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."