Fate of DA Tony Rackauckas’ DNA program on the line

Part of the legacy of Tony Rackauckas’ 20-year run as Orange County District Attorney could be found in the fibers of a cotton swab.

By convincing people suspected of low-level crimes to swab their mouths and turn their genetic history over to his office, Rackauckas built something unique in American jurisprudence — his own collection of DNA samples.

This week, that independent DNA collection officially reached purgatory.

Rackauckas, who lost his re-election bid and is due to leave office early next year, pulled his request to the Board of Supervisors for another year’s DNA funding. And the incoming District Attorney — county Supervisor Todd Spitzer — isn’t sure if he’ll push it forward, though he hasn’t ruled it out.

The one thing that’s certain is that if Rackauckas’ DNA collection goes away, it will please civil libertarians and frustrate others who believe it has helped solve some high profile crimes.

In the 11 years that he’s run his own DNA testing program — which is independent of an active DNA testing program run by the Orange County Crime Lab — Rackauckas amassed a database of 176,000 unique genetic samples.

He did this by casting a wide net. While other DNA testing programs (including the one run by the county) get genetic information mostly from suspected felons, Rackauckas has been collecting evidence from little fish — people accused of misdemeanors, such as petty theft, non-felony drunk driving and drug possession.

What’s more, the deal he’s offered sounded good. Non-violent suspects, sometimes facing a night or more in jail, could go home in exchange for paying a $75 processing fee and giving a genetic sample. The offer is so common that local defense attorneys refer to it as “spit and acquit.”

Those samples have been collected by local officials and processed by an outside contractor and stored for the exclusive use of Rackauckas’ office. He alone controls the use and disclosure of that evidence. No other district attorney in the country has a similar pool of DNA under its control.

Rackauckas’ reasoning was simple: Today’s misdemeanant is tomorrow’s felon. And it’s possible the collection has helped solve some crimes. Published reports estimate that Rackauckas’ database provided more than 725 investigative leads over the years, including playing a part in the recent capture of the Golden State Killer.

But critics have questioned — and continue to question — the ethics of any prosecutor controlling his or her own collection of genetic evidence.

One of those complaining the loudest has been Spitzer.

“I have some serious concerns about the DNA initiative,” Spitzer said in a recent interview.

This week, after Rackauckas chose not to ask the board to again renew the $1 million-a-year contract that pays for the DNA lab (a Virginia company, Bode Cellmark Forensics), Spitzer said he won’t kill the program for political reasons, and will study the issue.

But Spitzer also said he’ll need to be convinced the program should be kept alive.

“I plan to bring in experts to advise me. I am not convinced the D.A. needs its own crime lab…

“I’m incredibly concerned that they are misusing the DNA lab to get convictions.”

Rackauckas’ office did not respond to multiple requests for information about the DNA database. In the past, he has said there’s been zero evidence over the years of his office intentionally misusing DNA evidence.

But if Spitzer kills the DNA program, some outside observers will be thrilled.

Jennifer Mnookin, dean of UCLA School of Law and an expert in evidence, has been an outspoken critic of Rackauckas’ program. She says lawmakers, not local prosecutors, should decide the level of criminal who turns over their DNA.

“There’s no law passed that gives anybody the authority to collect DNA for misdemeanor arrests in California,” Mnookin said. “That was an Orange County invention.”

She also was concerned that independent DNA collections can be abused by police or prosecutors. Police might “target” some people in their community, she said, arresting them for low-level crimes with the specific goal of getting their DNA.

“There’s a danger of being so aggressive that you forget about justice,” Mnookin said.

But conflicts of interest aren’t unique to Rackauckas or his DNA collection.

Most crime labs, including those in Southern California, are run by law enforcement departments, which by definition have a vested interest in convicting people. And many DNA experts — including the National Academy of Sciences — question having law enforcement being so closely aligned with crime labs.

But they also raise questions about a district attorney’s office having its own DNA program. In a groundbreaking 2009 report, the National Academy of Sciences called for crime labs to be independent of all law enforcement organizations as a way of preserving the integrity of forensic evidence.

Rackauckas initially started his database, in 2007, because he was frustrated with delays in the county’s DNA collection system.

For instance, in April 2006, a genetic swab was taken from a man suspected of three auto thefts in Santa Ana and submitted to the county crime lab. But that material wasn’t processed for 13 months, when it turned out that the same DNA was linked to a separate carjacking and a kidnapping.

Besides collecting his own DNA, Rackauckas hired his own outside private lab, saying he didn’t trust the county crime lab, which at the time was run solely by the sheriff’s department. (Today, the county lab is run collectively by the Sheriff’s Dept., the District Attorney and the county’s Chief Executive.)

But many critics didn’t trust Rackauckas, either.

Consider the case of James Ochoa, 20, of Buena Park. In late 2005, he was convicted of carjacking. But a year later he was released from prison after DNA left on a ball cap, shirt and BB gun linked the crime to another man.

But before that match was made — even before Ochoa agreed to a plea deal in the case — Orange County DNA analyst Danielle Wieland determined that the DNA did not belong to Ochoa.

However, in a deposition she gave in 2008, Wieland testified that now deceased Deputy District Attorney Camille Hill – once Rackauckas’ in-house DNA guru — tried to change her mind.

Wieland quoted Hill as saying, “I want him (Ochoa) not excluded.”

But Rackauckas’ office continued with the case, based on evidence from a police line-up. Although innocent, Ochoa accepted a plea bargain offered by Judge Robert Fitzgerald, accepting a two-year prison term rather than risk a longer sentence if convicted.

Ochoa was released after Wieland linked the DNA with a Los Angeles man, who confessed to the carjacking.

Hill, a former crime lab worker from Houston, said at the time that she had received incomplete documents that made it appear there was a possibility that Ochoa was linked to the DNA. She also said she would never pressure any analyst to reach a conclusion not supported by the evidence.  

She died in May 2016 after earning a reputation for trying to exonerate the innocent through forensics.

Spitzer said the Ochoa case continues to bother him, but he’s willing to look at the future of Rackauckas’ DNA program with an open mind.

“I might agree it has to stay the same,” Spitzer said. “I have no idea.”