Ghost Ship jury deadlocks on Derick Almena verdict; acquits Max Harris

The jury considering allegations against two men connected with the 2016 Ghost Ship fire reached a verdict on Thursday afternoon, acquitting Max Harris, a former tenant and creative director of the Ghost Ship, of 36 counts of involuntary manslaughter. But after the jury deadlocked, Judge Trina Thompson declared a mistrial regarding identical charges against Derick Almena, the Ghost Ship’s primary leaseholder, who now faces a possible second trial. 

The fire broke out on December 2, 2016, at a party at the artists’ collective, which was based in a warehouse in the Fruitvale neighborhood in East Oakland. Thirty-six people died of smoke inhalation after being trapped inside on the second floor, as the fire tore through the building. It was one of the deadliest building fires in the last 50 years. 

In a statement released Thursday, Alameda County District Attorney Nancy O’Malley expressed her disappointment about the outcome of the trial. “From the moment we learned of this heartbreaking tragedy, the District Attorney’s Office has worked tirelessly to bring the defendants to justice,” she wrote in her statement. “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.”

Speaking by phone Friday afternoon, Almena’s attorney, J. Tony Serra, said he had anticipated this outcome for the trial. “Ninety percent of the evidence was against my client,” said Serra. “He’s been so mischaracterized by everyone. So I accepted in my rational mind this was probably not going to be an acquittal, it’s going to be a hung jury.” 

Serra said his client has accepted the verdict. “He had no judgment. No anger. He said, ‘Pass on my congratulations to Harris,'” Serra said.

An attorney for Harris had not been successfully reached for interviews as of press time.

When the trial opened in April, prosecutors from the District Attorney’s Office charged Almena and Harris with 36 counts of involuntary manslaughter each, one for each of the victims. Both men faced the maximum sentence of 39 years in prison. 

Almena, 49, was Ghost Ship’s master leaseholder, who signed a rental agreement in November 2013 with the Ng family, the owners of the former milk-bottling warehouse. According to The East Bay Times, the parties had agreed that the space would be leased by an artists’ collective, housing studios and serving as a space for events and workshops. The building was not zoned for residency.

Max Harris, 29, moved into the Ghost Ship collective in late 2014, according to a 2018 interview with Harris in The New York Times. He later became the space’s creative director, collecting rent and helping Almena run the space in exchange for free housing. The prosecution team referred to him as “second in command.”

During the trial, prosecutors contended that the two men were responsible for creating a dangerous and illegal living situation, and alleged that Almena was responsible for the building’s not-to-code construction work, illegal electrical repairs, and the accumulation of flammable material inside the warehouse such as pianos, tapestries, wooden pallets, and furniture. They also claimed that he was responsible for the building’s lack of proper fire escapes, smoke alarms or sprinklers. 

No official cause of the fire has been determined.

But at trial, attorneys for Harris and Almena contended that the cause of the fire was arson. Harris’ defense team claimed that he was a scapegoat, and that several firefighters and police officers entered the building prior to the fire and knew of the building’s potential hazards. They argued that public records show that city officials had received multiple code enforcement complaints and had visited the warehouse several times before the fire. 

A 2017 investigation by The East Bay Times found evidence that the building’s owners knew of potentially dangerous electrical issues, and that Almena had reported them prior to the fire. 

In 2018, Almena and Harris struck a joint plea deal with prosecutors before the trial began, agreeing to sentences of nine and six years, respectively. But the judge rejected it after several of the victims’ families protested, calling it too lenient.

In Thursday’s decision, the jury acquitted Harris but could not come to a unanimous decision regarding Almena. They voted 10-2 in favor of convicting Almena, leading to a hung jury. 

The jury reached its verdict following a recent shake-up in which three jurors were dismissed because of misconduct due to outside consultation with a firefighter, according to Almena’s lawyer J. Tony Serra, as reported by The San Francisco Chronicle.

Oakland Mayor Libby Schaaf released a statement on Thursday, expressing sympathy for the victims’ friends and families. “Our thoughts are with the families and friends of the victims today,” it read. “I am grateful for the professionalism and integrity displayed by all current and former city employees who participated in this trial. We send warmth and comfort to everyone in our community who was impacted by this devastating tragedy.”

To many in Oakland, the deaths caused by the fire are linked to the wider housing crisis, especially the lack of safe housing for low- and no-income residents, and the difficulties of living in one of the country’s most expensive housing markets. 

“The city of Oakland has been criminally negligent in its failure to ensure safe housing for poor people in the community,” said Steven DeCaprio, a housing rights advocate and the interim executive director of The Meiklejohn Civil Liberties Institute.

He contends that though the Ghost Ship fire has led to more safety awareness among the people residing in alternative living spaces, they often lack the financial resources to make necessary upgrades. “This focus on litigation only seems to ignore the true systemic oppression that results in people living in those types of conditions,” he said. “Until we have low-income and no-income housing for everyone in our community, people will continue to live in unsafe spaces.”

Since the Ghost Ship fire, Oakland city officials have increased the number of enforcement inspectors, according to David Keenan, executive director of Safer Spaces DIY, an organization that connects residents who live in potentially unpermitted and hazardous spaces with resources that can help them achieve legalization and safer living conditions.

Keenan notes that although there’s been a substantial improvement in safety awareness, a long-term solution for keeping affordable spaces for low-income communities still has a long way to go. “For places like Ghost Ship or the poorest artists that aren’t incorporated, there’s not really anything there for them,” he said. “There’s nothing about holding space.”

Almena’s next court hearing, to decide if he will face a second criminal trial, is set for October 4. 

For now, his attorney said, Almena is doing “pretty darn good,” given his circumstances. “He’s been reading an awful lot. He’s doing his art. His mind is becoming more intellectual and more scholarly,” he said.

Photo: A memorial near the live/work space known as the Ghost Ship, taken in December, 2016, shortly after the fire as rescue crews continued to search the building. Photo by Brian Krans.

This story was updated on the afternoon of September 6 to add quotes from attorney J. Tony Serra.