[The Orange Box]Orange County Prosecutors Operate “Vast, Secretive” Genetic Surveillance Program

  William Thompson, a professor emeritus of criminology and law at the University of California, Irvine, lives in University Hills, an on-campus residential community that affords, as he says, “poorly paid academics” in an area with high housing costs the ability to live near work. He was outside one day a few years ago when he was approached by a neighbor, another member of the university faculty, who had a story for him. She’d been walking her dog without a leash — which is generally against the law in Orange County, where Irvine is located — when she got stopped and cited for the misdemeanor offense. She expected to go to court to pay a fine (a first offense is $100), but when she got there, she found out it wouldn’t be that simple. Instead, she was told that to make the infraction go away, she would have to give up a DNA sample.

  This was not the first time Thompson had heard a story like this. Thompson has been a DNA wonk for decades and has written extensively about issues with DNA analysis and the human factors, including biases, that can impact forensic sciences. As something of a go-to guy on campus where issues related to DNA are concerned, he’d been hearing similar stories from students. It wasn’t surprising that students occasionally found themselves sideways with the law for low-level issues like minor pot possession. “That kind of stuff,” he said. “Most of these minor cases would be settled by people showing up, pleading guilty, paying the fine.”

  That began to change in 2007, when the Orange County District Attorney’s Office, or OCDA, started compiling its own DNA database. “Now students are coming in and saying, ‘Well, I went in to pay my $100. I didn’t want to hire a lawyer. I didn’t want to tell my family about this. So I was going to go pay my fine, but they wouldn’t let me,’” Thompson said. Instead, prosecutors were threatening to up a simple pot possession charge to “possession with intent to sell” unless the student agreed to surrender a DNA sample. He says students would ask, “Is this fair, professor, that they’re threatening to prosecute me for a felony, for something that’s not a felony, in order to get me to give my DNA?”

  I’m in

  States have long maintained DNA databases containing the profiles of people convicted of felony crimes as well as unknown profiles developed from crime scene evidence. But those systems are created by legislation, strictly regulated, and publicly funded. They typically link up to the Combined DNA Index System, a nationwide network administered by the FBI that was built with the goal of helping to solve and deter crime.

  It’s the only known DNA database in the country run by prosecutors.

  In contrast, the Orange County database is unregulated and targets individuals charged with some of the lowest-level misdemeanor offenses imaginable — generating DNA samples that, by law, cannot be uploaded to CODIS. It is the only known DNA database in the country run by prosecutors, who now routinely predicate many misdemeanor plea deals or case dismissals on an individual agreeing to give up their genetic privacy. As of 2019, the database contained nearly 200,000 DNA profiles, making it far larger than many state-run, legislatively created DNA databases.

  The scheme is questionably legal and ethically dubious. “The prosecution of marginal petty misdemeanor cases has allowed prosecutors to create a vast genetic surveillance system that would otherwise not exist,” University of California, Berkeley law professor Andrea Roth wrote in a 2019 law review article on the OCDA program, known locally as “spit and acquit.” Roth was the first to do a deep dive into the “vast, secretive” database.

  The existence of the genetic database has prompted an ongoing legal battle that elected Orange County District Attorney Todd Spitzer has deemed “frivolous.” Still, the program has raised a host of serious questions, including whether Orange County prosecutors manipulate defendants caught in the misdemeanor justice system with the single goal of expanding their database.

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  The Plaza of the Flags near Orange County Superior Court on May 1, 1997.

  Photo: Don Bartletti/Los Angeles Times via Getty Images

  The national network of DNA databases has been around for more than two decades and was initially designed to store forensic samples developed from crime scene evidence as well as the DNA profiles of individuals convicted of serious felony crimes. As of April, CODIS contained more than 14 million “offender” profiles and 1 million forensic profiles.

  But the practice of collecting and storing DNA in connection with the criminal legal system has not been without controversy, particularly when states have sought to expand the pool of people from whom DNA can be collected.

  After Maryland expanded its DNA collection statute to include those simply arrested on felony charges, a suit challenging it on Fourth Amendment grounds made it to the U.S. Supreme Court, which upheld the practice. Collecting a DNA sample from an arrestee was just a means of identifying a person, the court reasoned, drawing a comparison with fingerprints, which police routinely collect from detainees. “In this respect the only difference between DNA analysis and the accepted use of fingerprint databases is the unparalleled accuracy DNA provides,” the 5-4 majority concluded.

  According to the National Conference of State Legislatures, 31 states allowed for DNA collection from arrestees as of 2018. Twenty-nine states collect arrestee DNA only for certain felony charges — like murder or rape — while eight also allow DNA collection in connection with more serious misdemeanor charges. Notably, all of these laws afford a person the opportunity to have their DNA profile expunged from the database if they are not ultimately charged with a crime, have their charges reduced, or are acquitted at trial — one of the facts the Supreme Court cited as a safeguard that helped square the Maryland law with constitutional protections. (CODIS contains more than 4 million arrestee profiles.)

  In 2004, California voters passed their own such law. Proposition 69?—?the DNA Fingerprint, Unsolved Crime and Innocence Protection Act — not only expanded DNA collection to include most arrestees, but also greatly expanded the number of crimes eligible for DNA collection in general, from a discrete list of felonies to “any felony offense.” The proposition also expanded collection to include certain misdemeanors, like sex crimes.

  As it turned out, Roth said, Orange County prosecutors played a key role in drafting the proposition. And it contained a provision that she says many overlooked: It allowed for DNA collection as a condition for a plea deal, even for crimes that wouldn’t otherwise qualify for collection under the law. Despite concerns raised by privacy advocates, Prop 69 passed with 62 percent of the vote.

  In March 2007, Orange County prosecutors brought an ordinance to the local Board of Supervisors that would allow the district attorney’s office to set up its own DNA database focused entirely on misdemeanor crimes. The database would not be governed by the same laws that regulated the state system, which included quality assurance guidelines in the DNA testing process — a requirement for samples to be uploaded to CODIS. And in addition to containing samples generated in connection with misdemeanor plea deals, as authorized by Prop 69, it would also include samples collected in connection with a prosecutor’s decision to dismiss a case altogether.

  In other words, prosecutors sought the ability to solicit and store the genetic profiles of people whose cases would never be tried and who would not, aside from arrest or citation, face any criminal sanction in connection with their alleged crimes — a scheme not specifically authorized in Prop 69.

  Orange County District Attorney Tony Rackauckas speaks during a news conference outside the Newport Beach Police Department on September 19, 2018, in Newport Beach.

  Orange County District Attorney Tony Rackauckas speaks during a news conference outside the Newport Beach Police Department on?Sept. 19, 2018, in Newport Beach.

  Photo: Mark Rightmire/Digital First Media/Orange County Register via Getty Images

  Tony Rackauckas, the elected DA at the time, wanted to create his office’s own stash of genetic profiles because of a backlog in DNA testing connected to burglary and other low-level crime scenes, the Voice of OC reported in 2010. But one former prosecutor told Roth that Rackauckas believed most violent crime was committed by locals whose criminal histories contained no more than low-level arrest records. And thus, by amassing a database of genetic material from thousands of people who’d done little if anything that was criminal, his office could combat more serious violence — a sort of “broken windows” theory of crime. The Board of Supervisors unanimously approved the proposal.

  In 2016, Roth headed from the Bay Area down to Santa Ana, the site of Orange County’s largest courthouse, to watch how this DNA collection scheme played out in real time. She was troubled by what she saw. The action takes place in arraignment court, a person’s first court appearance, where they’re formally charged and asked for their plea — guilty or not. It’s where a person’s right to legal counsel takes effect. It’s a critical juncture in the criminal legal process, but it’s also a chaotic place.

  Roth worked as a public defender in Washington, D.C., before becoming a law professor, so she was familiar with how all this works. But in Orange County, she was presented with a situation she described as “bizarre.” There was no interaction with the public defenders in the room, she said. Instead, prosecutors would call out a list of names and then ask folks if they wanted to step into the hallway to chat about their cases before being arraigned. “I listened to some of the conversations and wrote down what they said verbatim,” she said. “I found it really disturbing.”

  “I didn’t see prosecutors trying to clearly be abusive or to take advantage of an unrepresented person,” she said. “I saw prosecutors who were just kind of doing their job without really thinking about it too much, saying, ‘Hey, if you give DNA down the hallway, we’ll give you this plea offer, or we’ll dismiss this case, or we’ll dismiss these counts and not this one.’” Nobody invoked their right to an attorney, Roth said. “Everybody did it. I didn’t see anybody who said, ‘Wait, I’m not giving my DNA, are you crazy?’”

  Once a defendant agrees to participate in the DNA scheme, they have their cheek swabbed and pay a $110 fee that funds the database; in 2019, Roth estimated that the OCDA’s office has likely collected more than $11 million in fees. Defendants also sign a waiver agreeing not to challenge the constitutionality of the practice and relinquishing the right to ask that their DNA be removed. In Orange County, there is no mechanism for an individual to have their DNA expunged.

  “The lowest risk group of people can’t ever get their profiles expunged. It’s there for the rest of time.”

  This is among the many concerns that Roth has with?the program. She tried to get access to information about the database — including demographic data about the people whose information is stored there — but was denied by the DA’s office. The whole scheme sets up an absurd situation. People charged with some of the pettiest of crimes have forever given up their genetic information, where individuals charged with far more serious offenses are, under certain circumstances, able to have their genetic information expunged. “The lowest risk group of people can’t ever get their profiles expunged,” Roth said. “It’s there for the rest of time, whereas if you’re arrested for murder and have to give a sample and you’re later acquitted or the case is dismissed, you can get your profile expunged.”

  The difference is that the person charged with murder was compelled to give their DNA by statute, whereas Orange County off-leash scofflaws have signed the waiver, a consent form that strips them of future rights to their private genetic information. This raises a related issue, experts said: Is this really informed consent? “Do you truly understand even the choice that you’re making? Or are there things that you can’t foresee?” Roth asks. Like, for example, what this database might be used for in the future, or who might have access to it.

  And since the choice is made prior to talking to an attorney, it’s hard for an individual to assess whether the state’s case against them is even that strong. Maybe, if they asked for an attorney, they’d find out it wasn’t, win in court, and never be faced with having to give up their DNA.

  The idea of coerced consent is an ongoing problem in the plea-bargaining system generally and with the OCDA’s DNA program. Roth thinks the office might also be requiring defendants to accept an “unconstitutional condition, which is it’s not an actual benefit,” she said. About 94 percent of state criminal cases are resolved via plea deals. If the DA’s office was likely to settle your off-leash infraction or minor?drug possession case by plea or dismissal anyway, is adding the requirement that you provide DNA just piling on? “You’re … giving me something I would have gotten before,” Roth said. “The only reason you’re withholding it is that you want me to agree to this other thing.”

  Consider William Thompson’s neighbor, who was popped for walking her dog off the leash. “She’s worried about having her DNA in there,” he said, but she felt she had no choice. “She would have had to hire a lawyer; she would’ve had to make multiple court appearances. I mean, it would have been quite expensive and kind of arduous” to fight the charge in court, he said. “Large disruption to her life if she says, ‘No, I don’t consent to give you my DNA.’ And so she ended up ‘consenting,’ but it’s not really voluntary. She had her arm twisted, and she’s not happy about it.”

  

  This is not a small point. The misdemeanor system is vast — far larger than the felony criminal system. Misdemeanor cases make up 80 percent of the country’s criminal dockets. “This is what the American criminal system does most of the time and how most people will encounter the criminal system,” said Alexandra Natapoff, a law professor at Harvard who is an expert on the nation’s misdemeanor system. According to data Roth collected in 2017, Orange County charges between 60,000 and 80,000 people a year with misdemeanor infractions.

  “The Orange County spit-and-acquit program and their DNA database reveals, I think, some of the great risks of running our misdemeanor system the way that we do,” said Natapoff. “The risk, for example, that people will be charged with misdemeanors for reasons other than public safety, the risk that low-income people and people of color and other vulnerable individuals will be unfairly swept into the system because they don’t have the resources to defend themselves or the knowledge to defend themselves. And it’s the risk that we are using the low-level criminal system to do all kinds of surveillance and social control work that renders our criminal system fluffier, more unfair, and more unequal.”

  Given the nature of the misdemeanor system, the OCDA scheme raises an additional question: Are prosecutors charging people with low-level crimes just to feed the database? “The other concern about this program is … it might give the DA an incentive to file a lot of low-level charges against people, knowing that they can then just make this deal, get their DNA, and dump them,” said Simon Cole, who, like Thompson, is a professor of criminology at UC Irvine. “It could encourage a kind of overcharging against vulnerable people that is concerning.”

  Indeed, in her law review article, Roth wrote that the OCDA targets individuals for inclusion in the DNA database who pose no risk to public safety. The office would not consider offering DNA-based plea deals or dismissals to those charged with more serious offenses, she added, which seems to cut against the professed goal of the database: to help solve or deter violent crime.

  “We’re already talking about a group of people who aren’t even in here for felonies. We’re talking about misdemeanors,” she said. “Even among those, these are the lowest risk people because that’s your criterion for giving them a deal — that they’re no public safety risk. It’s like, if there’s no public safety risk to them, then they’re probably not going to be going around committing rapes and murders either.”

  

  Orange County District Attorney Todd Spitzer speaks during a meeting in Santa Ana,?Calif., on?Feb. 21, 2020.

  Photo: Paul Bersebach/MediaNews Group/Orange County Register via Getty Images

  Back when DA Todd Spitzer was a member of the county Board of Supervisors, he was a vocal critic of the OCDA’s involvement in DNA collection and testing. Once he was elected district attorney, however, he changed his tune. (Whether Spitzer was actually opposed to the program or his opposition was merely another chapter in an ongoing feud with Tony Rackauckas is up for debate.) Now Spitzer is a perfervid supporter of the county’s genetic surveillance program, which he claims is a public safety success story.

  In an April opinion piece published in the Orange County Register, Spitzer wrote that his office’s DNA program had “solved crimes that would have never been solved.” The piece was in response to an op-ed Thompson wrote that explained why he and his UC Irvine colleague Cole had signed on as plaintiffs to a civil lawsuit challenging the collection scheme. Spitzer was clearly miffed: “The OCDA DNA collection program is lawful — and effective,” he wrote. “That fact is indisputable.”

  Spitzer recently trotted out two examples that he says demonstrate how effective his database is. The first involves murder charges brought against two brothers in 2009, in connection with the death of a woman who they had strangled and then set on fire. According to the OCDA, the crime was linked to the pair based on a hit between crime scene evidence and DNA one of the brothers had previously provided the county in connection with a misdemeanor domestic violence case.

  Though Spitzer didn’t name the defendants in his Register piece, the case involved brothers Zenaido and Gabino Valdivia-Guzman. However, at the time the brothers were charged, the OCDA put out a press release that didn’t mention anything about their capture being based on a hit to the DA’s database. Moreover, when Roth asked the office for its success stories back in 2016, it gave her five. The Valdivia-Guzman case was not among them. Since the case was from 2009, one would expect it would’ve been included.

  The second case Spitzer highlighted involves a man named Santos O’Dell, who was charged for a 2004 cold-case kidnapping, rape, and murder in Arizona. According to the OCDA, O’Dell had provided his DNA to the database after violating a protective order that barred him from harassing his ex-wife. Again, however, this story was not included in the five the OCDA gave to Roth. And in a 2011 press release on the case, the OCDA noted that it was solved due to a CODIS hit, not one to the county’s database.

  In analyzing the five cases the OCDA provided in 2016, Roth found a similar pattern. Three of the cases could be connected to the county database; two could not. Of those, one was solved because of a CODIS hit. In the fifth, the defendant’s DNA had never been uploaded to the OCDA database to begin with.

  And the county’s own data suggests that the database isn’t doing what it was designed to do. In 2018, the office reported that just 0.67 percent of the genetic samples matched to DNA collected from crime scenes — and most of those hits were to nonviolent property crimes.

  Kimberly Edds, a spokesperson for the OCDA’s office, declined to answer a list of questions about the DNA program, citing ongoing litigation.

  In February, the civil lawsuit bearing Thompson’s and Cole’s names was filed in Orange County civil court. It challenged the OCDA’s DNA scheme on constitutional grounds — as a violation of state privacy rights and federal due process and right to legal counsel protections — as well as under a California statute that allows taxpayers to sue to stop government programs that are wasteful or illegal. The suit asked the court to halt the program and return to defendants the fees they paid to have their DNA collected. Since the program’s inception, it has “resulted in very few positive matches to crimes committed, while permanently compromising misdemeanor defendants’ genetic privacy and constitutional rights,” the complaint reads. “Accordingly, the DNA-driven plea deals are unnecessary and provide no public benefit.”

  Spitzer essentially scoffed at the filing, and in response, the county filed a demurrer, an official objection to the plaintiff’s complaint and the legal equivalent of saying, there’s nothing to see here. “Fundamentally, plaintiffs’ complaint is based on argument, contention and conclusions, and an abstract opposition to the use of DNA in law enforcement, rather than facts,” it read.

  In late May, Judge William Claster issued a ruling siding with the county — at least for now. He gave Thompson and Cole the option to retool and refile the suit, which they did on June 29. Nonetheless, Spitzer was haughty in a press release announcing Claster’s decision, which he used as a vehicle to take direct swipes at Thompson and UC Irvine’s law school. “UCI Law School should issue a public apology for attacking a program that helps to keep our communities safe,” he said. “I certainly hope UCI Law School does a better job educating students to become lawyers than it does teaching them wasting public resources to attack lawful programs just because they don’t agree with them.”

  “What kind of consent is that, when it’s so coercive? … It seems like a sting, almost.”

  Regardless of whether the DA’s program is illegal, it is ethically problematic, says Lara Bazelon, a law professor at the University of San Francisco. This goes back to the question of consent and whether the OCDA’s office is gaming the system to get it. “The DA can say they consented. But my question is, what kind of consent is that, when it’s so coercive? And then I guess you could say, well, all plea bargaining is coercive, Lara, like, everybody is coerced at some point, because if you don’t take the plea bargain, something worse could happen to you,” she said. “And that’s true, as long as they were, in good faith, going to go forward on an actual charge. But I don’t really see the possibility of that in the vast majority of these cases, if for no other reason than there just aren’t resources for it. And so it seems like a sting, almost. It seems like a strategy to take Big Brother to the extreme.”

  Indeed, Roth is concerned that the OCDA scheme may be putting more people under the thumb of the criminal legal system with no consequent public safety benefit — and in this case, net-widening genetic surveillance. A typical forensic DNA sample — say, taken from saliva or blood found at a crime scene — does not contain a person’s entire genetic code. Rather, forensic DNA is a collection of genetic markers at certain locations across the genome known as “junk DNA,” areas that do not encode proteins. But a mandatory DNA sample, as with the OCDA database, gives prosecutors access to a person’s entire genomic sequence, which offers a “treasure trove” of information, Roth wrote in her law review article, including “information about one’s familial relationships, genetic traits, propensity for diseases and the like.”

  The fact that Orange County’s DNA scheme is a black box, operating with zero transparency outside of public debate, makes the idea of permanently allowing the DA’s office access to so much genetic information all the more problematic. “The larger issue is, are there limits on what they can use this for?” Roth asks. “Are there reasons why you wouldn’t want your DNA in the database? Yes. Are there uses to which it could be put in the future that we can’t even imagine right now? Yes.”