The tus­sle over bail: Can no­to­ri­ety of a crime war­rant in­def­i­nite con­fine­ment?

The Mercury News Weekend - - LOCAL NEWS - By Robert Sa­longa rsa­longa@ba­yare­anews­

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 pub-

— Micah Al­li­son “We don’t have the money to pay for bail. My­hus­band should be given the op­por­tu­nity to fight this out­side.”

lic 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 $1.08mil­lion — 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 elec­tron­ic­mon­i­tor­ing 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 140mile 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 f lee. 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 al­ter- na­tives, 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.”


Micah Al­li­son, wife of Ghost Ship fire de­fen­dant Der­ick Al­mena, ar­gued for her hus­band’s re­lease be­cause they can­not af­ford bail.


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