Attorneys will argue on three motions on Monday in case against Patrick Harran

With Michael Torrice

On Monday, Aug. 26, University of California, Los Angeles, chemistry professor Patrick G. Harran is scheduled to appear in court for a hearing regarding felony charges of violating the state labor code. The charges stem from the death of research assistant Sheharbano (Sheri) Sangji after a 2008 fire in Harran’s lab.

Harran was initially charged in the case on Dec. 29, 2011. Preliminary hearing testimony was heard in November and December, 2012. Los Angeles County Superior Court Judge Lisa B. Lench ruled on April 26 that there was sufficient evidence to send the case to trial.

Harran faces four charges of violating California Labor Code section 6425(a), which makes it a crime for “Any employer and any employee having direction, management, control, or custody of any employment, place of employment, or of any other employee” to willfully violate an occupational safety or health standard in such a way that causes death or permanent or prolonged impairment of the body of an employee.

The four specific charges center on:

  • Failure to provide employees with information and training to ensure they are apprised of the hazards of chemicals present in their work area [Title 8, section 5191(f)(4)]
  • Failure to establish, implement, and maintain an effective injury and illness prevention program that includes “methods and/or procedures for correcting unsafe or unhealthy conditions, work practices and work procedures in a timely manner based on the severity of the hazard” [Title 8, section 3203(a)(6)]
  • Failure to require body protection for “employees whose work exposes parts of their body, not otherwise protected as required by other orders in this article, to hazardous or flying substances or objects” [Title 8, section 3383(a)]
  • Failure to require “clothing appropriate for the work being done” [Title 8, section 3383(b)]

Monday’s hearing will center on three motions filed by Harran’s defense team to try to get the case dismissed. While we have not yet been able to obtain the initial motions, we have the district attorney’s opposition arguments and the defense’s replies to the opposition.

Motion to dismiss pursuant to penal code section 995
California Penal Code section 995 says that an indictment or information shall be set aside by the court in a few specific situations, such as if a defendant has been indicted without reasonable or probable cause.

From the district attorney’s opposition document, page 10:

Distilled to its essence, the Motion to Dismiss claims: 1) The California Code of Regulations sections charged do not apply to defendant Harran because they only apply to an “employer”; 2) Defendant Harran did not “willfully” violate the law because he was unaware of his duties; 3) Victim Sangji was trained by someone (the defense offers up Pomona College, Norac Pharma, defendant Harran, and Dr. Paul Hurley as possible candidates); 4) Defendant Harran was not responsible for devising an Illness and Injury Prevention Program; and 5) The use of lab coats was “optional” at UCLA. Subsumed within these five arguments are various sub-arguments that will be addressed to the extent necessary below.

District attorney opposition to motion to dismiss
Defense reply in support of motion to dismiss

Notice of demurrer and demurrer to felony information
According to Nolo, a demurrer is “A written response to a complaint filed in a lawsuit which, in effect, pleads for dismissal on the point that even if the facts alleged in the complaint were true, there is no legal basis for a lawsuit.”

From the district attorney’s opposition document, page 4:

The defense essentially offers three arguments in support of its Demurrer to Felony Information. The defense asserts that the Information must be dismissed because the occupational safety or health standards: contemplated by Labor Code section 6425(a) and violated by the defendant do not apply to him. The defense claims that 1) Labor Code section 6425(a) is not a “stand-alone” statute and for criminal liability to attach a defendant must willfully violate any occupational safety or health standard, a claim that the People do not dispute. The defense further claims, however, that on the face of the charged regulations, those regulations do not apply to defendant Harran. The defense next claims that 2) if the safety or health standard is read to encompass the defendant, the charged standards or orders are imperrnissibly vague and therefore violate the defendant’s due process rights. The defense finally asserts that 3) Title 8 makes a clear distinction between employers and supervisors, and therefore this court must conclude that the charged standards or orders do not apply to the defendant and that supervisors are criminally liable under Labor Code section 6425 only when the specific standard or order expressly places obligation upon a supervisor.

District attorney opposition to demurrer
Defense reply in support of demurrer
Declaration of John J. O’Kane IV in support of defendant Patrick Harran’s reply in support of demurrer

Motion for Franks hearing, to quash arrest warrant, and demurrer to felony complaint
A Franks hearing, which gets its name from the 1978 case Franks v. Delaware, is usually held to determine whether a police officer’s affidavit used to obtain a search warrant was based on false statements by the officer. In this case, the defense argues that David Higuera, a senior investigator for the Los Angeles County District Attorney’s Office, omitted key information from his affidavit that led to an arrest warrant being issued for Harran. If the affidavit is eliminated, then the arrest warrant is invalid, and the case goes away because prosecution didn’t start before the three-year statute of limitations ran out.

This motion was filed under seal and parts of the filings are redacted. The arguments appear to be largely a repeat of the defense’s attempt to get the case dismissed last summer. The redacted parts of the filings likely pertain to an alleged juvenile criminal history of California Division of Occupational Safety & Health investigator Brian A. Baudendistel, who authored the report that formed the basis of Higuera’s affidavit. Harran’s defense team argued last summer that a conviction for a 1985 murder, when Baudendistel would have been 16, undermines the inspector’s credibility.

The other argument is that Higuera did not include information from a prosecution interview with Steve Carr, an organic chemist employed by the Los Angeles County Sanitation District. From the defense’s reply to the district attorney’s opposition argument, page 1:

Dr. Carr opined that: (i) it was “nebulous” as to whether Ms. Sheharbano Sangji would have required additional training regarding techniques used to transfer the pyrophoric reagent at issue here, tert-Butyllithium (“t-BuLi”) and the use of personal protective equipment (“PPE”); (ii) it was reasonable for Professor Harran or someone in his position to have believed that Ms. Sangji did not need ‘additional training regarding the use of t-BuLi or with PPE because Ms. Sangji’s. resume and background indicated that she was “operating at a high level” and a very “sophisticated person;”; Sangji already knew how to perform the requisite t-BuLi transfer techniques, as evidenced by a she performed on October 14, 2008, which was observed by Professor Harran and during which Ms. Sangji wore the appropriate PPE, as well as an experiment she performed three days later, on October 17, 2008; and (iv) that an experienced chemist would have performed the experiment in the manner Ms. Sangji utilized on the date of the tragic accident (e.g., without clamping the bottle or strict adherence to the Aldrich Bulletin, etc.).

District attorney opposition to motion for Franks hearing
Defense reply in support of motion for Franks hearing

Author: Jyllian Kemsley

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