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A forensic pathologist set an emotional bar to open Ghost Ship trial testimony Tuesday, before three witnesses called to testify on behalf for the prosecution each made statements that seemed to backfire in favor of the defense.

As prosecutors continued to work through their witness list, their mixed results illustrated how convoluted the facts in this case are, and how unpredictable this trial has been — and could be.

Casey Bates and Autrey James, arguing for the District Attorney’s Office, pulled four witnesses to the stand on the second day of testimony in the involuntary manslaughter trial of Derick Almena, 49, and creative director Max Harris, 29, for the fire that killed 36 people on the night of of Dec. 2, 2016.

Tuesday’s witnesses were:

  • Thomas Rogers, a seasoned forensic pathologist and physician who examined nine of the 36 victims;
  • Ryan O’Keefe, who volunteered to work the show at the Ghost Ship the night of the fire;
  • Rodney Griffin, a once close friend to defendant Derick Almena and experienced tradesman who “evaluated” the warehouse for alterations; and
  • Cesar Avila, an Oakland fire code inspection supervisor until 2017.

Statements made by Rogers were challenging for family and friends seated in the courtroom to hear, as they reached over to console one another throughout testimony. One by one, Bates asked the doctor to confirm cause of death for the victims he examined. Rogers determined each of the nine died of smoke inhalation, had “black material like smoke and soot” lining their lungs and airways and carbon monoxide levels ranging from 40 to 56 percent.

The remaining three witnesses would prove more controversial.

From his vantage point in a ticket booth near the front door, where said he he knew 90 percent of the people who came through to see the show, Ryan O’Keefe described seeing a “glow” and then sudden fire that spread up and then across the ceiling.

“It looked like an explosion – that’s how fast it happened.”

O’Keefe added:

“The lights smashed out in succession … it sounded like the lightbulbs were bursting.”

O’Keefe had trouble remembering if he could still hear musicians upstairs testing speakers as lights were shutting down with a “popping noise” and smoke filled the bottom floor:

“The smoke muffled the sound. I don’t know how to describe it.”

O’Keefe told the court he yelled “Fire” as loudly as possible, quickly became overwhelmed by the smoke he described as “extremely viscous…with a sparkle to it, like graphite” and didn’t have time to grab his belongings from a table five feet away.

He said the smoke made it impossible to see up the staircase at the point he ran for the front door, but did testify that prior to that, he did not see anyone standing at the bottom of the staircase telling people not to come down, which refuted claims made by the defense.

Once outside, after taking a few seconds to catch his breath, he and others went back and opened the door as John Axtell and at least another three people made it out. He didn’t recall seeing anyone else escape after that.

A friend, Jon Hrabko, with whom O’Keefe had worked with in the past, asked O’Keefe and others to volunteer time at the show that night, including another man by the name of Billy Dixon, who died in the fire. Though defendant Max Harris worked alongside O’Keefe at the ticket booth, it seemed to him that Hrabko, who did not live at the Ghost Ship, was curating the event that attracted 50 to 75 people, according to his count. The prosecution has attempted to paint Harris as the event producer and organizer but O’Keefe’s testimony seemed to somewhat rebuke that theory.

The night of Dec. 2, 2016 was the second time O’Keefe visited the Ghost Ship warehouse, having spent Thanksgiving dinner with there with a friend, Almena, his wife Micah Allison, their children and a handful of others just about a week prior to the fire. Both legal teams pressed O’Keefe on his knowledge of the building’s layout based on those two experiences and it was in that vein where O’Keefe contradicted himself.

James questioned the witness about the first floor, which O’Keefe responded to by saying that he during his first visit, he did not really explore the area where most of the residents lived and shared common spaces. However, during cross examination by Almena’s attorney Tony Serra, he responded differently to the same line of questioning, saying he walked through most of the downstairs area with the exception of walking into residents’ individual living units.

O’Keefe added that he felt safe inside the space prior to the fire.

Rodney Griffin took the stand to provide details about an “evaluation” he conducted at the building at Almena’s request. He met Almena, Allison, Nicholas “Nico” Brouchard and Eva Ng at the property to discuss what it would take to add a fire door, a staircase where the conveyor belt system was and electrical work. It was noted by the defense that Ng, the daughter of the property owner, was not only aware of what Almena wanted to do but was interactive in the discussion. Griffin said Almena scoffed at the estimated dollar amounts, specifically the $3,000 for the stairway, and said he would build it for less himself.

The two friends parted ways for what Griffin called differences of opinion but they had been very close prior, living and working together in Oakland and in Santa Cruz.

Griffin said:

“I considered him my brother.”

Six months later, he returned to visit and after seeing what had been done in the warehouse, Griffin claims he told Almena it was a “death trap.” He described the interior as filled with “everything under the rainbow” – pianos, organs, campers, wood, tapestries, speakers and art.

Griffin said:

“There were all arranged in very unique pattern. It made it difficult to get around. It was confusing. You would not know where exits were.”

Although Griffin never re-entered the Ghost Ship warehouse, he did drive by at some point and saw that the exterior of the building had been “firebombed.”

Worrying about an arson attack and having concerns about the building’s safety, Griffin drove directly to Oakland Fire Station No. 13 located a tenth of a mile away from the building. There, he spoke with the fire chief to express concerns and provide details about the interior. He asked them to do something, citing fear especially for Almena’s children who he claimed to love like his own. He said:

“The action that I took, I did not feel (the concerns) would be properly addressed – they kind of brushed it off. They just said there were aware. I told them there were children – they said they were aware.”

The prosecution’s last witness Tuesday did not do much to rebut Griffin’s feelings of being brushed off. Cesar Avila testified that, as a supervisor for Oakland fire code inspectors at the time of the fire, he told Bates his first visit to the Ghost Ship was on the night of Dec. 2, 2016. And, when, tasked with researching the building’s code designation and history, he found no files indicating any inspection had ever been conducted.

Avila will be cross-examined by both defense teams Wednesday morning where he undoubtedly be questioned as to why the Ghost Ship warehouse was never inspected despite how “aware” the department was of the building’s unsafe conditions.

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