By Matthias Gafni and David DeBolt
East Bay Times
OAKLAND, Calif. — In an escalating legal feud over the investigation into the Ghost Ship tragedy, Alameda County prosecutors have tried without success in recent weeks to pry the completed draft report of the deadly fire from the city’s hands.
The District Attorney’s Office has been seeking the critical report for the past month from the Oakland Fire Department and City Attorney’s Office, and legal experts contacted for this story say the city’s delay in handing it over may violate the law.
Emails obtained by this newspaper through a public records request detail the bizarre dispute and the growing frustration of the DA’s Office.
“If the Oakland Fire Department has submitted a report to your office for review, a copy of the unredacted, unedited report must also be submitted to the prosecuting agency for review,” lead Ghost Ship prosecutor David Lim wrote in a Feb. 28 email to Oakland City Attorney Barbara Parker. It was the final email exchange between the two sides.
The city refuses to budge until a final report is completed, said Oakland City Attorney spokesman Alex Katz on Friday.
“The report is in draft form, but it is in the final stage of technical review and will be final imminently,” said Katz, adding that there’s no dispute on the fire’s cause.
Lim explained in his emails the District Attorney Office’s position on how a draft report must be turned over to prosecutors, DA spokeswoman Teresa Drenick said. She declined to comment further.
Former Santa Clara County Superior Court Judge LaDoris Cordell, like Lim, cited Brady vs. Maryland, the U.S. Supreme Court case on due process that requires prosecutors to share all evidence with the defense, as to why Oakland officials must share the draft report.
“In my view, the fire department and the city attorney must turn over everything they have (unredacted, unedited) re: the investigation into the Ghost Ship fire,” Cordell wrote in an email. “The failure to do so could result in placing the DA in violation of Brady.”
Criminal defense attorney Daniel Horowitz said the draft status of the report makes no difference, and the city is suppressing evidence.
“If there is evidence in the case, when the DA wants to see it, they can see it,” Horowitz said.
On Dec. 2, 36 people died in the Fruitvale District warehouse while attending a music party. Days after the city’s deadliest blaze was extinguished, the district attorney launched a criminal probe into the fire. More than three months later, no final report or cause of the fire has been announced by the Oakland Fire Department to the public.
Retiring fire Chief Teresa Deloach Reed, who has been out on extended leave, refused to discuss the matter when reached Friday by phone.
“As you know, I have been off work,” she said before hanging up on a reporter. The chief announced her retirement earlier this week effective May 5.
The difficulties between the parties began in late February.
On Feb. 24, DA inspector Cinda Stoddard emailed Oakland Assistant Fire Marshal Maria Sabatini asking for the timing of the fire report, according to the emails obtained by this newspaper .
Sabatini responded three days later: “Wish I could say … the draft is (with) the City Attorney’s Office now. They are probably going to be communicating with your office now about it, instead of me … sorry.”
Lim learned of the draft and began pushing to review a copy.
On Feb. 27, Lim told his colleagues that Chief Assistant City Attorney Doryanna Moreno was checking who had the report in her office and getting prosecutors a copy. Lim emailed Moreno minutes later to make the fire report request official.
“If we could get a copy from the City Attorney by end of business today, that would be great,” Lim wrote.
The report was never sent.
On Feb. 28, a frustrated Lim emailed Moreno and copied City Attorney Barbara Parker and District Attorney Nancy O’Malley.
“(On Feb. 27) it came to our attention that a draft or final version of the report was sent to the Oakland City Attorney’s Office for review,” Lim wrote, adding that in addition to his formal email request, he left two voicemails but had not received any response.
He reiterated that his office was requesting an unredacted, unedited copy of the report “immediately,” along with copies of investigative notes, photos, statements and all other evidence. He explained that his office, while conducting a criminal investigation, must review all evidence and that the Oakland Fire Department, as the lead agency determining the Ghost Ship fire cause, is “part of the prosecution team.”
He cited the constitutional requirements under Brady and asked a second time for the items by the close of business. An hour later, Moreno emailed Lim and said she was still looking into getting the report.
Lim wrote back the same day, discouraged by the lack of response.
“If there are timing issues in getting the report to us by the end of today, please call me so we can discuss the issue. If there are any issues with providing the report to us, please call me so we can discuss the issue. The key is: Please call me so we can discuss the issue,” he wrote.
Katz said a city attorney representative left a final voicemail for Lim on Feb. 28 to explain its position, but it was not returned and that was the last correspondence between the two agencies on the topic. Lim could not be reached for comment Friday.
Horowitz questioned what the City Attorney’s Office was doing with the draft for a month and speculated the city was likely withholding the draft report to “clean it up.”
“They’re afraid of being sued,” Horowitz said. “There’s probably stuff in the report they want to clean up.”
Families of victims have already filed claims against the city and other defendants, with more expected.
Horowitz added that the city’s reluctance to turn over the report could jeopardize any potential criminal case as the defense will likely ask jurors: Why did the city delay in sharing the draft and what exactly was changed for the final report?
Former California State Fire Marshal James McMullin said it wouldn’t be unusual for a fire department to seek the counsel of city lawyers in finishing a report on a blaze with such a large loss of life.
The department “wants to make sure it is operating within its legal rights,” he said. “There is a standard of care. It seems slow coming out because of what they are into.”
Still, he said, it is strange to have an absent fire chief during such a critical time as finalizing a report on 36 deaths.
“It’s kind of abnormal to have a lack of leadership,” he said.
A spokeswoman for the ATF, which assisted the Oakland Fire Department in the report, said Friday that the federal agency has completed its role with the probe.
Copyright 2017 the Contra Costa Times