#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.