CSI Games: If DNA Evidence Doesn't Fit in Orange County, Alter It?
By R. SCOTT MOXLEY
Thursday, March 13, 2008
In the wake of a November 2005 OC Weekly article detailing how a 20-year-old Buena Park man faced prison for a robbery/carjacking he didn’t commit, prosecutors asked the Orange County Sheriff’s Department crime lab to alter key exculpatory evidence.
Veteran forensic specialist Danielle G. Wieland made the charge last month during a civil deposition related to the December 2005 wrongful conviction and imprisonment of James Ochoa, according to documents obtained by the Weekly.
The allegation is just the latest in a series of sensationally callous screw-ups by law enforcement—police, prosecutors and judges—that aligned to raid Ochoa’s house, arrest him and steal his freedom. He spent 16 months in the Orange County Jail and a California prison. Later, DNA evidence fingered the real bandit, a career criminal in Los Angeles.
The Ochoa travesty didn’t happen merely because the Orange County district attorney’s office repeatedly ignored exculpatory facts. According to Wieland’s testimony, they actively sought to convict Ochoa as mounting evidence pointed to his innocence.
At the heart of the battle was the integrity of the OCSD crime lab’s work on the case. Wieland performed numerous tests to determine if Ochoa’s DNA could be found on items the bandit inadvertently left at the crime scene: a black baseball cap, a gray plaid long-sleeve shirt and a BB gun. There was also DNA left in the stolen car that didn’t belong to the two victims. All of the sheriff’s department tests excluded Ochoa as a DNA contributor. Two other crime-lab officials independently double-checked and confirmed Wieland’s results. In her official records, she recorded “no [Ochoa] match.”
That result created a problem for the DA’s office, where officials weren’t elated that the Weekly had already written a 2,100-word pretrial article (“The Case of the Dog That Couldn’t Sniff Straight,” Nov. 6, 2005), which predicted doom for Ochoa. For once, it turns out it wasn’t the police who were stubborn. According to Wieland’s deposition, a Buena Park police detective told her before testing that “if [Ochoa’s] DNA doesn’t come back on the hat and the shirt, the case is closed.”
Prosecutors didn’t share that sentiment. On Oct. 14, 2005, they asked to meet with Wieland before she shared her findings with defense attorney Scott Borthwick, a young Santa Ana-based lawyer who’d taken the case pro bono because he thought officials were railroading Ochoa. In those meetings—one by phone, two more in person—a deputy district attorney asked Wieland to do something she knew was not supported by the science and possibly outright unethical: Tell Borthwick that Ochoa’s DNA had been found on the shirt.
In a civil deposition taken last month for Ochoa’s wrongful-prosecution lawsuit, Ochoa attorney Patricio A. Marquez of Morrison & Foerster asked Wieland, “Did anyone ever exert pressure on you to change your [DNA] conclusions?”
“Yes,” Wieland replied. “Camille Hill from the DA’s office . . . She called me and asked me to change the conclusion that Mr. Ochoa was eliminated from [DNA found on] the left cuff of the shirt.”
According to the transcript, Hill told Wieland she “didn’t care” about the crime lab’s findings. “I want him [Ochoa] not excluded,” Wieland recalls Hill saying.
The DA’s demand alarmed crime-lab officials, who began to question why prosecutors were so “adamant” and “ranting” (Wieland’s description) about nailing Ochoa.
“I was pretty shocked and annoyed,” Wieland testified. “As a forensic scientist, we just look at the evidence.”
In a subsequent face-to-face confrontation, Hill arrived with four other DA staffers including Deputy District Attorney Christian Kim, who was assigned to Ochoa’s case. They argued that eyewitness and police-dog identifications of Ochoa as the bandit (sloppy and tainted, respectively) must have been right.
Wieland brought her own crime-lab colleagues as backup. According to Wieland’s deposition, “We kind of went back and forth [with the DA’s office] on why we felt the sample was eliminated as a contributor. And it ended up with us pretty much not backing down and saying he’s still excluded, still eliminated.”
Hill, a veteran prosecutor and DNA expert who once worked as a forensic specialist for the Houston Police Department, thinks this is a non-story. She describes herself as a “lawyer/scientist” and defends her contact on the Ochoa case with Wieland.
“I, in no way, did anything unusual,” Hill tells the Weekly. “About every week, we ask the crime lab to reconsider findings. Sometimes, they make changes.”
Hill says she originally thought “it looked like [Ochoa’s DNA] was [on the bandit’s shirt],” but she eventually accepted the sheriff’s department’s conclusion after the crime lab shared more details from an electropherogram.
As for Wieland feeling shocked by Hill’s request to alter her findings? According to Hill, “She shouldn’t feel afraid to answer my questions.”
Despite Hill’s queries, Borthwick learned the full extent of the exculpatory evidence. But Kim continued to prosecute Ochoa, a move that surprised Wieland.
In the deposition, she remembered that Kim told her, “You know, I just don’t know about this case.” The deputy DA also told her it wasn’t his choice to go to trial. “I do recall him telling me that Marc Rozenberg [Kim’s boss] had said that he wasn’t dropping it at this point,” Wieland said.
Wieland was set to testify for the defense when, three days into the trial, Robert Fitzgerald, a sassy Superior Court judge with an embarrassing track record of being rebuked by appellate courts for judicial improprieties, confronted Ochoa outside the presence of the jury with this offer: Plead guilty and get a two-year-prison sentence, or face the possibility of life in prison if you continue the trial and the jury finds you guilty.
The threat frightened Ochoa. Later, he described to me the factors in his decision: how the Buena Park police detectives had raided his parents’ house and arrested him for a crime he didn’t commit; how prosecutors had refused to consider the weakness of their case; and, finally, of the white, suburban-dominated Orange County jury members, whom, he believed, would accept law enforcement’s word as gospel. He ignored Borthwick’s advice to the contrary and took the deal.
Wieland never got a chance to tell jurors about the DNA evidence. She learned of Ochoa’s plea decision from the Weekly. In her deposition, she said she “felt sad that he took it.”
Not everyone was upset. Within two hours of Ochoa’s guilty plea, a Buena Park cop contacted me to gloat that my article outlining Ochoa’s innocence was erroneous and “anti-police.” A veteran police-dog handler (of dubious skill and ethics) involved in the case wrote me a letter celebrating the outcome, too.
Meanwhile, Ochoa prepared for hell. Sheriff’s deputies quickly shipped him to prison. His parents and siblings had been so traumatized they moved to Texas.
Ten months later, crime-lab scientists with the California Department of Justice matched the bandit’s DNA to Jaymes Thomas McCollum, who was sitting in the Los Angeles County Jail on other auto-theft charges at the time. DA Tony Rackauckas, who—with the aid of Hill—is in the process of building his own DNA crime-lab system independent of Wieland and her colleagues, promptly filed paperwork to release Ochoa from prison.
“We were thrilled,” Wieland recalled in her deposition.
On Oct. 20, 2006, the night he got out of Centinela State Prison, Ochoa sat in a Garden Grove restaurant and told me he’d lived an indescribable nightmare. Another inmate had stabbed him. Asked what else he’d experienced, he looked down and just shook his head in silence.
See related article: Oops: Judge, DA, cops quietly admit they sent an innocent 20-year-old to prison for 16 months
||Truth in Justice