O.C. Pioneering a D.A.-Defender Project on DNA

As cutting-edge DNA technology changes the quest for justice in California and across the nation, two traditional legal enemies--Orange County’s public defender and district attorney--are developing a plan to work together to investigate possible wrongful convictions.

Details about the unusual union are still being worked out, but officials hope it will result in a team effort to examine new evidence and provide DNA tests for inmates whose guilt has come under question.

The move follows two high-profile Orange County cases in which wrongly convicted defendants spent years in prison, and it comes as the legal establishment struggles to determine whether there are other innocent people behind bars.

For example, the San Diego district attorney’s office has already offered to conduct free DNA testing for defendants who believe biological evidence will clear them. Ventura County last month began a program in which it would foot half the bill for DNA tests for some inmates who feel they were wrongly convicted. The cost of a DNA test runs $2,000 to $5,000.

And state Sen. John Burton (D-San Francisco) has introduced legislation that would require prosecutors to provide DNA testing to defendants who claim they were wrongly convicted.

The Orange County proposal would take this effort a step further by having public defenders work directly with prosecutors to investigate claims of injustice.

“I think it would be a great first,” said Public Defender Carl Holmes, who suggested the idea. “There’s no question in my mind, having been a defense attorney for 31 years, that mistakes are made.”

The program would rely heavily on the volunteer work of students from UC Irvine and Western State College of Law, who would do some of the legwork on the cases.

Both the public defender and district attorney’s offices quietly began working on separate “innocence projects” earlier this year after a judge ordered the release of DeWayne McKinney, who spent nearly 20 years in prison, wrongly convicted of an Orange County murder.

Assistant Dist. Atty. Mike Jacobs said prosecutors are now receptive to examining cases referred by the public defender and, if warranted, asking the sheriff’s crime lab to conduct DNA and other tests. In 1996, Jacobs obtained the release of Kevin Green, an Orange County man also convicted of murder, after DNA testing showed someone else committed the crime.

“I can’t say there isn’t another McKinney or Kevin Green out there,” Jacobs said.

Tori Richards, a spokeswoman for Dist. Atty. Tony Rackauckas, said the office is committed to examining any cases in which a conviction has legitimately come into question, even if that means taking a fresh look at old trials that prosecutors have long filed away.

“We will offer DNA testing to prisoners who believe they have been wrongfully convicted and have evidence to prove their innocence,” Richards said.

The cooperation would be particularly novel because it comes at a time when defense lawyers across the nation have accused prosecutors of blocking their efforts to use DNA evidence to investigate wrongful convictions.

“Innocence projects” are popping up across the nation, primarily run by defense attorneys and college students who take a new look at questionable cases. The concept gained steam in 1997 when a group of journalism students at Northwestern University proved that four men had been wrongly convicted of a gang rape and double murder in 1978. The men were later freed and awarded $36 million in compensation.

Nationally, the use for DNA evidence--which compares the genetic makeup of a suspect with tissue samples found at a crime scene--has resulted in the successful challenge of more than 60 convictions.

The issue of DNA testing has also emerged as a presidential campaign issue, with critics of Texas Gov. George W. Bush saying the state doesn’t do enough to determine the guilt or innocence of the long line of inmates on death row.

Alameda County prosecutor Rock Harmon, a widely respected expert in the use of DNA evidence in the courtroom, said Orange County’s proposal makes sense. “It’s a logical way to go,” Harmon said. “It’s a matter of time before it happens everywhere.”

The public defender’s office is planning to enlist volunteer staff attorneys, private criminal defense lawyers and students to examine cases in which defendants may have been wrongly convicted. If the volunteers find a solid case, they will solicit help from the district attorney’s office.

Brent Romney, a professor at Western State University College of Law in Fullerton, said he has already agreed to affiliate students with Holmes’ program. Romney, a former supervisor in the Orange County district attorney’s office, said he was intrigued about the proposed cooperation between the two offices.

“That would be very novel. I can see some potential conflicts of interest, but you’d like to think those could be ironed out,” Romney said. “Any case in which DNA would be a significant piece of evidence and it wasn’t used [at trial], we ought to look into it. The D.A. ought to be just as quick as the defense if it would be a significant piece of evidence.”

Orange County officials are still working out details of their effort, including the exact criteria in which cases would receive a second look. Richards said Rackauckas would need to meet with top public defenders to examine those issues before making a final decision whether to move forward.

“If they bring a case to us with evidence someone might be innocent, then we’d test the DNA and look at the case,” Richards said.

Assistant Public Defender Denise Gragg, who filed the motion that prompted McKinney’s release from prison, said she was impressed by prosecutors’ interest in working with defenders. “Usually, the prosecutors are resisting reopening cases or releasing physical evidence in closed cases,” Gragg said.

The efforts are being watched with interest in the local legal community.

“This is an imperfect, human system,” Orange County Superior Court Judge Pamela Iles said. “If we can make it better, that’s wonderful.”

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Times correspondent Holly J. Wolcott contributed to this report.