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O’Melveny Teams with UCI Law Clinic in DNA Collection Lawsuit

February 18, 2021

FOR IMMEDIATE RELEASE

NEWPORT BEACH—February 18, 2021—O’Melveny has teamed with the University of California, Irvine School of Law (UCI Law) Civil Rights Litigation Clinic to file a lawsuit on behalf of local taxpayers against Orange County and Orange County District Attorney Todd Spitzer.

The suit alleges that the Orange County District Attorney’s Office (OCDA) is using taxpayer funds to coerce often indigent persons charged with misdemeanors into forfeiting their constitutional rights through the unlawful collection of DNA for the OCDA’s private DNA database.

The complaint alleges that since launching the database in 2007, the OCDA has developed a system of taking DNA from people charged with misdemeanors. Through coerced plea deals, prosecutors offer often unrepresented misdemeanor defendants leniency or dropped charges in exchange for their DNA.

In addition, the complaint alleges that as a result of the OCDA’s coercive tactics, the database has grown rapidly since its inception. According to recent estimates, the database consists of approximately 200,000 DNA profiles and is larger than the databases maintained by 25 states. The complaint argues that this database deprives Orange County residents of their rights to privacy, counsel, and due process, and that it constitutes an illegal and wasteful expenditure of taxpayer funds.

“We are glad to work with UCI Law’s Civil Rights Clinic in seeking to halt the District Attorney’s coercive practices, which not only are unconstitutional, but have proven to be ineffectual as a crime prevention tool,” said partner Michael Yoder, who is leading the pro bono O’Melveny team.

“This lawsuit is an important challenge to the OCDA's coercive and invasive practice of pressuring individuals—who are often unrepresented by counsel—to surrender their most personal information. There is no legitimate justification for this program: The statistics show that the DNA database has proved to be wildly ineffective as a crime-solving tool, and the majority of matches it does make to unsolved crime are for non-violent property crimes,” added O’Melveny associate Jack Day, who is also working on the case along with O’Melveny associate Abby Formella.

O’Melveny’s commitment to exceptional client service extends to the underrepresented members of society through the firm's vibrant and award-winning pro bono practice. The firm’s pro bono program tackles the critical issues of the day, including immigration, housing, women’s rights, foster care, education, veteran affairs, jail reform, and community building. Our clients—from military veterans to couples seeking marriage equality to nonprofits stitching together a social safety net—are as diverse as the communities we serve. 

To learn more about O’Melveny’s award-winning pro bono program, visit our pro bono page or download our most recent pro bono program review.

About O’Melveny

It’s more than what you do: it’s how you do it. Across sectors and borders, in board rooms and courtrooms, we measure our success by yours. And in our interactions, we commit to making your O’Melveny experience as satisfying as the outcomes we help you achieve. Our greatest accomplishment is ensuring that you never have to choose between premier lawyering and exceptional service. So, tell us. What do you want to achieve? Visit us at www.omm.com or learn more in our firm at-a-glance, year-end highlights, and on LinkedIn, Twitter, Facebook, Instagram, and YouTube.

Contact:

Christopher Rieck
O’Melveny & Myers LLP
+1 212 326 2218
crieck@omm.com

UCI Law posted the following press release:

UCI Law Clinic Sues Orange County District Attorney Over Controversial DNA Collection Scheme

02-18-2021

IRVINE, Calif. (Feb. 18, 2021) — The University of California, Irvine School of Law (UCI Law) Civil Rights Litigation Clinic filed suit this week on behalf of local taxpayers against Orange County and Orange County District Attorney Todd Spitzer. The suit alleges that the Orange County District Attorney’s Office (OCDA) is using taxpayer funds to coerce often indigent persons charged with misdemeanors into forfeiting their constitutional rights through the unlawful collection of DNA for the OCDA’s private DNA database.

The complaint alleges that since launching the database in 2007, the OCDA has developed a system of taking DNA from people charged with misdemeanors. Through coerced plea deals, prosecutors offer often unrepresented misdemeanor defendants leniency or dropped charges in exchange for their DNA. Once surrendered, the complaint further alleges that the DNA is sent across the country to a private company for testing and is then permanently stored in the OCDA’s private database, where it is not subject to controls on use or dissemination. Misdemeanor defendants who accept these deals must also agree to forfeit their right to challenge OCDA’s retention of their DNA indefinitely.

In addition, the complaint alleges that as a result of the OCDA’s coercive tactics, the database has grown rapidly since its inception. According to recent estimates, the database consists of approximately 200,000 DNA profiles and is larger than the databases maintained by 25 states. The complaint states that this database deprives Orange County residents of their rights to privacy, counsel, and due process, and that it constitutes an illegal and wasteful expenditure of taxpayer funds.

“The District Attorney's office has created a secretive system of genetic surveillance that was never authorized by state law,” said Professor Emeritus William C. Thompson of the UCI School of Social Ecology, one of the plaintiffs in this action. “They sold this system to the County Board of Supervisors by promising it would solve a lot of crime, but that promise has not been kept. Instead we've seen a distortion of the justice system in which fundamental fairness and common sense have been sacrificed in an effort to coerce ever more people into giving up their constitutional rights in order to feed an unaccountable, ineffective bureaucracy. It is time to bring this wasteful failure of a policy to an end.”

“Prosecutors wield immense power—from deciding whether to charge someone with a crime to dictating the terms of a plea bargain,” said Professor Katie Tinto of the Criminal Justice Clinic at UCI Law, which assisted in the suit as well. “The single-minded focus on the DNA collection of low-level offenders warps any accurate assessment of the legitimacy of bringing misdemeanor charges or the offering of a just and appropriate punishment based on offender culpability.”

Attorneys supervising UCI Law students on this case include clinical professors Paul Hoffman, Melanie Partow and Katie Tinto. O’Melveny & Myers LLP attorneys Michael Yoder, and UCI Law alumni Jack Day (‘18) and Abby Formella (‘18) are pro bono co-counsel on the case.

“We are glad to work with UCI Law’s Civil Rights Clinic in seeking to halt the District Attorney’s coercive practices, which not only are unconstitutional, but have proven to be ineffectual as a crime prevention tool,” said Michael Yoder, Partner at O’Melveny & Myers.

UCI Law 3Ls Pauline Duong, Sarah Eller, Kaitlin O’Donnell and Morgan Peterson drafted the complaint with assistance from UCI Law clinical professors. The students are now working through the discovery phase and are preparing for trial.

More about O'Melveny

O’Melveny’s commitment to exceptional client service extends to the underrepresented members of society through the firm's vibrant and award-winning pro bono practice. The firm’s pro bono program tackles the critical issues of the day, including immigration, housing, women’s rights, foster care, education, veteran affairs, jail reform, and community building. Our clients—from military veterans to couples seeking marriage equality to nonprofits stitching together a social safety net—are as diverse as the communities we serve. To learn more about O’Melveny’s award-winning pro bono program, visit our pro bono page or download our most recent pro bono program review.

About the University of California, Irvine School of Law

The University of California, Irvine School of Law is a visionary law school that provides an innovative and comprehensive curriculum, prioritizes public service, and demonstrates a commitment to diversity within the legal profession. UCI Law students have completed more than 110,000 hours of pro bono work in the past decade. Forty-six percent of UCI Law’s graduates are students of color. At UCI Law, we are driven to improve our local, national, and global communities by grappling with important issues as scholars, as practitioners, and as teachers who are preparing the next generation of leaders. The collaborative and interdisciplinary community at UCI Law includes extraordinary students, world-renowned faculty, dedicated staff, engaged alumni, and enthusiastic supporters. More information on UCI Law is available here. Please follow us on Twitter @UCILaw and Facebook @UCIrvineLaw.

Media Contact:

UCI Law
Mojgan Sherkat
949-824-7937
msherkat@law.uci.edu