Ghost Ship Jury Unable to Reach Verdict for Derick Almena, Acquits Max Harris

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A 'not guilty' verdict is read for Ghost Ship co-defendant Max Harris in Alameda County Superior Court on Thursday. Harris (second from left) and his attorneys react as Derick Almena (second from right) and his attorneys look on. (Court illustration by Vicki Behringer)

The criminal trial of Derick Almena and Max Harris, each charged with 36 counts of involuntary manslaughter in the 2016 Oakland Ghost Ship warehouse fire, ended in a mixed decision on Thursday.

The jury was unable to reach a unanimous verdict for Almena, the Ghost Ship's master tenant, with 10 jurors finding him guilty and two jurors finding him not guilty. A hearing on a possible retrial for Almena is scheduled for Oct. 4, according to the Alameda County District Attorney's Office and Almena's defense attorneys.

Harris, who has been described as the Ghost Ship's creative director and second-in-command, was acquitted of all charges. Harris was released from Santa Rita Jail Thursday night, according to the Alameda County Sheriff's Office.

The announcement of the deadlock and acquittal came after more than five months of arguments, examination, cross-examination, dismissed jurors and one restart to deliberations.

"We've always felt that Max was innocent, we've always felt that it was a clear case. ... It's scary to have an innocent client that's been in jail for two years," said Curtis Briggs, lead attorney for Harris.

"I'm relieved, but my thoughts are with the families right now. I don't want to lose sight, and Max Harris doesn't want to lose sight of the fact that the families are suffering, families who have suffered a great loss. Regardless of our opinions on the case, we acknowledge that it's very difficult."

Referencing the outcome for Almena, Briggs added, "Until they put the owners of the warehouse on trial, they will continue to get a mistrial."

Tony Serra, who represents Almena, said the mistrial today was not a victory for his client.

"I'm pained. I'm anguished. I'm frustrated, but God damn it, we will win next time," referring to a possible retrial for Almena.

Serra said Almena turned to him following the verdict and asked if Harris could be a defense witness in a future retrial.

"The families are disappointed in the verdicts today, the results of today," said Mary Alexander, lead attorney for families of Ghost Ship fire victims in an upcoming, separate civil case.

"We look forward to proving the case against the city of Oakland. The city knew, the police knew, the firemen knew that this place had people in it, that they were using it like a cabaret."

At a courthouse press conference, Alameda County Chief Assistant District Attorney Kevin Dunleavy said his office remains focused on victims' families.

"Since the beginning of this case, our hearts have been with the families of the 36 victims that died in this unspeakable tragedy," he said. "That still remains our focus, and that will be our focus going forward. The verdict is in against Max Harris. We are going to evaluate our prosecution as it relates to Derick Almena."

Several relatives of victims of the 2016 fire expressed shock at the decisions of the jury.

Mary Vega, who lost her 22-year-old son Alex in the fire, said both Harris and Almena should have been found guilty.

"Everybody's guilty. I lost my son cause of this. And this is what happens? I am not happy about this," Vega said.

In a statement, District Attorney Nancy O’Malley expressed disappointment.

"While I am disappointed in today’s outcome, I must respect the thoroughness and thoughtfulness of each juror in this matter, as well as the outcome of their deliberations," she said.

Firefighters work outside the Ghost Ship warehouse on the morning of Dec. 3, 2016 in Oakland, the day after a fire there claimed the lives of 36 people.
Firefighters work outside the Ghost Ship warehouse on the morning of Dec. 3, 2016 in Oakland, the day after a fire there claimed the lives of 36 people. (Elijah Nouvelage/Getty Images)

The Ghost Ship Criminal Trial

The East Oakland warehouse known as the Ghost Ship caught fire just after 11 p.m. on Dec. 2, 2016, the night of an electronic music party, killing 35 concertgoers and one tenant. Fire investigators never determined the cause of the conflagration.

The prosecution had argued that the actions of Almena and Harris amounted to criminal negligence. They argued the warehouse was illegally converted into an unsafe living space with complete disregard for safety, violating nine fire codes.

Alameda County Deputy District Attorney Autrey James argued that the victims didn't have enough notice, time or the ability to exit, due to a lack of sprinklers, alarms and adequate exit signage.

Complete Coverage of the Ghost Ship Trial

James also argued that Almena almost immediately violated the terms of the lease he signed in November 2013 by allowing people to live there. The prosecution said major alterations to the Ghost Ship were made without the required building permits and that events were held in the building without clearance from the city of Oakland.

Almena testified that he didn't get any permits for any of the work done in the warehouse and said he thought contractors would get them.

Almena also testified that landlord Eva Ng — daughter of warehouse owner Chor Ng — had asked him to get permits but that he had declined, and that "early on" in the immediate months after signing the lease he had asked the Ngs to obtain the proper permits.

Prosecutors described the interior of the building as a maze stuffed from floor to ceiling with highly flammable materials, including wood, tapestries, statues, furniture and other improvised building components, such as pianos and windows used to delineate hallways and living spaces.

The prosecution also argued Harris acted as a kind of second-in-command, collecting rents, issuing eviction notices and helping to organize events like the one on Dec. 2.

During closing arguments, defense attorneys pointed to testimony by many former tenants and visitors who said they felt the Ghost Ship was safe.

The defense also argued that personnel from several agencies, including Oakland's police and fire departments, as well as Child Protective Services, had passed through the warehouse dozens of times in the years leading up to the fire and had never flagged the building, never red-tagged it or issued any eviction notices.

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Both Curtis Briggs, who represents Harris, and Tony Serra, who represents Almena, also argued that testimony by at least seven witnesses pointed to arson as the cause of the deadly conflagration and that Almena and Harris couldn't have done anything to prevent it. James said in his rebuttal to the defense's closing arguments that there was no evidence of arson and called testimony by a key witness "unbelievable."

Briggs also said Harris' duties at the warehouse were janitorial and not managerial. Harris testified he had only used terms like creative or executive director ironically, and said the Ghost Ship was a nonhierarchical collective. Briggs argued that his client did not have any role in signing the lease and had not even lived in the warehouse when major modifications to the building were made, including the installation of a set of stairs and a side fire exit, both of which Almena neglected to get permits for.

The defense also said in closing arguments that their clients were scapegoats for the city of Oakland, which Serra says failed to enforce its own building and safety regulations. The city is one of several defendants in a civil lawsuit arising from the fire.

Events Leading Up to the Criminal Trial

Almena and Harris were arrested on June 5, 2017, and each charged with 36 counts of involuntary manslaughter.

Both pleaded no contest to the charges on July 3, 2018, in Alameda County Superior Court, with Almena agreeing to a nine-year jail sentence with four years of supervised release. Harris agreed to a six-year jail sentence with four years of supervised release.

But on Aug. 10, 2018, Alameda County Superior Court Judge James Cramer rejected the pleas, a decision that put the case on the path to this year's trial.

In explaining his decision, Cramer said Almena didn't acknowledge responsibility or show remorse for the fatal blaze. He pointed to a 30-page letter to probation officers in which the judge said Almena cast himself as a "victim and a witness."

Cramer said the plea deal would have been fair for Harris, but in rejecting it for one defendant, he was bound by the law to reject it for both.

The judge's decision also came a day after more than two dozen mothers, brothers, friends and other family members of the 36 victims told stories of their dead loved ones and criticized the plea deal reportedly struck to spare them the pain of a criminal trial.

After Cramer rejected the deal, Almena said, "If I could give each one of you my life, if I could give you my children's lives, I would."

Prosecutor Autrey James told the judge after Almena's statement that the victims' families were offended by many of the things he had said.

The Civil Trial

Victims' families have alleged in lawsuits that several Oakland city agencies failed in their duty to inspect the Ghost Ship warehouse building or follow up on complaints about the premises.

The lawsuits also claim PG&E failed to properly monitor, inspect and repair electrical equipment that provided power to the building. Warehouse owner Chor Ng is also a defendant in the civil case.

Mary Alexander, the lead counsel in the civil case, said on July 15 that the trial is scheduled to begin next May.

KQED reporters Jeremy Siegel and Annika Cline contributed to this post.
This post has been updated.