OAKLAND (CBS SF) -- A lawyer for Ghost Ship warehouse creative director Max Harris aggressively cross-examined a former top Oakland Fire Department official on Wednesday about her testimony that investigators didn't find any evidence of explosive materials at a deadly fire there in 2016.
The presence of explosive materials is a key issue in the trial of Harris, 29, and Ghost Ship master tenant Derick Almena, 49, because their attorneys have said that the fire during a music party at the artists' collective in the 1300 block of 31st Avenue the night of Dec. 2, 2016, was an act of arson and witnesses heard sounds of glass breaking, such as from Molotov cocktails.
Defense lawyers say Almena and Harris, who face 36 counts of involuntary manslaughter, one count for each of the 36 people who died in the blaze, shouldn't be held criminally liable for an act of arson they couldn't have prevented.
But Alameda County prosecutors allege that Almena and Harris are criminally responsible for the fire because there was no time and no way for the people at the party to escape since the two-story, 10,000-square-foot warehouse didn't have important safeguards, such as fire extinguishers, smoke alarms and exit signs.
They also say Almena and Harris violated the terms of the warehouse's lease by turning it into a living space where up to 25 people stayed and hosting underground music parties.
Former Oakland Acting Assistant Fire Marshal Maria Sabatini, who retired last year, admitted under cross-examination by Andrew Stein, one of three attorneys representing Harris, that she can't eliminate arson as a possible cause of the fire.
Sabatini explained that the reason arson can't be eliminated is that there was so much debris from the blaze that she and other investigators from the federal bureau of Alcohol, Tobacco, Firearms and Explosives and other agencies weren't able to determine its cause.
Sabatini said she and other investigators didn't have any reports from witnesses that there were signs of arson, such as gasoline or other explosives.
But she said, "That doesn't mean we didn't consider it as a source. We had to keep an open mind and look at all possible causes."
In cross-examining Sabatini, Stein repeatedly asked her whether she and other investigators followed standard procedures for investigating deadly fires that could be acts of arson and demanded that she answer his questions "Yes or no."
Sabatini said she followed standard procedures but said she wasn't familiar with some of the documents Stein was referring to when he questioned her.
Alameda County Superior Court Judge Trina Thompson, who is presiding over the trial, sent jurors home early on Wednesday so she could ask Stein to make sure Sabatini has all the documents she needs, such as shift reports and logs, to answer his questions.
Thompson told Stein that many of the questions he asked "are predicated on documents the witness (Sabatini) does not have" and suggested that he use "a more direct method of asking questions."
Thompson also said some of the information Stein is seeking may not be relevant to the theories of criminal negligence that are the key issue in the trial.
Stein said he wants to get more Oakland Fire Department documents about the fire to make sure that Harris gets a fair trial and that if he doesn't get them he will be deprived of "the opportunity to prove she (Sabatini) is lying."
Stein will continue cross-examining Sabatini, who's already been on the witness stand for two days, when the trial continues on Thursday.
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