Tony Rackauckas Orange County District Attorney Orange County District Attorney's Office 401 Civic Center Drive West •*

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Keep the Crime Lab's database and the District Attorney's database separate until an audit can be conducted of the District Attorney's DNA unit. At this time, there appears to be no duplication of equipment and/or expenses involved with having two DNA databases since they serve very different populations of the criminal justice system. The OCDA believes that this recommendation is not warranted or reasonable. First and foremost, the OCCL does not maintain an independent local DNA database exclusively containing samples collected from offenders or non-suspect individuals. The OCCL is a local CODIS (LDIS) casework lab that interfaces with the state CODIS (SDIS) lab and, through the state, with the national CODIS (NDIS) system. Local CODIS or LDIS casework labs such as the OCCL are entitled to upload DNA suspect profiles obtained from crime scene evidence into the state or SDIS DNA database. It is the state CODIS or SDIS lab, administered by the California Attorney General's Office that analyzes offender samples and maintains a DNA database index containing offender DNA profiles. An audit of the OCDA DNA local database would not change the unanimous opinion of both the OCDA and OCCL that the local DNA database should be managed by the District Attorney's Office, not a casework laboratory. The OCDA DNA Database is an integrated system comprised of many components. The database software system includes FSS-iD and advanced programs created by the OCDA Information Technology Unit such as "BILL" (a program that stores and transfers collection information). The efficiency of the OCDA's DNA database program stems from the fact that the operation is streamlined. The process begins in the courtroom, where the decision is made to collect a sample. The process continues at the OCDA collection sites, where investigative assistants with specialized training collect a DNA sample, perform quality assurance and prepare the sample to be shipped for processing. The process continues when the genetic data is returned by the database lab to the OCDA forensic scientist for quality assessment, data review and upload of genetic data. The local DNA database has five stationary County DNA Collection Sites. In addition, the OCDA is in the process of designing and obtaining a mobile DNA collection vehicle using federal funds received by the OCDA in September 2009. There is a DNA Collection Site at each of the County's four main criminal courthouses and at the Central Jail. Each DNA Collection Site is staffed with several Sample Collection Investigative Assistants who collect local and state DNA database samples. Over the past several years, the OCDA has taken the necessary steps to develop the highly intricate infrastructure that comprises the OCDA DNA database system. This arduous process has included the research, development, design, and implementation of the local DNA database as well as the creation of protocols and procedures for the ongoing operation and expansion of both the DNA database sample collection program and the DNA database itself. One of the key components of the development process and ongoing database operation is the physical and technical security required for both the DNA samples and all genetic data. To meet these requirements, the OCDA developed and tested IT security procedures and regulations to protect the database. The OCDA also established and provided for specialized training and oversight of the personnel responsible for database operation. These elements are critical to the database's secure and efficient operation. The OCDA has the legal responsibility to protect the integrity and privacy of DNA samples that are collected and the DNA profiles that ultimately result. The OCDA is also responsible for the protection of the related personal information attached to these DNA samples. The OCDA DNA Database system has been carefully developed so that oversight, audit and security features are built into each step of database operations. This includes different levels of access and oversight of the various database components by OCDA personnel assigned to a specialized DNA Unit. The protocols that dictate the operation of the database include a highly detailed network of security restrictions designed to ensure the integrity of the database and the information it contains. Strict adherence to these regulations and supporting DNA data banking policies and legislation is critical to the legal and secure operation of the database and to protecting the private genetic information contained within the database. The structure and organization of our local DNA database system is designed to mirror that of the state DNA (SDIS) database system. The state DNA (SDIS) database system is under the care and control of California's Attorney General. The Attorney General oversees the state forensic laboratory system that includes numerous casework forensic laboratories and the lab administrators responsible for the day-to-day operation of the state database. In addition to database forensic scientists, the Attorney General maintains a staff of prosecuting attorneys and state police investigators who assist and guide state DNA database administrators. Every aspect of database operation must be carefully and constantly monitored and reviewed. Like the Attorney General, the District Attorney must maintain an integrated staff of forensic scientists, investigators, investigative assistants and attorneys to securely maintain and operate our local DNA database. The OCDA must also ensure that the forensic lab that analyzes individual DNA samples for the local DNA database is properly accredited and can correctly perform individual or offender DNA analysis following accepted scientific procedures. Like the Attorney General, the District Attorney must oversee all aspects of individual sample collection. The state provides offender sample collection kits, collection rules and regulations to all police agencies, probation departments and parole offices in the state. The Attorney General must ensure that every person who provides a DNA sample for inclusion into the state DNA database system has been properly identified by local law enforcement agency personnel. Further, the Attorney General must verify that all offender samples collected by local law enforcement agencies qualify for inclusion in the state DNA database system. and the second second second The responsibility to securely maintain both physical DNA samples collected from offenders and the genetic profile information that is generated from these samples is of paramount importance for both agencies. Samples that are lost, erroneously collected, mistakenly analyzed or compromised in any manner may impact an individual's civil liberties and thus jeopardize database security. Although an enormous undertaking, each system must include not only forensic scientists to perform the basic DNA testing, but also investigators to ensure that DNA samples and genetic information are securely maintained and attorneys to legally monitor database operations. As the District Attorney's Office, it is our legal responsibility to protect the integrity and privacy of the samples we collect and the genetic profiles that ultimately result. We are uniquely qualified to do so because of our existing staff of essential database personnel that includes forensic scientists, attorneys, investigators, investigative assistants and IT engineers. All OCDA DNA database personnel are thoroughly trained and familiar with the quality assurance guidelines and protocols of the database system. Trained DNA database personnel are a key component of the streamlined process that must operate under one management system to ensure the timely, appropriate, consistent, and efficient resolution of any issues that arises during the process. Operating within one specialized DNA unit under the oversight of one authorizing agency provides for more efficient and effective communication throughout the entire process. Ultimately this results in the most efficient operation, enforces strict adherence to policies and protocols and establishes accountability of all of the personnel involved. If the OCDA did not to have the ability to oversee the entirety of local database operations or individual functions of the database system were to operate outside of OCDA oversight, serious risks to the security of the database would result. Physically moving all or a portion of the database system or allowing for database oversight to be placed wholly or partially in the hands of another agency such as the OCCL would create both inefficiencies in database operations and present insurmountable risks to the security of the database and the privacy of the genetic data it contains. Oversight of the DNA database system by the one agency that is ultimately accountable for all aspects of database operation is critical. It is neither appropriate nor feasible for the OCDA to hand over sensitive personal and genetic information from individuals to another agency that is unable operate all facets of a local DNA database system and is outside the protected environs of our rigorously tested security system that exists to protect the integrity of the database. Placing the any portion of the database system outside of the physical security designed to house it and outside of the intricate IT security network designed to protect it, would potentially jeopardize the integrity of the information contained within the database.

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The County Internal Auditor should conduct an annual cost analysis as to what it would cost for the Orange County Crime Lab to analyze the DNA samples collected by the Orange County District Attorney that are now being sent to Bode Technology Group, Inc. of Virginia. The OCDA believes that this recommendation is not warranted or reasonable particularly in light of the Grand Jury Finding 2 that states that "the OCCL could not analyze the OCDA's samples for the same contracted price OCDA pays to Bode Technology Group, Inc." There are several factors the County may wish to consider prior a decision to expend resources to comply with the recommendation to "conduct an annual cost analysis as to what it would cost for the Orange County Crime Lab to analyze the DNA samples collected by the Orange County District Attorney that are now being sent to Bode Technology Group, Inc. of Virginia." Initially, the DNA analyses of local OCDA DNA Database individual samples were conducted by the FSS' nationally and internationally accredited forensic laboratory. Last year, the Orange County Board of Supervisors approved the selection of Bode Technology, also a nationally and internationally accredited forensic lab in Virginia, to conduct the DNA testing on the local OCDA DNA Database samples. Bode Technology can complete its testing and analysis at an extremely cost effective price, $24 per sample. Bode Technology is a well respected forensic laboratory that has processed over 1 million offender DNA profiles for 26 of our nation's state database systems. Currently, the OCCL DNA lab is designed and accredited to only perform casework DNA analysis. In other words, the OCCL primarily conducts DNA analysis on samples collected from or related to crime scenes. The OCCL does not currently have a DNA database analysis line and is not accredited to perform DNA database testing. If the OCCL were to pursue high volume DNA processing of database samples, the forensic scientists would need to set up completely separate DNA processing operation, hire and train additional staff from those performing casework and then seek accreditation of that new portion of the laboratory prior to processing any database samples. For quality assurance and contamination reasons, the processing of database samples should ideally be performed in a separate physical location from the processing of crime scene samples. Additionally, the processing of DNA databank samples in an efficient and cost effective manner requires a different and separate type of high volume processing operation than the processing of crime scene DNA samples. This typically includes a physically separate processing space, scientific equipment, instrumentation, robotics, reagents and consumables. It also requires different protocols, interpretation guidelines and specialized training of separate personnel performing the DNA data banking process. Significant initial capital investment and set up costs would be required for the additional equipment and staff that would be needed for such an operation. Also, a substantial period of time would be needed for the OCCL to become fully operational with a DNA data banking line that could process DNA database individual samples The ability of a new OCCL DNA database processing line to compete with the relatively low cost per sample of outsourcing to a private laboratory would need to be evaluated. SDIS DNA labs outsource high volume DNA databank samples to private laboratories simply because they cannot handle the sheer volume of samples and the growing backlogs of samples waiting to be tested. The efficiency of private laboratories allows for them to process samples at a much lower cost per sample which ultimately results in lower cost per sample for their customers. Of concern as well is the need to confirm every DNA database hit before providing a DNA match investigative lead to a police detective. CODIS offender samples are analyzed by the state in a forensic laboratory that is separate from the state system of casework crime labs. When a CODIS DNA cold hit occurs, the hit must be compared and confirmed by two separate labs (OCCL and State lab). This procedure is an integral component of the checks and balances built into the CODIS database hit confirmation process. Both the state DNA database lab and the local forensic casework lab must ensure that mistakes or errors were not made at either laboratory. Although differences exist between state and local DNA database hit confirmation process, protocols would still need to be developed in recognition of the OCCL's dual function as both a casework lab and a DNA database lab. Nevertheless, if it were determined that the OCCL DNA lab could establish a DNA data banking operation capable of processing local DNA database samples in a cost efficient manner with comparable turnaround times, the OCDA would certainly consider the OCCL for DNA processing instead of outsourcing.

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Annually review the costs associated with collection, analysis, and uploading DNA profiles in the Orange County District Attorney's database with a view toward instituting or raising fees from individuals, cities, or any others who request access to the database. The OCDA believes that this recommendation is not warranted or reasonable. Individuals who volunteer to provide DNA samples for inclusion in the local DNA database pay a $75 administrative fee to offset the cost of collecting, analyzing and uploading DNA profiles into the local DNA database. The OCDA has no plans to charge police agencies or the OCCL to upload crime scene profiles or request a local DNA database search. The OCDA DNA database exists to solve crime, exonerate the innocent, bring closure to victims and their families, prevent future crimes and protect the public. Denying access to the OCDA DNA database to law enforcement partners such as police agencies and the OCCL based on an inability to pay would violate the mission of the OCDA "to enhance public safety and welfare and create a sense of security in the community through the vigorous enforcement of criminal and civil laws in a just, honest, efficient and ethical manner." Requiring payment from law enforcement agencies to access the OCDA DNA database would create separate systems of justice that would distinguish between citizens that reside in economically challenged areas and those that reside in wealthier jurisdictions.

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The County of Orange Internal Audit Department should review the District Attorney's DNA unit to determine the actual costs associated with this specialized unit, including the collection and processing of the DNA samples, and the operation and maintenance of the database, including updating of the software. The OCDA believes this recommendation has been asserted without basis or justification and is therefore not warranted or reasonable. The OCDA is not opposed to a review of the DNA unit "to determine the actual costs associated with this specialized unit, including the collection and processing of the DNA samples, and the operation and maintenance of the database, including updating of the software" if such action will serve a legitimate purpose. Since no rationale has been provided for this recommendation, the OCDA can only assume that the basis for this recommendation is to conduct a cost-benefit assessment of the local DNA database system. Although a review of the DNA unit with particular focus on the local DNA database system can determine the costs associated with the operation of the local DNA database, such an audit cannot easily or accurately reflect the resources the local DNA database saves the County. Any attempt to conduct a cost-benefit analysis of the local DNA database is difficult at best. Of course, deliverables such as kits, analyses and salaries can be calculated over a given time period. The bulk of expenses, up until this point, primarily include startup costs for local DNA database set-up rather than day-to-day operational costs. Considering start-up, maintenance and DNA sample collection costs alone does not, however, paint a complete picture of the local DNA database. Not only does the local DNA database allow the OCDA to effectively solve crime, it also allows the district attorney, public defender, courts, jail system and police agencies to save valuable time and resources. It is difficult to assign a dollar figure to the benefits and savings gained by creating and maintaining a local law enforcement DNA database. How does one assign a monetary value to finding the perpetrator of a murder or exonerating an individual who was wrongly convicted of a crime? Is it possible to determine how much investigative, prosecutorial, defense bar and court resources are saved when a criminal is identified quickly through a local DNA database hit? Is there really a way of assigning a monetary value to incarcerating a violent offender before he hurts or kills another innocent person? Can the number potential crime victims who were not harmed be determined because a criminal was deterred from committing additional offenses knowing that his DNA profile was in the local DNA database? Will law enforcement agencies such as police departments, crime labs and prosecution offices ever "break even" or "operate in the black" in their effort to protect the public? The DNA Unit gathered and provided information regarding local DNA database operating costs to the Grand Jury in November 2009. In 2006, the DNA Unit purchased the necessary database software and license from Forensic Science Services (FSS) for $500,000. This fee was a one-time start-up cost that granted a perpetual software license to the OCDA. For the first several years, the DNA Unit paid FSS $100,000 annually for maintenance and support. Beginning in 2009, in the OCDA opted to pay for single-incident repairs rather than pay the all-inclusive maintenance fee. Originally, the OCDA obtained the DNA collection kits from FSS for $7 per kit. The FSS processed the first 550 kits for $40 and all subsequent samples for $52 each. To increase efficiency and save money, the OCDA engaged the services of Bode Technology on January 14, 2009. Bode provides DNA collection kits at a cost $4.95 per kit and DNA STR analysis for $24 per sample with a 30 day turn-around-time. OCDA collects a $75 fee from each individual who provides a DNA sample for inclusion in the local DNA database to help offset the costs associated with collecting and processing the DNA samples. The OCDA DNA Unit researched studies and articles regarding similar local law enforcement DNA databases to better understand the cost-benefit factors relating to maintaining a local DNA database. Not unexpectedly, extensive literature does not appear to exist on this topic highlighting the fact that Orange County is a forerunner in effectively utilizing DNA technology to solve crime. The OCDA patterned the local DNA database after the United Kingdom's DNA database. The UK DNA database has proven to be an effective crime- solving tool. The probability that a new crime scene profile loaded onto the UK DNA database will match an individual's profile is 52%. In the UK, when crime scene investigators collect DNA samples at a crime scene, the detection rate dramatically increases. For example, for domestic burglary, the detection rate increases from 16 to 41% and, for vehicle theft, from 8 to 63%.1" To understand how an in-depth cost-benefit analysis might possibly be conducted of the local DNA database, the OCDA studied the methodology of NPC Research, an Oregon-based company that specializes in courtroom cost analysis. NPC Research primarily conducts single issue court studies such cost effectiveness of maintaining DUI or Drug Courts. The company outlines its standard methodology in the various studies it conducts for courts across the country. Following NPC's methodology, the OCDA explored the feasibility of creating a study to specifically determine the cost saving associated with a single DNA collection sample. In order to find out how much time and resources are saved by collecting DNA samples, the County would need to identify the average time the District Attorney's Office dedicated to cases before and after the local DNA database was created. Additionally, similar data would be required for the Public Defender's Office, police agencies and the court system. Levitt, Mairi. 2007. Forensic databases: benefits and ethical and social costs. British Medical Bulletin 83: 235-248. Unfortunately, Orange County does not publish data regarding the average length of courtroom proceedings nor does it have data specific to how much time judges, attorneys, paralegals, investigators and clerks spend on case investigation, preparation and court appearances, especially for the lesser offenses that result in DNA samples for the local DNA database. While this information would possible to collect, such a process will be extremely time-intensive and would most likely require months to years of meticulous data collection. Even after gathering such data, the County would need to analyze average salaries for all parties involved and break down those annual salaries into smaller time units that correspond to the average case investigation, preparation and court appearance times. The County will only be able to determine how much time and resources the local DNA database saves if the cost savings due to truncated case investigation, preparation and court appearances is calculated. Due to the overwhelming difficulty of collecting time related data, the OCDA DNA Unit worked with the OCDA Research Unit to provide a few "snapshots" or examples that demonstrate that cases have been resolved more efficiently after the implementation of the local DNA database (See Appendix A). Due to the amount of information available and time restraints, District Attorney's Research Unit examined only defendants filed in the Central Justice Court between January 1, 2005 and December 31, 2009. Four areas of efficiency were scrutinized: 1. Number of hearings pre-disposition 2. Number of hearings post-disposition 3. Number of "formal" diversions 4. Number of felony bindovers . . TABLE 1: Misdemeanor Defendants Completed in Central Justice Center by Year Completed Defendants Completed 2006 2007 2005 2008 2009 Total Plea/Trial 4252 5510 8494 8337 8409 35002 Dismissed 573 556 698 621 754 3202 Diversion 551 663 551 499 363 2627 DNA Programs 275 559 1124 1958 TABLE 2: Felony Defendants Completed in Central Justice Center by Year Completed 2005 2006 2007 Defendants Completed 2008 2009 Total Plea/Trial 2336 2007 2398 2208 1808 10757 Dismissed 360 336 324 383 310 1713 Diversion 1369 1167 1030 787 530 4883 DNA Programs 193 1 194 TABLE 3: Number of Misdemeanor Hearings in Central Justice System by Year Completed 2005 2007 2008 Events 2006 2009 Total Pre Disposition 25796 31766 34516 28221 30607 150906 Post Disposition 15272 22160 26642 25504 97633 8055 TABLE 4: Number of Felony Hearings in Central Justice System by Year Completed Events 2005 2006 2007 2008 2009 Total Pre Disposition 21276 17844 22243 20553 15889 97805 14978 63816 Post Disposition 10109 12901 13657 12171 Although it cannot be known if the local DNA database system implementation was the sole reason for the decrease in the number of hearings pre-disposition between 2005 and 2009 in the Central Justice Center, both misdemeanor and felony local DNA database participating defendants had almost a third fewer hearings pre-disposition than non-local DNA database defendants. Misdemeanor local DNA database participating defendants also had a third fewer post-disposition events than non-local DNA database defendants. Fewer hearings translates to significant time and resource savings for the district attorney, public defender, probation, police, judges, and other court staff. Prior to the implementation of the OCDA local DNA database, many defendants were sentenced to diversion programs. Diversion cases require the most follow-up from the criminal justice system than any other type of case. Proposition 36 and Drug Court defendants are scheduled for multiple follow-up and progress reviews. These diversion defendants log multiple probation violations during the lifetime of their cases. Since the implementation of the OCDA local DNA database, the number of misdemeanor diversions decreased in the Central Justice Center by 60% and the number of felony diversions decreased by 45% during the same time frame. Empirical data gleaned from preliminary hearing statistics highlight another example of the cost benefits of maintaining a local DNA database. When an individual is charged with a felony in Orange County, one of the initial steps of the usual criminal justice process requires the prosecution to prove, to a magistrate during a preliminary hearing, that a crime has been committed and that there is reasonable cause to believe that the defendant is the person who committed the felony offense. As a t result of local DNA database collection efforts and the close evaluation of felony cases by the OCDA "Strike Team," the number of preliminary hearings conducted last year was reduced by 1,000. In Central Justice Center alone, the number of defendants bound over for trial decreased from 748 in 2005 to 335 in 2009, a decrease of 55%. The management of the Orange County Crime Lab should revert to its prior status