Judge rejects attempt to dismiss Ghost Ship criminal case, despite defense claims fire was arson

Judge Trina Thompson threw out a motion Friday attempting to get the criminal cases against former Oakland Ghost Ship warehouse master-tenant Derick Almena and creative director Max Harris dismissed.

Defense attorneys argued critical evidence was mishandled or destroyed and the Alameda County District Attorney’s Office acted recklessly and in bad faith. However, Judge Thompson said the identifiable and material evidence didn’t reach the level to exonerate Almena and Harris, whom are both facing 36 counts of involuntary manslaughter for their role in the Ghost Ship warehouse fire that killed three dozen people in December 2016.

A witness named Darold Leite who lived at the Ghost Ship years before the fire testified Friday that most of the property was bulldozed following the fire. He claimed to have learned some contents were transported to another site and dumped in a debris field, where he went to retrieve his personal items and some of Almena’s, which he returned to him. The witness also claimed he saw looters at the site.

Prosecutors maintain the investigation into the fire was meticulously done and Alcohol, Tobacco and Firearms agents sifted through the warehouse unloading critical evidence in 5-gallon buckets. The district attorney claimed the debris field was made up of items that were not important to the actual fire investigation. The sites of importance were taped off and secured with a guard.

A second witness, Donald Roe, a fire investigator who was hired as a consultant by the attorneys representing the victims’ families in the civil case was not allowed to testify. Civil attorneys challenged the subpoena claiming it was attorney work product to which the judge agreed. The hired investigator went inside the Ghost Ship warehouse months after the fire and authored a report. Almena’s attorney Tony Serra explained in court that Roe was unable to eliminate arson and expressed that electrical items were missing and could potentially be the key source to understanding what happened. To date, no cause has ever been determined by any agency or investigator.

Curtis Briggs, attorney for Max Harris, upset the district attorney when he suggested the fire was arson, claiming signs show the fire was consistent with Molotov cocktails and accelerants, but prosecutors failed to disclose arson evidence that could exonerate both Harris and Almena. Briggs went on to argue the prosecution let evidentiary items go untested and unheard potentially depriving the two men of a fair trial.

Counsel for the people came back explaining it is “difficult to respond when you start making things up” and pointed to the 12,000 pages of documents and 100 hours of audio and video entered into evidence. Prosecutor Autrey James said if arson was part of the evidence then the two defendants wouldn’t be facing involuntary manslaughter charges, they’d be facing murder charges instead.

With the judge rejecting the motion to dismiss the case, attorneys are doing last-minute preparations prior to trial. The evidence portion of the trial is estimated to take between three and four and a half months. Jury selection is scheduled to start in April. Both defendants will be back in court on April 2 at 9 a.m. dressed in civilian clothes for another hearing to iron out any final motions.