VIDEO: Micah Allison, wife of Derick Almena, and his attorney Tony Serra want judge to release Derick from jail
OAKLAND — A landmark state court ruling that orders judges to consider jail alternatives for criminal defendants too poor to afford bail gets one of its stiffest tests Friday when the men blamed for the notorious 2016 Ghost Ship fire make a plea for freedom as they head toward trial.
A judge will hear defense attorneys’ motions to dismiss the case against Derick Almena and Max Harris and to keep them from being held in jail during the trial, which is scheduled to begin July 16.
The three-dozen involuntary manslaughter counts against Almena and Harris present an unusually high-profile test for the First District Court of Appeal’s Humphrey decision, which in January ordered state judges to move away from rigid bail practices and lean on alternatives like electronic monitoring for defendants unlikely to skip out on court or pose a public danger.
Fueled by the idea that people should not be incarcerated simply because they cannot afford bail — especially in a state where prisons and jails are filled to capacity — public defenders and defense attorneys in courtrooms throughout the state are regularly citing the Humphrey decision when arguing that their clients should be kept out of custody.
But can notoriety alone warrant indefinite confinement?
The two Ghost Ship defendants are not considered public safety risks, given that their alleged crimes involve gross negligence and recklessness as opposed to physical violence.
“These guys are no danger to the public. Their crimes are so situational, they’re not at risk for finding a situation where they could be negligent and cause a fire,” said Robert Weisberg, law professor and co-director of the Stanford Criminal Justice Center. “The real action is on failure to appear. The only logic (behind) bail is to find a sweet spot between two things: What the guy can afford to provide, and what we are sure he can’t afford to lose.”
Almena’s attorney Tony Serra, an iconoclastic criminal-defense attorney famous for taking cases with long odds, said the $750,000 bail for Almena and Harris — which technically has already been lowered, from $1.08 million — is “a pre-conviction penalty” driven by a political desire to have a tidy villain for the Ghost Ship tragedy.
On April 20, a judge refused to alter Almena’s bail on the grounds that the severity of the charges against him inherently make him a flight risk. The judge rejected Serra’s proposals to arrange electronic monitoring for Almena at his family’s current home in Lake County, where Micah Allison, Almena’s wife who helped create the warehouse art space, and their three children relocated after the fire.
“My client is indigent, and therefore he does fit under the (Humphrey) case, from my perspective, squarely,” Serra said. “He’s perfectly amenable to anything they want. Why does he have to sit in there and languish?”
Both the judge and prosecutors asserted that Lake County is just too far away to reliably monitor Almena and ensure he shows up to court. In fact, they deemed the family’s lack of local ties and property made the 140-mile distance a “head start” if he decided to flee court supervision.
Harris has a more promising outlook; a judge did not rule on his bail motion back in April, and was set to revisit it Friday. Harris’ cause has been helped by an offer from a friend to give him a local place to live during a trial, an arrangement being vetted by prosecutors. His attorney could not be reached for comment.
The Alameda County District Attorney’s Office also did not respond to requests for comment for this story.
Weisberg said the severity of an alleged crime is fair game for bail consideration, but like Serra, questioned the actual likelihood of Almena adopting life as a fugitive.
“Of course it can be a factor in the judge’s calculus, because just imagine somebody saying, ‘I’d rather lose money and be a fugitive forever than go to prison,’ ” he said. “But the degree to which that matters is hugely exaggerated. Most people don’t flee, because they don’t have the resources to flee. Where are they going to go? Especially in the case of a notorious crime, where are you going to hide?”
In arguing for Almena’s release, Serra essentially restates his defense case: Guilt cannot be proven since a definitive cause for the fire remains vague, and because fire debris evidence was destroyed; landlord Chor Ng and her children, Kai and Eva, are to blame for the building’s neglect; and that city officials’ numerous visits to the Ghost Ship, with no significant consequence, constituted tacit approval of the warehouse’s setup and living arrangements.
Serra is also making a broader ethical argument that having to fight the case from jail, when there are reasonable bail alternatives, determines whether someone gets a fair trial.
“When a person comes in from the street, he’s coming mostly in the bosom of his loved ones, they’re there in court, and the jury sees the accused with his family. He walks in, he feels healthy, he is in civilian clothing that fits him, he doesn’t seem in any form counterfeit,” Serra said. “When you’re in, it’s just the opposite, you look down, you’re depressed, you’re anxiety ridden. A jury sees that, and what they think they see, is the demeanor of someone who is guilty, but what they really see is the demeanor of someone who is depressed.”
David Ball, an associate professor at the Santa Clara University School of Law, agreed, citing prevailing research that shows when defendants are out of custody they can mount a more effective defense.
“It’s extremely difficult to coordinate your defense from inside jail,” Ball said. “You get much worse outcomes if they’re in. They do much better when they’re out.”
Micah Allison reiterated that her husband is not a violent offender and said that there is no chance that her family would leave the area or skip the trial.
“We don’t have the money to pay for bail. My husband should be given the opportunity to fight this outside, he should be given the opportunity to be with his children, to prepare them for whatever it is that’s coming,” she said. “That’s everyone’s Constitutional right.”
Prosecutors haven’t been swayed, and in their arguments against Almena’s release, cite Allison as partly responsible, if not criminally so, for the fire.
Serra said he will consider appealing the bail decision to a higher court if he can’t get the case dismissed outright Friday, which even he admits is, like many aspects of the case, a long shot.
“I have to be pragmatic and realistic,” he said. “I think we’re going to trial on July 16.”
Staff writer Angela Ruggiero contributed to this report.
