Showdown over DNA Lab Reflects National Debate
By Jason Felch and Maura Dolan, Los Angeles Times
December 14, 2008
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.
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."
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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-yearold 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.
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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.
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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.
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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."
Felch and Dolan are Times staff writers.
jason.felch@latimes.com
maura.dolan@latimes.com
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