OAKLAND, Calif. (CN) – Alameda County prosecutors on Friday outmaneuvered lawyers for two men facing involuntary manslaughter charges stemming from the 2016 Ghost Ship warehouse fire, convincing a state judge to bar the defendants and their attorneys from speaking with the press just before delivering controversial arguments apparently aimed at swaying potential jurors.
Alameda County Superior Court Judge Trina Thompson issued the requested gag order prohibiting defendants Derick Almena and Max Harris and all attorneys working on the case from talking to reporters until the jury has been sworn in for the April 2 trial, citing extensive media coverage and concerns about a fair trial.
"That is my sole concern, whether [the defendants] can get a fair, balanced venire," Thompson said in an Oakland hearing, referring to the pool of potential jurors. "My concern is whether 12 impartial people from this community can hear this case."
The Alameda County district attorney moved for the gag order last week, citing in particular Almena's stated desire to influence via the media potential jurors deciding whether he is responsible for the deaths of 36 concertgoers in a fire at his Ghost Ship artists' collective. Prosecutors also cited an unidentified media interview given by Harris – presumably for a December 2018 New York Times Magazine cover story, which portrayed him as a scapegoat for the fire – and the defense team's proclivity for holding emotionally charged impromptu press briefings after each hearing.
In the nearly two years of press briefings, defense attorneys Curtis Briggs and Tony Serra have sought to shift blame for the Fruitvale-neighborhood fire from their clients to the warehouse owner and city employees. Police and fire department employees were called repeatedly to the Ghost Ship in the years preceding the December 2016 blaze and knew people lived there, the attorneys said, yet refused to inspect and shut it down for being unsafe.
According to prosecutors, Almena and Harris turned the Ghost Ship into a "death trap" by allowing people to live and throw events there without bringing it up to code. They say Almena, the building's master tenant, refused to install basic fire-safety measures like sprinklers and emergency exits, did unlicensed electrical work, parked RVs inside on the first floor, installed a ramshackle, homemade staircase and stuffed the building full of flammable materials.
As "second in command," prosecutors say Harris blocked off one of only two stairwells in preparation for the party, trapping people on the building's second floor. Investigators say the fire started on the first floor.
On Friday, Deputy District Attorney Autrey James said the last straw was a December 2018 press release issued by Briggs and Serra announcing plans to ask the court to arrest warehouse owner Chor Ng and various Oakland fire and police employees and to try them alongside Almena and Harris.
"I literally got the notice of motion by press release. It's unprecedented," James told Thompson. "It was aimed at the press. It was aimed at making whatever noise they wanted to make."
The request, called a motion to compel citizens' arrest, is highly unusual – Thompson said Friday only one or two other U.S. jurisdictions have ever entertained such a motion – and almost certainly will be denied. But the novelty of the request momentarily shifted the narrative around the Ghost Ship fire from one of careless "squatters" to an official conspiracy to cover for Oakland's top brass by scapegoating Almena and Harris.
Briggs pressed this argument Friday.
"Her [sic] and the bureaucracy immediately understood the liability the city of Oakland had," Briggs said of assistant fire marshal Maria Sabatini, whom he accused of destroying exculpatory evidence from the fire scene. Sabatini oversaw investigation and is named in the motion for citizens' arrest.
"Imagine the millions of dollars at their disposal, and the investigators didn't pick up a single ember and put it in a baggie to send it to a lab," he said. "Could she be that incompetent? I hope not. But this is intentional."
Based on these arguments, Thompson said she may hold an evidentiary hearing regarding the purported destruction of evidence, pending the filing of additional information by the defense.
But Briggs' and Serra’s high-voltage arguments opposing the gag order failed to sway her.
"This is reminiscent of Nazi Germany, this is fascism, this is 'Amerika' with a 'K,'" Briggs told her with a raised voice.
"My heart is pounding right now. I've never heard something more terrible in my life under the flag of the United States of America," he said of the gag order motion. "I'm alarmed, I'm disgusted, I'm frightened. Real frightened."
Briggs insisted he has an "obligation" to set the record straight on Harris. Emulating President Donald Trump, he accused local reporters of publishing biased statements against Harris issued by the district attorney as part of its media "machinery."
"They have been benefitting from the press for years," Briggs said. Nevertheless, talking to the press "is the only thing [Harris] has to potentially find 1 out of 100 people who haven't heard the BS narrative spread against my client."
Serra argued next on Almena's behalf.
"My client wasn't charged for six months. In that six months, he was vilified, he was defamed in every possible way. The mayor spoke out and called him a 'squatter.' He was accused of indifference," Serra said. "When we took over the case, he was dead; he had no prospect of any type of win."
Almena was roundly criticized for his perceived indifference toward fire victims in public statements he made after the blaze.
"Confirmed. Everything I worked so hard for is gone," he wrote on Facebook.
“I didn't do anything ever in my life that would lead me up to this moment. I'm an honorable man. I'm a proud man," he said on the Today show.
But it was James' argument about Almena's most recent media efforts that appeared to convince Thompson on Friday.
"Fourteen years I've been a prosecutor and I've never seen such a thing. It's incredible that the defendant, knowing we're monitoring his mail account" would write that, James said. "That right there shows clear and present danger – the effort to persuade potential jurors."
The defense team postponed arguments on their centerpiece citizens' arrest motion upon issuance of the gag order. Those arguments are now set for Feb. 11.
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