Wednesday, August 8, 2012

#SheriSangji: C&EN on the UC agreement, the Baudendistel gambit

Jyllian Kemsley and Michael Torrice have published a quite comprehensive look in Chemical and Engineering News at the results of the agreement between the Los Angeles County District Attorney's Office and the UC regents. In addition to an overview of the settlement (in return for dropped charges against the UC reagents), Drs. Kemsley and  Torrice talk to a number of legal experts regarding what I've termed "the Baudendistel gambit", i.e. that Professor Harran's legal team have discovered that Cal/OSHA senior investigator Brian Baudendistel was involved in a murder case as a teenager, and (according to the defense) was convicted of first-degree murder.

The facts of the settlement are mostly known to the readers of this blog, but there are a number of segments that are worth highlighting again:
On July 27, in exchange for the district attorney dropping the charges, the UC regents accepted responsibility for the conditions under which Harran’s laboratory was operated at the time of the incident. They also agreed to establish an environmental law scholarship in Sangji’s name at UC Berkeley. The scholarship will have a $500,000 endowment, to be funded within one year. 
UC also agreed to comply with the terms of a specified lab safety program for the chemistry and/or biochemistry departments at all campuses. In large part, the program requires the university system to follow the labor code laws it was cited with breaking: For example, the campuses must maintain laboratory safety manuals and chemical hygiene plans, “in full compliance” with California labor code. 
Other components of the program state that UC campuses must require principal investigators (PIs) and all other laboratory personnel to complete training on laboratory safety and their safety responsibilities, prohibit new PIs from operating their labs until after completing lab safety training, ensure that standard operating procedures (SOPs) are written and reviewed for a specified list of chemicals, and report occupational injury or illness immediately to Cal/OSHA. The training components must begin within 60 days of July 27. 
UCLA is further obligated to conduct safety inspections and require PIs to assess whether personal protective equipment (PPE) is adequate for the procedures done in their laboratories. The agreement outlines a minimum laboratory PPE standard, starting with full-length pants and closed-toed shoes to be worn at all times. It also dictates that anyone found working in a laboratory without required PPE must be removed from the lab and the incident documented.
What I find interesting and surprising is the seeming lack of information from the UC system as to how they might plan to implement the Agreement:
UC does not have an estimate for the cost of implementing this program across its 10 campuses. It did add a new position for a laboratory safety manager to be part of the president’s office. That person “will assist campuses in implementing system-wide laboratory safety initiatives developed during the past two years and serve as project manager to ensure timely completion of those initiatives and processes specified in the settlement agreement,” Young says. 
How the agreement will be implemented on campuses remains to be seen. UC Davis’ Chemical & Lab Safety Committee “has been evaluating our practices extensively over the past year and has developed recommendations for a more robust, strengthened lab safety program,” says spokeswoman Claudia Morain, adding that the recommendations align with the terms of the agreement. The committee’s proposal is currently being reviewed by the provost. Representatives of several other UC campuses did not respond to interview requests or declined to comment.
I am terribly skeptical of most top-down programs; this one is no different.

Drs. Kemsley and Torrice also spend a significant amount of time covering the Baudendistel portion of the case; I quote liberally here:
As campuses in California and elsewhere try to learn from the tragedy and settlement agreement, Harran’s defense against the criminal charges continues. After the July 27 court hearing, Harran’s attorney, Thomas P. O’Brien, described the prosecution’s case as “flawed from the start” and “based entirely on a report by a known killer and a known liar.” 
In the July defense motion, O’Brien and colleagues requested a hearing into the credibility of Cal/OSHA investigator Baudendistel and a dismissal of the charges against Harran. The motion asserts that Baudendistel was convicted of first degree murder for a crime committed in 1985, when Baudendistel was 16. According to newspaper accounts of the crime, three men shot and killed a 26-year-old man during a methamphetamine deal. One of the perpetrators was a Brian Baudendistel who the defense team determined had the same birthday as the Cal/OSHA investigator. [snip] 
...Maureen Pacheco, assistant director of the Center for Juvenile Law & Policy at Loyola Law School in Los Angeles, says Harran’s defense team is creative, because the requested hearing is typically used to question the validity of search warrants, not arrest warrants. “It’s a novel issue,” she says. “I haven’t seen it before.” 
Pacheco and other experts in juvenile law say that, if Cal/OSHA investigator Baudendistel is the one who was involved in the 1985 murder, then he probably didn’t have to report the crime on his applications. The person connected to the 1985 murder was a minor at the time of the crime, and a 1990 U.S. Court of Appeals decision describes him as a ward of the California Youth Authority, the state’s juvenile prison system. That means he was tried through the juvenile court system, not the criminal one.
In California, state law allows juvenile defendants to petition a judge to seal their juvenile criminal records. The person who pled no contest to first degree murder could have asked for his records to be sealed after completing the terms of his probation and providing sufficient evidence of his rehabilitation, Pacheco says. (In 2000, California voters passed a ballot initiative that made murder one of several crimes that juvenile offenders can’t have sealed. So a petition to seal would have had to be filed before the initiative went into effect.)
According to California law, a sealed juvenile record essentially means the case never happened, Pacheco says. Therefore, the person convicted of the murder could have truthfully answered “no” on any application asking if he had prior criminal convictions. “Because according to the law, there hasn’t been one,” she says. 
The reason for wiping the slate clean for juveniles, Pacheco says, is rehabilitation. “The whole goal of juvenile court is that people can put those things behind them,” she says. “And that wouldn’t be possible if others could always go back and access those records.” 
Even if the convicted person hadn’t sealed his juvenile records, they still would remain confidential, and it’s unlikely he would have been compelled to disclose his past on a Cal/OSHA job application, says Stephanie Sauter, the founder of the Law Project of Los Angeles, which provides legal assistance for people with past criminal convictions. 
But, if investigator Baudendistel is the person who was convicted, he could have hurt his credibility in his responses to the district attorney’s questions about the 1985 crime, Pacheco says. The only way to know for sure, she says, is to look at the specific questions the district attorney asked and the details of the 1985 case. For example, if the attorneys asked him if he had been a ward of the California Youth Authority, to be fully honest, he’d have to respond, “yes.” But if the attorneys asked if he had killed a man in 1985, he could have said, “no” and still been forthright, because he was not the man who fired the shots, according to newspaper accounts of the crime. 
Sauter sees the issue of Baudendistel’s communication with the district attorney as a gray area. But if Baudendistel had committed the murder and had sealed his juvenile records, she says, he could make the argument that under the law the case never happened, relieving him of the obligation to reveal his involvement in the crime. Considering all the possible situations involving what Baudendistel wrote on his applications or said to the district attorney’s office, Sauter thinks it’s unlikely his credibility is open for attack. 
The defense motion also claims that a murder conviction can be used to discredit investigator Baudendistel’s report and any future testimony. But, Pacheco thinks that murder is less relevant for this case than a conviction of fraud or perjury would be. Sauter goes further, suggesting that if the case went to trial, a judge probably wouldn’t allow the defense to tell a jury about the alleged murder, because it isn’t relevant to the case and could unfairly prejudice the jury. 
The legal issues raised by the defense motion could get resolved on Sept. 5, when Harran will appear again in court for arraignment.
I am not a lawyer, so I can't really comment intelligently on any of it. More thoughts later (tomorrow or Friday), but I wanted people to know that this excellent summary and analysis is out there. 

9 comments:

  1. I'm (also) not a lawyer, but I'd have thought it was possible that the defence is using this to try to persuade the prosecutors to offer Harran a better plea bargain. As things stand the prosecution could lose the whole case if the Baudendistel complaint is upheld - perhaps the defence is gambling that the prosecution won't want to gamble on that so would rather settle the case before this ever gets to a court.

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  2. I agree with anon above that the defense is probably using Baudendistel to finagle a plea agreement. I think it would be fascinating to litigate this, though, to determine what exactly a "sealed record" means. I'm still fairly confused, though. Are there facts uncovered by Baudendistel that are in doubt? What would destroying Baudendistel's credibility do about the fact that Sheri Sangji handled the tBuLi in an unsafe manner? I doubt anyone disputes this.

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  3. Another potentially interesting point is mentioned in the defense motion (http://cen.acs.org/content/dam/cen/static/pdfs/Article_Assets/90/Harran_Defense_Motion.pdf)

    Footnote 21 (Page 22):

    "Although an issue for a different court on another day, it also raises serious questions concerning any and all prosecution(s) brought solely or primarily on the basis of a report filed by Investigator Baudendistel."

    I've no idea what the number of prosecutions would be - it may well be zero - but if Harran's defence was successful it might (I presume) lead to plenty of other people trying to overturn convictions.

    Not sure if that would make the prosecution more or less likely to want to take this issue before a court. I guess that the only way to get it to go away completely would be a court case but the consequences of them losing could be pretty serious. If they accept a plea bargain then it would still leave the door open for others to challenge this point in court.

    I'm still not a lawyer though....

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  4. It's a classic Chewbacca Defense, legally speaking Harran was in a difficult place to defend to a jury so you shift the focus of the trial to a topic you can win and that the jury will care about. The investigator is a possible murderer and therefore you can't trust what he says, so Harran must be innocent or so the defense will argue. Since the line of questioning goes directly to witness credibility the trial judge may realistically rule the probative value will outweigh the prejudicial effects. At the very least I think it'd give the defense a grounds for appeal if not allowed at trial. It's really the best strategy the legal team could have hoped for as it's hard to argue the facts of the case and win. The only alternative would be blaming the victim which is really hard when the victim is an innocent young girl who burned to death.

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  5. I think that the defense motion is worth reading in full. At least I found it fascinating and I wish I understood law better. For example I previously thought that the motion is about the CalOSHA job application and it was never clear to me what questions were asked there. But if a firearms permit (http://www.bsis.ca.gov/forms_pubs/fireperm.pdf) comes into play it becomes somewhat easier to understand, since now I can see that the application specifically states that the "Convictions dismissed under Penal Code section 1203.4 MUST also be disclosed". Here's where I'd like to hear whether section 1203.4 (http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=01001-02000&file=1191-1210.5) which outlines the procedure for dismissing convictions was the law used to dismiss Baudendistel's murder conviction. Ah, I'll be waiting for the next stage!

    Oh, by the way - scholarship in Sangji’s name, why is it in law? Pandering to the prosecution?

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    1. Ms. Sangji was slated to start law school, fall of 2009. She wanted to be an environmental lawyer, and she was admitted to Boalt, apparently her dream school.

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    2. The California law that describes sealing juvenile criminal records is Welfare and Institutions code section 781: http://www.dmv.ca.gov/pubs/vctop/appndxa/welfinst/welin781.htm. Here is the key language about what sealing the records mean: "Once the court has ordered the person’s records sealed, the proceedings in the case shall be deemed never to have occurred, and the person may properly reply accordingly to any inquiry about the events..."

      Also the language in the fire arms permit brings up another technical legal issue: People tried as juveniles don't receive convictions. In the juvenile system, the equivalent is called an adjudication. So, according to some juvenile law experts I talked to, if you go through the juvenile system, you can answer "no," to any question asking if you have prior criminal convictions.

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    3. CJ, what's your basis for the "dream school" assertion?

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    4. A 2009 L.A. Times article:

      "A day before her funeral in Toronto, her family learned that she had been accepted to UC Berkeley's Boalt Hall School of Law.

      "It was her dream school," Naveen said."

      http://articles.latimes.com/2009/mar/01/local/me-uclaburn1/3

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