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Judge denies three Harran defense motions

By Michael Torrice

A Los Angeles County Superior Court judge today denied three defense motions that could have dismissed a criminal case against University of California, Los Angeles, chemistry professor Patrick Harran. With the rulings going against the defense, the case moves closer to trial. The judge set the next court date for Oct. 3. Harran could go to trial within 60 days of that date.

Harran faces four 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. In November and December, 2012, Judge Lisa B. Lench heard testimony in a preliminary hearing on the case. She ruled in April that there was sufficient evidence to send the case to trial. After the preliminary hearing, the case was sent to Judge George G. Lomeli for trial.

Before today’s hearing, Harran’s attorneys submitted three motions: one asking the judge for a so-called Franks hearing, another called a demurrer, and a third to dismiss the charges based on lack of probable cause. The district attorney’s office replied to each motion, and the defense then responded in writing to those replies.

In court today, the judge started by asking the defense and prosecution to go to chambers to discuss the Franks hearing motion. The hearing is often used to throw out warrants, such as search or arrest warrants, on the grounds that the police or district attorney obtained the warrant using false statements. In this case, the defense argued that Harran deserved such a hearing in part because David Higuera, a senior investigator for the Los Angeles County District Attorney’s Office, allegedly omitted key information from his affidavit for an arrest warrant for Harran.

The Franks hearing arguments were filed under seal and parts were redacted. The reason for the redactions and the judge’s request to hear arguments in his chambers could be because the motion may involve an alleged juvenile criminal history of California Division of Occupational Safety & Health investigator Brian A. Baudendistel. The investigator’s report 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, would undermine the inspector’s credibility.

The judge denied the Franks hearing motion in his chambers and did not discuss his reasoning in open court.

Next, Judge Lomeli heard arguments from defense attorney John J. O’Kane IV on the demurrer motion. A demurrer asks a judge to dismiss a case because the charges have no basis in law, according to Nolo.

Part of the defense’s argument centered on the wordings of the labor code statute and occupational safety and health regulations in the case. The defense argued that the regulations do not apply to Harran, because the University of California was Sangji’s employer, not Harran.

Harran faces four counts 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. Each charge refers to a certain regulation: Title 8, sections 5191(f)(4), 3203(a)(6), 3383(a), and 3383(b).

O’Kane argued that because the labor code statute describes no specific actions, then the judge should consider the individual regulations to determine if they applied to Harran. Sections 5191 and 3203 refer to employers only, O’Kane argued, and the two parts of section 3383 make no mention of whom they apply to. None of the regulations mentions supervisors, which the defense argued was Harran’s role.

When the judge denied the demurrer motion, he disagreed with both defense arguments. He said he believed Harran was an employer based on the fact that Harran could recruit, hire, and fire people. He went on to say that even if Harran wasn’t an employer, the four regulations also apply to supervisors.

After hearing arguments on the demurrer motion, the judge then allowed the defense to argue its motion for dismissal of charges. Defense attorney Daniel Prince focused on two points: Harran didn’t willfully violate the labor code statute because he didn’t know what was required of him, and Harran thought Sangji was trained to handle tert-butyllithium based on her resume and observing her carry out procedures with air-sensitive compounds. tert-Butyllithium ignites spontaneously when it comes into contact with air. The lab fire started when Sangji was using a syringe to transfer the compound. The plunger came out of the syringe barrel, exposing the solution to air.

Judge Lomeli denied this motion as well, stating that the district attorney’s evidence “managed to establish the requisite burden of proof of a ‘strong suspicion’” that Harran committed the charged crimes. He pointed out that the case had not reached a stage in which the district attorney had to prove its case “beyond a reasonable doubt.”

The judge explained his ruling further, stating that a willful violation of the labor code requires only that a person act intentionally, and does not take into account the person’s motive or ignorance of their obligations. He also said that Harran’s assumption that Sangji had the proper training did not relieve Harran of his responsibility to determine that Sangji was actually capable of handling tert-butyllithium.

Other coverage: Westwood-Century City Patch, Los Angeles Times, Associated Press

6 Comments

  • Aug 26th 201318:08
    by Dave

    Time for a chemist brain-drain out of the State of California?

  • Aug 26th 201318:08
    by Dave

    “…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.”

    Do we thereby understand that the violation of “an occupational safety or health standard in such a way that no one is harmed”
    is not, therefore, a violation?

    Who can even understand this legalese let alone know when they are following it or violating it?

  • Aug 26th 201318:08
    by Jyllian Kemsley

    @Dave–I believe that the answer to your second question is that it would be a civil violation but not a criminal one.

  • Aug 26th 201320:08
    by Dave

    @Jyllian–Yes, you are correct regarding what law is parceled out. The ramifications are what are of concern to the practicing chemist/employee/supervisor, however.

    One may violate CalOSHA standards, for example, as long as they don’t get caught. But if one gets caught and no one dies or is permanently impaired, one might be prosecuted in civil court. But if one is caught in the event an impairment is permanent, the case is prosecuted as a criminal case. Who is there who can possibly foresee any of these three scenarios? Which, of course, argues for the most strict language possible making up the policy. But this is not the case (see below).

    Without question the courts must make decisions how to handle cases and shunt them to the proper venue for trial in organized fashion as is currently occurring.

    Such a decision-making tree, however, similarly appears to just as much provide if not sanction the employer/supervisor with considerable latitude in exercising his/her individual judgment as to how likely–in his/her experience/judgment–any particular infraction might be by failing to provide unambiguous direction to the employer in the form of unambiguous policy in the first place.

    Arguably, the law might better be written in consideration of the the unknown vagaries of science in the interest of those of us who run research laboratories, rather than for the convenience of judges who necessarily must make a decision how to shunt a case to the proper venue, civil or criminal. Putting employers/supervisors in a double bind by laws which render verdicts on the after-the-fact outcome of an infraction made in light of latitude given in the form of policy language itself serves to make one guilty after-the-fact, dependent on the outcome of the violation rather the the existence of the violation itself.

    Thus, the law/policy might better be written in with mandatory language (“must”)rather than with permissive language (“may”), which latter indeed leaves particulars up to the employer/supervisor. Consider California occupational safety regulation 3383(a): “body protection _may be_ [underlining mine] required 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.” May be? Is it or is it not, is the direction that is sought but not given. Okay, I will decide. If the courts find against me for exercising my own judgment as indicated by the policy, then there is something wrong with the policy in the first place for giving me latitude to decide a 50/50 life/death matter I cannot forsee in advance. Let the policy clearly and unambiguously tell me what to do, not what I may do, and I will do it.

  • Sep 23rd 201312:09
    by yong

    I doubt even the safety training been taken, such an accident would be avoid. safety training is just a paper form for legal reason. However, PI or senior lab member should emphasize on MSDS or related properties on hazards chemicals/reagents ( what should do and not do for certain reagents ).
    None of safety training could give this details for hundred thousands of reagents. Ignoring the properties of new reagents (new reactions) while only focus on taking safety training or not, such an accident would happen again here or there.
    forget about safety training, it can not help for such an accident. it only gave you lab coat/glove, but did not teach you to do research before you tried any new reagent.

  • Sep 23rd 201314:09
    by David

    @ yong

    All this opens onto the old adage “Forewarned is forearmed.”

    Some interpret forewarning to mean “paper training” whereas others interpret it to mean, as you appear to do, knowledge of properties of reagents.

    Unfortunately, one interpretation at the expense of the other is a false dichotomy. Both are necessary. Where “paper training” errs is that what is necessary to know cannot be divorced from the experiential. Where knowledge of properties of reagents errs is that, if experiential, known hazards precede the experiment but, on the other hand, all experiments must be treated as subject to margin of error that potentially deviates from what is known.

    “Forewarned is forearmed” must be taken in the most inclusive sense possible. That possible, however, is limited by what is reasonable: there can never be enough paper training, there can never be enough experience.

    It will be of great interest so see on what side the court errs in this matter.

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