Orange County’s District Attorney controls the largest database of DNA profiles not created by legislative act in the nation. The database, created in April 2007, is largely shrouded in secrecy. But a new paper by UC Berkeley Law Professor Andrea Roth sheds considerable light on the database.
“[W]hile debate continues over statutorily authorized DNA collection, a less-scrutinized form of databasing that is more expansive than any existing DNA collection statute has emerged in California: prosecutorial DNA databasing,” Roth wrote in “Spit and Acquit,” published in the new issue of California Law Review. “For over a decade, the Orange County District Attorney (OCDA) has offered defendants accused of misdemeanors and infractions a deal: give the prosecutor’s office your DNA, and the office will offer you leniency in your criminal case. In fact, nearly every misdemeanor plea deal in Orange County is now conditioned on providing DNA.”
Roth said she and her researchers worked on the paper for about two years, from 2016 to 2017. The reason it took so long, she said, was that they did a ton of research. Roth and her team used “original field research, including courtroom observations, public record disclosures, recordings of Board of Supervisor meetings, and interviews with defendants, prosecutors, defense attorneys, judges, and legislators,” according to her paper.
Roth also said they ran into some trouble getting questions answered by the OCDA’s office. While DA personnel did speak with Roth several times and provided some information through informal requests, they largely denied her researchers’ formal public record requests.
“Before academia, I was a public defender in Washington D.C.,” Roth said. “I’ve been litigating and studying DNA for the past 20 years.”
It’s known colloquially as “Spit and Acquit,” but that’s a misnomer, as Roth points out in her paper. None of the deals offered by the DA in exchange for DNA include an actual trial acquittal. Instead, the charges are reduced or dismissed entirely. Those opting for deal also have to pay a $110 processing fee (it was $75 when Roth did her research). Assuming no one has ever waived the fee (which while technically possible, Roth never observed it), the OCDA’s office has taken in $11,250,000 in fees since the program began.
As Roth shows, the database began in April 2007, and was largely born from Proposition 69, which had been approved by voters three years prior. Language in that initiative that had largely been ignored by voters and the media included authorization for the creation of DNA databases. In March 2007, the Orange County Board of Supervisors unanimously authorized the OCDA to create its own DNA database.
As a side note, Roth noted in her paper that one of the key architects of Prop. 69 was Orange County Deputy DA Camille Hill, who died in 2016. That Hill’s name should figure so prominently in the origin of the OCDA’s database will come as no surprise to longtime readers of the Weekly. In 2008, reporter R. Scott Moxley reported that Hill had asked a veteran Sheriff’s Department forensics expert to alter her conclusion that DNA evidence had not been found on James Ochoa, a 20-year-old Buena Park man who was ultimately (and wrongfully) convicted in 2005 of robbery and carjacking. Ochoa spent 16 months behind bars before law enforcement finally found the actual culprit.
From Moxley’s 2008 story:
In a civil deposition taken last month for Ochoa’s wrongful-prosecution lawsuit, Ochoa attorney Patricio A. Marquez of Morrison & Foerster asked [forensic specialist Danielle] Wieland, “Did anyone ever exert pressure on you to change your [DNA] conclusions?”
“Yes,” Wieland replied. “Camille Hill from the DA’s office . . . She called me and asked me to change the conclusion that Mr. Ochoa was eliminated from [DNA found on] the left cuff of the shirt.”
According to the transcript, Hill told Wieland she “didn’t care” about the crime lab’s findings. “I want him [Ochoa] not excluded,” Wieland recalls Hill saying.
When asked, Hill denied any wrongdoing. “I, in no way, did anything unusual,” Hill told the Weekly. “About every week, we ask the crime lab to reconsider findings. Sometimes, they make changes.”
Of course, the OCDA’s DNA database didn’t exist yet when Ochoa got railroaded. But it probably wouldn’t have mattered if it had.
That’s because what makes the database different from others created by state legislatures is the origin of the samples that go into it. Instead of filling it with people convicted of felonies, for instance, it has samples from people who were charged (but in many cases not convicted) of non-violent misdemeanors: petty theft, first time DUI, drug charges, driving without a license, vandalism, and so forth. “It targets people deemed to pose no public safety risk,” Roth wrote in her paper.
And it has a lot of profiles–176,000, according to an OC Register story published in April (Roth concluded her research nearly two years ago so her paper puts the database at 150,000 profiles). This is possible because the OCDA’s office charges 60,000 to 80,000 people a year with misdemeanors. According to Roth’s research, most of them accept the DA’s “Spit and Acquit” deal when it’s offered.
In fact, Roth even talked to one attorney (who is unnamed in the paper) who alleged that many of those misdemeanor prosecutions were simply to feed the database. “As one defense attorney put it to me, ‘I do not think it’s an exaggeration to say that a main point of [OCDA’s] misdemeanor practice is to populate their database,’” Roth wrote. “The more misdemeanor court is used as a back-door means of enacting policies like surveillance programs rather than as a means of adjudicating violations of law worthy of prosecution and punishment, the less misdemeanor court makes sense to begin with.”
Whether defendants are truly giving consent when agreeing to the DNA deal is another potential issue. In her observations, Roth never really heard DA personnel, attorneys or judges really telling defendants the long-term risks of getting included in a database of this magnitude.
Incredibly, Roth also found that the database has an astonishingly low success (or “hit”) rate: just 766 leads in the program’s life (the April 2019 Register story lists 725 leads, which is somehow even lower, even though there were now 26,000 more profiles in the database than when Roth did her research). By contrast, Roth points out that a similar DNA database in Arkansas (though one that built of profiles of actual convicted people) has a little over 166,494 profiles and has so far turned up 5,262 hits.
In any case, those are just hits–leads, not convictions. As for those, Roth’s research turned up just five.
That’s right: five, in more than a decade of the database’s use.
“In response to both informal requests and formal public records requests for information showing how many of these hits led to prosecution of a crime, OCDA has thus far declined to answer other than referring me to five cases that have been publicly touted by OCDA as Spit and Acquit success stories,” Roth wrote. She later determined that, in fact, just three of these were made possible only with the use of the DA’s database.
As Roth points out in her paper, there are a few possible explanations as to why Rackauckas wanted the database. One is simply bragging rights–Look at me! I’m the DA in charge of the biggest DNA database in the country!
Another explanation stems from a theory on where crime comes from. “He also relies on the idea that crime is local, so (the argument goes) if we want to solve OC crimes, we should get a lot of OC people in the database,” Roth told me.
Roth touched on this in her paper. “A former prosecutor suggested that former District Attorney Tony Rackauckas’s beliefs inspired the database,” she writes in a footnote in her paper. “Mr. Rackauckas believed that locals were most likely to commit violent crimes, and that perpetrators of violent crimes often had a misdemeanor arrest record but nothing else.”
In any case, another unique aspect of the OCDA’s database that Roth wrote about is that it can’t function without private industry. Indeed, Roth wrote in her paper that the OCDA “must partner with private industry to maintain its database.” This is because the OCDA’s office also uses devices called Rapid Hit DNA Machines, which requires splitting DNA samples, but doing so makes the samples ineligible for inclusion in CODIS, the nationwide Combined DNA Index System. As it happens, all OCDA DNA samples go to Bode Cellmark Forensics in Virginia, where they’re processed into profiles and placed in the database.
Roth also tried to discern the demographics of who exactly is in the database, but ran into a wall. Though she did learn that the database is about 70 percent male, the OCDA’s office wouldn’t give her racial data. She also wrote that she initially thought that the emphasis on petty crimes like dog leash laws would skew the sample results towards people of privilege, but then she learned that many of the misdemeanors being prosecuted are driving offenses, and that tends to grab minorities.
More irony: in her paper Roth mentions then-Supervisor Todd Spitzer as a big critic of the program (and the whole notion of the DA’s involvement in crime labs) back in 2015. But her paper was published before Spitzer won the 2018 DA’s election. When I told Roth that Spitzer had since agreed to give up the DA’s crime labs but was still holding onto the DNA database, she laughed.
Click here to download Roth’s paper.
Anthony Pignataro has been a journalist since 1996. He spent a dozen years as Editor of MauiTime, the last alt weekly in Hawaii. He also wrote three trashy novels about Maui, which were published by Event Horizon Press. But he got his start at OC Weekly, and returned to the paper in 2019 as a Staff Writer.