Prosecutors Move To Seize Control of Crime Lab

The Orange County Prosecutor’s Office move to wrest con­trol of the crime lab away from the sheriff’s depart­ment. While out­siders some­times point out that hav­ing a crime lab under the con­trol of a police agency can lead to lab staff being pres­sured to bias their opin­ions, or per­haps even those ana­lysts who seem to be nat­u­rally more biased being pro­moted pref­er­en­tially — the sit­u­a­tion could be even worse when it is the prosecutor’s office who con­trols the foren­sic laboratory.

Remember in a crim­i­nal trial, the job of the two lawyers isn’t to find the truth of the sit­u­a­tion — it is to argue their point and con­vince the jury their the­ory is cor­rect. Imagine if an agency who’s only job is to con­vince and con­vict is in con­trol of the foren­sic facil­i­ties for that county. That lab­o­ra­tory would be wielded like a weapon to con­vince and con­vict juries, not help inves­ti­ga­tors find the crim­i­nals involved in the crimes.

Original post­ing here.

From the Los Angeles Times
DNA: Genes as evi­dence
Showdown over DNA lab reflects national debate
Orange County’s D.A. tried to take over the sheriff’s facil­ity. Many experts say any law enforce­ment con­trol of such oper­a­tions makes the sci­ence vul­ner­a­ble to undue influ­ence and lax over­sight.
By Jason Felch and Maura Dolan

December 14, 2008

In June, Orange County Dist. Atty. Tony Rackauckas made a bold grab for a crown jewel of local law enforce­ment: the DNA unit of the sheriff’s crime lab.

With the lab’s direc­tor out of town and the sher­iff recently deposed by cor­rup­tion charges, Rackauckas sub­mit­ted a brief agenda item to county super­vi­sors two busi­ness days before their reg­u­lar meeting.

“Our aim is to make sig­nif­i­cant changes in the way foren­sic DNA analy­sis is con­ducted,” Rackauckas wrote. The D.A.‘s office is “the only orga­ni­za­tion capa­ble of har­ness­ing the vast poten­tial of foren­sic DNA technology.”

The move capped a three-year tug of war for con­trol of DNA analy­sis in a his­tor­i­cally con­ser­v­a­tive county where putting crim­i­nals behind bars can bring sub­stan­tial polit­i­cal rewards.

“I have never expe­ri­enced any­thing like it in more than 30 years of law enforce­ment,” recalled Sheriff Sandra Hutchens, who took over the depart­ment in the midst of the bat­tle. “I couldn’t get my brain around it, and no one I’ve spo­ken with could either.”

To end the bick­er­ing, one mem­ber of the Board of Supervisors pro­posed putting the county’s entire crime lab in the hands of an inde­pen­dent agency headed by a sci­en­tist. But, in the end, the board split con­trol among the polit­i­cal play­ers: the D.A., the sher­iff and the county chief executive.

The power strug­gle in Orange County is a sign of an inten­si­fy­ing national debate over who should con­trol foren­sic sci­ence — a ques­tion that has taken on new impor­tance with the explo­sion of genetic evidence.

More by hap­pen­stance than design, crime labs most often are run by law enforce­ment agen­cies: police and sher­iffs or, in three California coun­ties, pros­e­cu­tors. Many experts say that arrange­ment has left the sci­ence vul­ner­a­ble to undue influ­ence and lax over­sight, lead­ing in some cases to wrong­ful convictions.

“Many of the foren­sic scan­dals — cases of out­right fraud or undue pres­sure — are pre­cisely the result of this insti­tu­tional cozi­ness,” said UCLA law school pro­fes­sor Jennifer Mnookin, who calls the arrange­ment “incred­i­bly dangerous.”

For these rea­sons, a land­mark report by the National Academy of Sciences, a research arm of the fed­eral gov­ern­ment, is expected to rec­om­mend next year that con­trol of crime labs be given to inde­pen­dent sci­en­tists, accord­ing to three peo­ple who have read the con­fi­den­tial draft report.

Rackauckas has pushed hard in the other direc­tion. He dis­missed con­cerns about poten­tial con­flicts of inter­est, say­ing pros­e­cu­tors are uniquely qual­i­fied to ensure that evi­dence is han­dled prop­erly and that pri­or­i­ties are set to pre­vent lab backlogs.

In the years lead­ing to his attempted takeover of the sheriff’s DNA unit, the dis­trict attor­ney spent hun­dreds of thou­sands of tax­payer dol­lars in a bid to prove his point. He essen­tially built his own sys­tem of DNA col­lec­tion and analy­sis, in some cases dupli­cat­ing what was being done by the sheriff’s lab.

His efforts fell largely out­side the reg­u­la­tions that gov­ern state and national DNA sys­tems, which were designed to pre­vent abuses and pro­tect the pri­vacy of inno­cent people.

Rackauckas and his admir­ers point to his suc­cesses, par­tic­u­larly in using DNA to solve prop­erty crimes such as auto theft and home bur­glar­ies. The bane of urban areas, these offenses typ­i­cally result in charges 10% of the time. In a pilot project using DNA evi­dence in selected cases, he was able to dou­ble that rate, accord­ing to sta­tis­tics he sub­mit­ted to the board.

“Mr. Rackauckas is the most inno­v­a­tive and aggres­sive of D.A.s in the DNA area,” said Kern County Dist. Atty. Ed Jagels, who runs his county’s crime lab. “Among D.A.s, I think there’s some respect for what Mr. Rackauckas has done, and a cer­tain mea­sure of envy.”

Wrongful con­vic­tion

Some of the deep­est con­cerns about the Orange County D.A.‘s influ­ence over foren­sic sci­ence come from ana­lysts in the sheriff’s DNA unit.

In inter­views, sev­eral said they were shaken by a 2005 car­jack­ing case in Buena Park.

Evidence against 20-year-old James Ochoa was con­flict­ing: Two vic­tims iden­ti­fied him as the cul­prit, based on a pho­to­graph police showed them. But half a dozen fam­ily mem­bers said Ochoa was home eat­ing at the time of the crime.

Buena Park inves­ti­ga­tors hoped DNA from a base­ball cap and shirt left in the stolen car would nail the case.

“If it doesn’t match … we’re not pro­ceed­ing,” the detec­tive told DNA ana­lyst Danielle Weiland, accord­ing to Weiland’s depo­si­tion last January in a law­suit by Ochoa.

Both the cap and shirt con­tained a mix­ture of DNA from mul­ti­ple sources. Complex cases like this can be sub­ject to dif­fer­ent inter­pre­ta­tions, experts say, requir­ing an expe­ri­enced and impar­tial eye to deci­pher accurately.

Weiland, who had been a DNA exam­iner since 2001, found a dis­tinct DNA pro­file from an uniden­ti­fied per­son, but it did not belong to Ochoa. Convinced that the pro­file belonged to the per­pe­tra­tor, she sub­mit­ted it for com­par­i­son to those of known offend­ers in the national data­base sys­tem, hop­ing for a “match.”

Meanwhile, her lab report ruled Ochoa out after deter­min­ing that three of his genetic mark­ers were not present in the mix­ture — a find­ing con­firmed by two other lab work­ers. Weiland then got a call from Camille Hill, a mem­ber of Rackauckas’ DNA unit.

Hill “asked me to change the con­clu­sion that Mr. Ochoa was excluded,” Weiland said in the deposition.

In a meet­ing at the crime lab later that day, Hill sug­gested that Ochoa’s miss­ing genetic mark­ers might not have been detected, Weiland said. Generally speak­ing, a match means all mark­ers in a genetic pro­file are present, but Hill was argu­ing that mark­ers might have been miss­ing because of degra­da­tion of the sam­ple or extremely low quan­ti­ties of DNA.

In an inter­view with The Times, Hill said she was not apply­ing pres­sure, just ask­ing for an expla­na­tion. Despite the three miss­ing mark­ers, the mix­ture con­tained a sub­stan­tial num­ber of mark­ers that did match Ochoa’s pro­file. Hill said that left open the pos­si­bil­ity that Ochoa’s DNA was present.

For 25 min­utes, the two sides had a “hos­tile” exchange about the evi­dence, Weiland tes­ti­fied. In the end, Hill accepted that the lab would not change its conclusion.

Prosecutors decided to go to trial any­way. After both wit­nesses iden­ti­fied him in court on the third day of tes­ti­mony, Ochoa accepted a plea deal, over the objec­tion of his attor­ney. He was sen­tenced to two years.

Eight months later, the genetic pro­file that Weiland had sub­mit­ted to the national data­base was matched to a con­victed offender in California. Jaymes McCollum bore a pass­ing resem­blance to Ochoa and had numer­ous car­jack­ings on his record. When ques­tioned, he con­fessed to the crime.

Ochoa was released from Centinela State Prison in the Imperial Valley, where he had been knifed while serv­ing his sen­tence. He received a $550,000 set­tle­ment for his wrong­ful conviction.

Powerful tool

The power of DNA lies in its abil­ity not just to solve crimes but also to trans­form polit­i­cal careers.

Former Orange County Sheriff Michael S. Corona built his rep­u­ta­tion as “America’s Sheriff” thanks in large part to his lab’s use of DNA to solve the 2002 mur­der of 5-year-old Samantha Runnion.

But by 2005, the year Ochoa was arrested, Carona had been weak­ened by a grow­ing cor­rup­tion scan­dal, and Rackauckas had moved to take a greater role in the county’s DNA analysis.

Flush with money from a voter-approved reserve fund for law enforce­ment, the top pros­e­cu­tor sought to use DNA to solve some of the 40,000 prop­erty crimes com­mit­ted in the county annu­ally. A sim­i­lar approach in Britain was touted as a way to catch crim­i­nals early in their careers before they could progress to more seri­ous crimes.

To increase effi­ciency, Rackauckas offered to have his pros­e­cu­tors pri­or­i­tize crime scene evi­dence before it was sent to the DNA lab for test­ing. Carona balked, Rackauckas said. The sher­iff also wanted to tar­get prop­erty crimes using DNA but sought to do so with­out invit­ing the D.A. into the lab.

Many saw the clash as a sign of DNA’s grow­ing polit­i­cal cachet.

“DNA has changed law enforce­ment,” said Dean Gialamis, direc­tor of the Orange County Sheriff’s Department crime lab. “It’s increased so much there’s the poten­tial to pre­vent crimes in the future, not just solve crimes. There’s a desire not just to be a part of it but to con­trol it.”

Frustrated, Rackauckas decided to cre­ate his own DNA test­ing sys­tem, one that the sheriff’s lab would play no part in.

Parallel sys­tem

Rackauckas hired a pri­vate DNA lab in Northern California to ana­lyze what he con­sid­ered the most promis­ing evi­dence in prop­erty crime cases.

But the plan ran into a prob­lem: Private labs are not allowed to upload DNA pro­files into the national data­base sys­tem for com­par­i­son to the pro­files of known felons.

The Orange County’s sheriff’s lab offered to upload the pro­files for free, but Rackauckas chose to work around the sher­iff, using $500,000 approved by the board.

“It wasn’t their pro­gram and I didn’t want to give them con­trol over it,” Rackauckas said in a recent interview.

That’s not what he told Jagels, when he turned to the Kern County D.A. for help. “He indi­cated the O.C. lab was refus­ing to review and upload results for him,” Jagels said. “My sus­pi­cion is that pol­i­tics may have played some part in the problem.”

Rackauckas said in an inter­view that he didn’t inten­tion­ally mis­rep­re­sent the issue.

Jagels said he was happy to help Rackauckas. At the time, Kern County had a back­log of DNA cases await­ing analy­sis. Rackauckas pro­posed pay­ing the pri­vate lab to ana­lyze Kern County’s cases if Jagels’ lab would upload Orange County crime scene pro­files into the national database.

The agree­ment assumed that tax­pay­ers in both coun­ties were get­ting their money’s worth, but Jagels con­firmed there are no records to guar­an­tee it.

“I’m sure we could cre­ate it if we needed to,” he said.

Recently, the arrange­ment changed so Orange County is now directly pay­ing Kern County for the work it does.

Though highly unusual, Rackauckas’ approach does not vio­late any of the rules gov­ern­ing use of the national data­base sys­tem, state offi­cials said.

One step further

In January 2007, Rackauckas took his aggres­sive DNA pro­gram a step fur­ther. In addi­tion to look­ing for matches in the national data­base, he decided to build his own, using $875,000 approved by the county Board of Supervisors.

“Most crime that hap­pens is local,” Rackauckas said in an inter­view. “And it’s a rel­a­tively small group of peo­ple com­mit­ting a large per­cent­age of the crime. So a local data­base makes sense.”

Creating one would allow the D.A. to avoid fed­eral and state rules that limit who can be included and how a data­base can be used. Most DNA data­bases include only those con­victed of a felony and, increas­ingly, those arrested on sus­pi­cion of a felony.

But in 2004, California vot­ers approved a bal­lot ini­tia­tive, Proposition 69, that exempted local data­bases from these lim­i­ta­tions. Rackauckas’ deputy, Hill, was one of four prin­ci­pal authors of the measure.

For the last year, the D.A.‘s office has asked for DNA sam­ples from cer­tain peo­ple who plead guilty to mis­de­meanors such as petty theft or tres­pass­ing. They can refuse, Hill said, but they’ll get a less favor­able deal in return.

The same is being done with gang mem­bers when they are served with a civil injunction.

“We ask them if they’ll give us a DNA sam­ple, and they pretty much always say yes,” Rackauckas said with a chuckle. “Once they know we have their DNA sam­ple on record, they might have a greater ten­dency to behave.”

So far, 4,000 peo­ple have given DNA sam­ples and signed a con­sent form. The D.A. expects to begin search­ing the data­base for matches to crime scene evi­dence in the spring.

Similar DNA data­bases are main­tained by some police agen­cies else­where, includ­ing in New York and Florida. Because they oper­ate out­side the state and fed­eral guide­lines, crit­ics call them “rogue databases.”

Rackauckas’, how­ever, is the only one known to exist out­side an accred­ited crime lab.

His staffers say they are vol­un­tar­ily build­ing in many pri­vacy and qual­ity con­trol safe­guards required by crime labs, in part to pro­tect the data­base from legal challenges.

Out in the open

Having notched some suc­cesses and built his own genetic data­base, Rackauckas grew bolder.

First, he asked the Board of Supervisors to approve con­struc­tion of a $4.5-million DNA lab that would fall entirely under his con­trol and speed up DNA analy­sis on prop­erty crimes.

The sheriff’s lab, still in tur­moil after Carona’s indict­ment on cor­rup­tion charges and res­ig­na­tion ear­lier this year, coun­tered that it could expand the exist­ing lab’s capac­ity for $3 mil­lion less.

By this time the fight between the two depart­ments was out in the open, with charges of incom­pe­tence and dis­hon­esty being exchanged in the press.

In early June, the week a new sher­iff was expected to be named, Rackauckas raised the stakes yet again with his abrupt pro­posal to take over the sheriff’s DNA unit.

While the mat­ter was under review, board Chairman John Moorlach sug­gested that the entire crime lab be taken out of the hands of elected offi­cials and put under a new inde­pen­dent agency. “We want to end the ran­cor and the turf bat­tles,” said Mario Mainero, Moorlach’s chief of staff. “The sci­ence sure seemed to be caught up in all the politics.”

Instead, in October, the board cre­ated a joint author­ity com­posed of the new sher­iff, the county chief exec­u­tive and Rackauckas to run what had been the sheriff’s crime lab, includ­ing over­see­ing sci­en­tific policy.

In approv­ing the set-up, the super­vi­sors ignored the advice of James Ochoa, who, in a let­ter from his new home in Texas, urged them to keep foren­sic sci­ence out of the hands of law enforce­ment entirely.

“If you allow this pro­posal to go through,” he warned, “you can expect future injus­tices like what hap­pened to me.”