Pubdate: Mon, 5 Oct 2009
Source: Los Angeles Times (CA)
Copyright: 2009 Los Angeles Times
Page: A3, lead article on inside front page
Contact: http://drugsense.org/url/bc7El3Yo
Website: http://www.latimes.com/
Details: http://www.mapinc.org/media/248
Author: Tami Abdollah
Cited: Orange County District Attorney http://orangecountyda.com/

D.A.'S DNA DATABASE GROWING IN O.C.

Profiles Quadrupled in the Last Nine Months to 15,000. Half Are From 
Nonviolent Offenders Who Accepted a Deal.

The Orange County district attorney's office has nearly quadrupled 
its DNA database over the last nine months, to about 15,000 
individual profiles, and officials say they hope to start using it to 
identify criminal suspects by early next year.

The agency's effort to build a database exempt from the rules that 
govern state and national DNA repositories has made Orange County 
unique among local governments in California. Much of the rapid 
growth has come from cases in which prosecutors drop charges against 
low-level offenders who agree to submit DNA samples.

Critics have questioned whether it's appropriate to gather DNA from 
people not convicted of a crime.

One such defendant is Charlie Wolcott. Early last year, Wolcott 
nervously walked into Orange County's Central Justice Center in Santa 
Ana and stepped into Department 46. The software engineer and Gulf 
War veteran had never appeared in court before or been cited for 
anything more than a speeding ticket. He had been summoned as a 
result of a citation he received months earlier for allegedly 
trespassing on railroad property near the Tustin Metrolink station.

Wolcott says he was innocent because the no-trespassing sign was 
yards away from where he was stopped by a plainclothes deputy as he 
walked along a shortcut away from the tracks. But as Judge James H. 
Poole described court procedures to the roomful of people awaiting 
their hearings, Wolcott grew increasingly worried about the 
possibility of being convicted.

"I'm freaking out," he said, recalling the scene.

Before he was called in front of the judge, Wolcott and another 
defendant, who was facing a felony charge of personal-use possession 
of marijuana, were called into a soundproof room in the back of the 
court. There, Deputy Dist. Atty. Nicholas Zovko made them an offer.

"He takes me and one other guy to the back of the courtroom, and says 
basically, 'The district attorney's office would like to make a deal 
with you,'" Wolcott said. " 'If you give a DNA sample, we will drop 
all charges.'"

About half of the samples in the database are from people who have 
accepted that offer, said Susan Kang Schroeder, a spokeswoman for the 
district attorney's office. People charged with nonviolent 
misdemeanors such as petty theft or trespassing are allowed to give 
DNA and have their cases dropped. In January, the option was also 
extended to those charged with certain personal-use drug possession felonies.

Wolcott's case is "a perfect example of a minor thing, where we gave 
him an opportunity to dismiss the case without having any further 
consequences," Shroeder said.

Wolcott, 40, says he regrets his decision. But "I felt I had no 
choice to get out of this unscathed unless I gave a DNA sample," he 
said. "It just seems like I was roped into the court system just to 
get my DNA."

Schroeder, however, said Wolcott "really got the better deal."

"He was explained everything as per the instructions of our office," 
she said. "Our office isn't interested in taking anything forcibly 
from anyone. It's completely voluntary."

The program has won support from some defense attorneys and others.

"People that are coming into the system for the very first time don't 
get a case filed against them," said Carol Lavacot, a defense 
attorney based in Irvine. "It's a second chance."

Judge Poole has had cases dismissed in his courtroom for a DNA 
sample. He said he wasn't aware that there was a formal program until 
recently, but had no objections to the district attorney trying to 
help clear up a high-volume calendar, save taxpayer money and give 
people the chance to avoid criminal records.

"It's not an ideal situation, but the program can have some benefits 
that you just can't ignore," he said.

But the program doesn't sit well with others, who express concern 
over who gets offered the deal, how the data will be managed and what 
it will be used for.

The district attorney's database is "highly unusual" because it is 
not managed by an accredited crime lab, said Beth Greene, president 
of the American Society of Crime Lab Directors and chief of forensic 
services at the Florida Department of Law Enforcement's Pensacola lab.

"This whole concept of voluntary sample-building and getting people 
to plead for less is not the way state databases are run," she said. 
"There are no special arrangements made. You get simple samples 
collected per the law. In our opinion that safeguards the samples in 
the database."

Some legal observers question whether people would be targeted on 
low-level technical crimes in an effort to expand the database.

"That seems backward," said UCLA Law School professor Jennifer 
Mnookin. "I'd like to see what institutional protections they're 
putting into place."

But Barry Fisher, retired crime lab director for the Los Angeles 
County Sheriff's Department, said the debate over the use of DNA in 
courthouse deals is more a public policy issue than a civil liberties 
one. The Orange County agency makes a compelling argument that it is 
trying to use the technology to identify those who have not made it 
into the state or federal databases, he said.

"Prosecutors are forever making these pre-trial deals with 
defendants. . . . This is just a different version of something 
that's been going on for just about ever," he said. "The fair 
question you can ask, and it's a legitimate question: Is the 
defendant being adequately informed and advised of what the consequences are?"

Jennifer A. Friedman, a Los Angeles County deputy public defender, 
found it troubling that many of those being offered the option of 
giving DNA do not have legal representation. "If I was a citizen of 
Orange County, I would be very interested in the racial and 
socioeconomic profile of the individuals in that database," she said.

People who accept the deal sign a waiver that explains the rights 
they are giving up and the fact that their sample will be put in the 
Orange County district attorney's DNA database, which is separate 
from the Department of Justice database.

But Friedman believes people need a "physically present" lawyer to 
answer questions.

"Even a fairly well-educated individual is not going to be aware of 
what they're going to do with the DNA sample, and the implications 
down the road," she said. "Not only for you, but for your family 
members. . . . There's no way to argue this is informed consent."

Those implications include the ability to use partial or familial 
matching to help solve cases.

Schroeder, however, said the agency is "not doing familial searches 
and we do not have any plans of doing familial searches."

Friedman acknowledged that it would be a "tough sell" for an attorney 
to tell someone, even if they are innocent, not to take the dismissal 
and urge them to continue a time-consuming, possibly costly and 
ultimately unpredictable legal process.

"To have prosecutors themselves managing forensic science seems to me 
to be an increasingly risky enterprise," Mnookin said. "It puts a lot 
of implicit and explicit pressures [on the process], where everybody 
wants to find the right guy, but boy, everybody wants to find a guy, too." 
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