Prosecutors Will Retry Case of Ghost Ship Defendant Derick Almena

1 min
The facade of the Ghost Ship warehouse in Oakland on June 17, 2019. (Stephanie Lister/KQED)

Alameda County prosecutors will move forward with a retrial in the case of Derick Almena, who is charged with 36 counts of involuntary manslaughter for the deaths of three dozen people in a 2016 fire that burned through a converted Oakland warehouse known as the Ghost Ship.

Judge Trina Thompson set a new trial date for March 30, 2020, which both parties had agreed to, during a Friday hearing in the long-running case that's seen an aborted plea deal and a hung jury on charges against Almena.

Thompson declared a mistrial in the case of Almena, the Ghost Ship's master tenant, on Sept. 5 after the jury deadlocked on a 10-2 vote to convict him.

The jury acquitted co-defendant Max Harris, who had been described as second-in-command and creative director of the Ghost Ship, of all 36 charges.

Tony Serra, Almena's defense lawyer, said he was confident about the upcoming trial.

"Both the prosecution and defense have the same desire," Serra said. "And what is that desire? We want to go to trial. We don't want to negotiate. We don't want to involve ourselves in any kind of plea agreement. We want a trial. Our case is stronger. We're confident."

Serra said he doesn't expect any negotiations before the next trial begins.

"It's the end of it," Serra said. "We will prevail in the next trial."

A defense motion to reduce Almena's bail "significantly" from $750,000 was denied. Brian Getz, who represents Almena, called for bail to be reduced to $50,000.

Getz argued in court his client was not a flight risk because he had no money and he was too recognizable from the high-profile case. He argued that if Almena fled he "would never see his family again." He also argued there was "no intent to hurt anyone" and that "everything he has done is in cooperation with the court."

But Judge Thompson alluded to Almena having not abided by court-ordered rules in the past.

"I can’t ignore the fact that Mr. Almena has had court orders or been placed on supervision of some kind in the past, and didn’t always abide by the rules of the authorities," Thompson said.

She also said that although Almena had a "mild" criminal past, she was also considering that "36 lives were lost, and this case has the most heightened circumstances of any homicide case."

Getz said outside court that it was "unfathomable" his client's bail wasn't reduced.

"I felt that this was a bail motion that had merit because Mr. Almena never intended to hurt anybody," Getz said. "And this is different than the other cases where bail was high but there was intentional, willful, violent conduct on the part of the person who was in jail. I know there are some people who say that Almena is not remorseful and has not shown remorse for what happened. Well, he has. Every single day he thinks about it."

Micah Allison, Almena's wife and mother of their three children, attended the hearing, along with other supporters.

"It's really important for me, just for people to know that there are people all over the world praying for our family, and that they want to see him come home to his children," Allison said to reporters after the hearing. "I'm obviously really sad about this denial of the bail. All Derick wants to do is to be with his kids. That's all he wants. That's all he's ever wanted."

Allison said "the remorse that we feel and that everyone feels is immeasurable."

"We will never be the same. We will never be the same," Allison said. "There is nothing that I can do that can take away what happened. Nothing."

Colleen Dolan, mother of fire victim Chelsea Faith Dolan, was glad Almena was heading back to trial.

"I miss her every day. I miss her every night. I think about the fire every day and every night," Dolan said of her daughter outside court. "And I do want the man responsible to be held accountable."

Dolan said she was glad Almena's bail wasn't reduced because she believes he would flee with his family.

After Almena left court on Friday, Thompson held a hearing for two jurors who she dismissed on Aug. 19 during jury deliberations for improper communications and found both of them to be in contempt of court.

Thompson issued a $500 fine for one of the jurors but said she wouldn't impose it and make her pay it. Thompson told the other juror that she would not impose a fine or order her to serve any jail time.

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The Criminal Trial

Almena and Harris had both faced the same charges, one count for each of the 35 concertgoers and one tenant who died from a fire that began shortly after 11 p.m. on Dec. 2, 2016, during an electronic music party in the warehouse converted into a ramshackle artists' residence and illegal event space.

The prosecution had argued during the previous trial 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. Prosecutors argued the victims didn't have enough notice, time or the ability to exit when the building began to fill with smoke, due to a lack of sprinklers, alarms and adequate exit signage.

Deputy District Attorney Autrey 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.

Warehouse owner Chor Ng, and her son and daughter, Kai and Eva Ng, were not charged. Almena testified that landlord Eva Ng had asked him to get permits for changes to the warehouse 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.

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.

Attorneys for both defendants also argued during the criminal trial the fire may have been intentionally set, presenting testimony from several witnesses who said they saw a group of people starting the deadly blaze. Almena and Harris, their attorneys said, couldn't have done anything to prevent the alleged arson. 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."

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

The trial began on April 30 and jury deliberations began three months later on July 31. On the 10th day of deliberations, three jurors were dismissed for misconduct. Three alternates were rotated into the jury and Thompson told them to begin deliberations anew. The newly formed jury reached their decision on Sept. 5, which was day 6 of deliberations.

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. 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.

Reporting from Bay City News was used in this report.

This post has been updated.

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