Rackauckas Likely to Face Yet Another Investigation

OC District Attorney Tony Rackauckas, whose office is already facing federal, state, and county investigations into alleged prosecutorial misconduct, will likely face yet another probe this year.

A majority of the county Board of Supervisors said this week that when they appoint a new director of the Office of Independent Review (OIR), the county’s law enforcement watchdog, they want that person to look into the DA’s controversial DNA collection program, known as “spit and acquit.”

Standard practice in California is for local law enforcement to collect DNA from people arrested on suspicion of felonies and crime scenes. The samples from arrestees then get loaded into a statewide database that's available to investigators.

But in Orange County, the District Attorney has its own DNA database in which it collects and analyzes DNA samples from people arrested for lower-level crimes like petty theft and drug possession. In exchange for paying a $75 fee and letting technicians swab their mouth for a DNA sample, these suspects have the charges against them dropped.

The DA program, which was started in 2007, is unique in California and has collected over 140,000 DNA samples.

DA officials say it’s been instrumental in solving more serious crimes that they couldn’t have solved otherwise. The database has provided over 725 “investigative leads” to local law enforcement, according to Rackauckas’ office.

But the program has also sparked concerns about conflicts of interest, given that the DA’s office is collecting and analyzing the evidence it presents in court.

The National Academy of Sciences says forensic science investigations should be independent of prosecution efforts.

In defending his agency's DNA program, Rackauckas has said there’s an outside check when his analysts find a DNA match, with confirmations being analyzed by the Sheriff’s Department lab as well to double-check the work.

Yet critics, such as Supervisor Todd Spitzer, point to a specific case in which the DA’s office was accused of trying to manipulate DNA evidence to support its case against an innocent person.

In that case, Buena Park resident James Ochoa was being prosecuted for a 2005 carjacking, but the Sheriff’s Department crime lab found that DNA from the crime scene didn’t match Ochoa’s. Danielle Wieland, the forensic scientist in the case, later testified under oath that the head of the DA’s DNA unit tried to pressure her to change her findings.

“[Deputy DA Camille Hill] called me and asked me to change the conclusion that Mr. Ochoa was eliminated” from being the source of the DNA found on a shirt at the crime scene, Wieland testified in her 2008 deposition.

Ochoa was later found to be wrongfully convicted, after spending 16 months behind bars.

(Click here to read the deposition.  The testimony about alleged pressuring by the DA’s office begins on page 68.)

The questions raised by this case will likely be explored by the OIR after a new director is hired. The position has been vacant since last March, when the former director, Steve Connolly, resigned. Supervisors appear close to choosing a new head, with an item appearing on this week’s closed-session agenda and Spitzer indicating a vote was near.

And most supervisors said Tuesday they want the DNA program to be one of the first orders of business for the next director.

“Should a prosecutorial agency collect its own evidence that it’s going to admit, itself, into the record, in its own [case]?” asked Spitzer, a political foe of Rackauckas’ who is widely expected to run for DA in 2018.

A review of the DNA program was also supported by supervisors Andrew Do and Lisa Bartlett.

Do has previously said it seems like a conflict of interest for a prosecutor’s office to be in charge of collecting and analyzing DNA samples while also testifying about them in court.

The DA’s office declined to comment for this story.

Rackauckas’ office has also been under fire in recent years over allegations that his prosecutors, along with sheriff’s deputies, ran an illegal informants network in county jails, systematically withheld favorable evidence from defendants in order to win convictions, and lied to a judge who was investigating it.

Rackauckas has acknowledged problems with evidence disclosure and informants, but maintains that there was no intentional wrongdoing by his staff.

But the allegations of deliberate illegal behavior were bolstered in December, when a state appellate court panel unanimously agreed that Rackauckas’ office violated the constitutional rights of defendants and “intentionally or negligently” ignored rights violations committed by the Sheriff’s Department.

The appellate justices upheld a Superior Court ruling that barred Rackuackas’ office from continuing to prosecute the sentencing phase in the trial of Scott Evans Dekraai, who in 2011 gunned down his ex-wife and seven others in a Seal Beach beauty salon.

Rackauckas’ office is now facing at least three separate investigations into the informants scandal, led by the California Attorney General, Orange County Grand Jury, and U.S. Department of Justice.

The DA’s office issued a statement last month saying it’s confident the federal investigation will conclude that it “did not engage in systematic or intentional violation of civil rights of any inmate or innocent person who was wrongfully convicted.”

Nick Gerda covers county government and Santa Ana for Voice of OC. You can contact him at ngerda@voiceofoc.org.