? How are we going to absorb it?” added Spitzer.

That prompted a tit-for-tat argument between Rackauckas and Spitzer, who was the DA’s chosen successor before the DA fired him in 2010.

In response to Spitzer’s questions, Rackaukas replied that he didn’t initiate the litigation with the ACLU.

“No, but you voluntarily” sought a gang injunction in Orange without following proper protocol, Spitzer responded.

Rackauckas then asked if Spitzer was saying the DA should come to the board before filing injunctions against violent gangs.

Spitzer shot back that if supervisors had been consulted about the appeal, they might have given direction to settle the case earlier.

Rackauckas fired back: “The state of the law, the state of facts” were very much against that point of view, he said.

Spitzer then told the DA he needs to tell the board how he’s going to pay the ACLU lawsuit and what kind of agreements will be in place in the future so this doesn’t happen again.

“We can’t just wake up one day and find out that we’re stuck with a $3.9 million bill,” Spitzer said.

Supervisor Shawn Nelson, meanwhile, noted that the DA is allowed to file lawsuits on his own against corporations for unfair business practices.

The question, he said, is what parameters supervisors want to put in place so that when the DA does sue corporations, he’s not later coming to supervisors for losses.

The total tab for the ACLU case now stands at about $6 million, with $3.9 million in legal fees to the civil liberties group and about $2 million for the county’s side of the costs.

It’s a cost that was foreshadowed in the appeals court’s 2013 decision.

“The taxpayers of Orange County now get to pick up a multi-million dollar tab for the litigation that ensued from the district attorney’s bad tactical decision,” wrote Circuit Judge Richard Tallman.

DA officials plan to make their formal funding request for the ACLU lawsuit at the May 5 supervisors meeting.

You can contact Nick Gerda at ngerda@gmail.com, and follow him on Twitter: @nicholasgerda.

  • Kathleen M. Conwell-Doyle

    Oversight?? The 2012-2013 Orange County Grand Jury called for an ethics commission (which could, presumably, help deal with these sorts of issues). It was systematically shot down by the BoS, called ‘renegade’, and ‘punished’. You reap what you sow….

  • Paul Lucas

    let him request it and then deny it. Make it come form his asset forfeiture fund.