Despite the defense's strong objections, including an allegation that it smacks of Nazi Germany and fascism, a judge on Friday granted the prosecution's request for a gag order in the trial two men for the 2016 Ghost Ship fire in Oakland that killed 36 people.
Alameda County Superior Court Judge Trina Thompson said she is issuing the so-called "protective order" in the trial of Ghost Ship master tenant Derick Almena and creative director Max Harris because the case "has received community-wide notoriety" and she's concerned that if potential jurors are exposed to irrelevant information it could endanger their right to a fair trial.
Almena, 48, and Harris, 28, are charged with 36 counts of involuntary manslaughter for the deadly fire during a music party at the warehouse at 1309 31st Ave. on Dec. 2, 2016.
The order applies to prosecutors, Almena and Harris and their attorneys and all the witnesses in the case.
Thompson said the order will only last until jurors and alternates for the trial, which is scheduled to begin on April 2, are sworn in.
She also said she could rescind or modify the order at any time if that seems to be appropriate.
James said the gag order is necessary to prevent the defense from tainting the pool of potential jurors for the trial, which is scheduled to begin on April 2.
James said Almena himself has played a part in trying to influence jurors through his frequent interviews with the news media and by telling others "to get his story out because he's hopeful this information will reach eventual jurors."
James said, "We should try to pick a jury that's free of bias but that will be completely impossible if the defense talks to the media all the time."
After James spoke about his request for a gag order, Harris' attorney Curtis Briggs told Thompson, "I have never heard something more terrifying in my career or in my life" and alleged that the District Attorney's Office "has become completely unhinged."
Briggs said he should be allowed to speak to the media about the case because "my client (Harris) is the underdog and I'm his advocate."
Briggs said Harris "is fighting for his life" and "I have an obligation to talk to the press."
Harris said the prosecution's bid for a gag order "is a renewal of Nazi Germany and fascism."
Almena's lawyer Tony Serra said he also should be allowed to talk to the media because "we have an uphill battle in contesting the allegations."
But Thompson said she is granting the gag order because, "We have to harness this (all the publicity the case has received) so that we get a fair and balanced jury."
The gag order doesn't prevent the news media for covering hearings in the case or reporting on them.
Thompson also heard arguments on the defense's request to dismiss the charges against Almena and Harris on the grounds that potentially exonerating evidence was destroyed, lost or altered under the watch of the Alameda County District Attorney's Office.
Briggs alleged that former Oakland Fire Marshal Maria Sabatini and other investigators failed to preserve potentially exculpatory evidence because "they understood the liability the city had" by failing to crack down on safety violations at the warehouse.
Thompson didn't rule on that motion on Friday but said she will hold a hearing on Feb. 22 to determine if she should hold an evidentiary hearing on that issue at a later date.
Thompson also scheduled a hearing on Feb. 11 on a defense motion asking that the building's owners and Oakland firefighters and police officers be arrested and prosecuted along with Almena and Harris.