A state appeals court has reignited a retired professor’s taxpayer lawsuit against Orange County District Attorney Todd Spitzer – and his office’s controversial program collecting people’s DNA in exchange for dropping misdemeanor charges like petty theft.
It comes after UCI criminology professor emeritus William Thompson first filed his challenge in 2021, calling the DNA program an unconstitutional gateway to erroneous crime links and even the malicious planting of evidence to secure a conviction.
But in June of that year, OC Superior Court Judge William D. Claster originally dismissed Thompson’s lawsuit on technical grounds, arguing that the waivers people signed to give up their DNA would undermine any legal challenge to the program, which was created in 2007.
But a unanimous April 11 appeals court opinion, written by Fourth Appellate District Associate Justice Eileen Moore, argues the lower court erred and that Thompson has sufficiently alleged Spitzer’s DNA program to be unconstitutional.
“The judgment is reversed. On remand, we direct the trial court to enter an order overruling the demurrer as to the claims for violations of the right to privacy, the right to counsel, and due process, and sustaining it as to the unconstitutional conditions and ultra vires claims,” reads Moore’s opinion.
Moore also raised concerns over how the DNA information might be exploited.
“Due to its complexity, a significant number of alleged misdemeanants will likely be unaware of the information their DNA may reveal and how that information may be exploited,” she wrote.
“And, as technology advances, DNA samples and profiles will reveal far more extensive information than we currently know.”
Requests for comment from Thompson, a criminology expert, and his attorney went unreturned Thursday morning.
In a written statement, a spokesperson for Spitzer’s office said the appellate court ruling “did not address the merits of the program; rather it allows plaintiffs to have another opportunity to convince a judge that they have actual facts to prove their baseless claims.”
“It is irrefutable that DNA collection has enabled us to solve unsolved crimes from the past and has been proven to be the greatest deterrent in preventing someone who has submitted their DNA profile from committing new crimes,” wrote Spitzer’s spokesperson, Kimberly Edds in a Thursday text message.
“The OCDA DNA program makes our community safer,” said Edds.
Commonly known as “Spit and Acquit,” the District Attorney’s office has collected DNA related to misdemeanor offenses since 2007.
As of 2018, the database contained more than 180,000 DNA profiles.
It’s a controversial program for misdemeanor charges, which started under former DA Tony Rackauckas, who famously defended a controversial jailhouse informant program under his administration – what is known as Orange County’s snitch scandal.
At first, the DNA program was criticized by Rackauckas’ protege, Spitzer.
That is until Spitzer became the OC District Attorney, writing in a 2021 OC Register op-ed that samples collected from misdemeanor offenders helped connect them to more serious crimes.
He also argued that participation in the program is “completely voluntary” and “in no way coercive” as the DNA samples were willingly given up by misdemeanants who signed waivers as part of their plea agreements.
Thompson, on the other hand, argues that people only did so under the threat of criminal charges.
“These far-ranging privacy implications associated with DNA differentiate a DNA waiver from other constitutional rights criminal defendants typically waive when entering plea deals, such as the right to a jury trial, the right to counsel, or the right to confront witnesses,” Justice Moore wrote in the appellate court opinion.
It adds: “When criminal defendants agree to waive any of these trial or trial-related rights, it is reasonably clear what they are surrendering. DNA waivers are not so straightforward. A vaguely worded DNA waiver can potentially conceal from alleged misdemeanants the persons having access to their DNA and/or the different purposes for which their DNA might be used.”
Because alleged offenders will typically be unaware of all the ways their DNA may be “exploited for information, now and in the future,” Moore wrote, adding it’s “imperative that a DNA waiver sufficiently apprises them of the rights they will be giving up.”
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