Ghost Ship master tenant Derick Almena told the Bay Area Reporter this week that he is optimistic that many more witnesses favorable to his defense will come forward in a new trial that is scheduled to begin next spring, after the three-year statute of limitations for negligent involuntary manslaughter is up.
Among the witnesses that he expects to call include Max Harris, his former co-defendant, who was acquitted on all 36 counts of negligent involuntary manslaughter for the deaths of 36 people in a fire on December 2, 2016 at an Oakland warehouse space dubbed the Ghost Ship. The trial verdicts reached last month resulted in a hung jury for Almena with 10 of the 12 jurors voting to convict him.
Of the 36 people who died in the fire, three identified as transgender individuals.
Almena spoke to the B.A.R. Monday, October 7, over a videophone from the Santa Rita Jail in Dublin. It was his first public comment since a hearing in Alameda County Superior Court last Friday that scheduled the retrial and denied a bail reduction from the current $750,000. His lawyers wanted it lowered to $50,000. His new trial date was scheduled for March 30.
Almena said he knew the judge on his case would not reduce his bail and regrets that his lawyers even brought it up.
"It just gives the DA, the prosecution, a chance to describe what a horrible person I am," he said, referring to the Alameda County district attorney's office that is prosecuting the case.
Although the jury came back with a vote of 10-2 to convict him, Almena said that the two jurors who were dismissed from the case were also on his side.
"They keep wanting to promote that it was 10-2, but actually it was 10-4," Almena said. "Two jurors basically got into trouble for advocating for me. Two jurors got kicked out for going outside the deliberation room to try to persuade people to vote not guilty for me. I actually had four people. I had 33% of the vote. And like [defense lawyer Tony Serra] said, four people could have easily turned into six people."
The juror disruption came near the end of deliberations, when the judge in the case dismissed three jurors and replaced them with alternates. Last week, Judge Trina Thompson found two of them in contempt of court and one was ordered to pay $500, the San Francisco Chronicle reported, citing a court official. The fine was stayed, however, so the juror does not have to pay until further notice from the judge.
The three jurors had been removed amid allegations of misconduct. According to media reports after the verdicts were announced September 5, one person was dismissed for soliciting information on the case outside the scope of the trial. Another was dismissed for attempting to sway the vote of a third juror, according to the Chronicle.
Almena said in his interview that a huge failing of the investigation was that the Ng family that owns the warehouse was never looked upon as possible suspects despite getting an insurance settlement of over $3 million.
"As far as I am concerned, I was framed," Almena said. "There was a lot more people, a lot more entities, that should have been involved in this case but they thought it was going to be a slam dunk with me and Max [Harris.]"
When asked how the new trial would be different next year, Almena responded, "I think the investigation was bungled, that is obvious to everybody. The owners should be held responsible. The owners should be made to testify, at least. And they won't. And no one will.
"But now with this new trial, a lot of people are coming forward who are willing to talk now because the criminal charges have all been basically dissipated," he added. "So there is a whole new energy of truthfulness that is willing to come and speak up."
Almena was referring to the statute of limitations that would be up after December 2, 2019, which would make witnesses less fearful of being prosecuted.
One of the jurors who voted to convict Almena, Millard Billings, was quoted in news reports as saying that he voted guilty because Almena violated the terms of his lease and broke the law.
In response, Almena said, "I didn't break any law and that came up in court." The Ghost Ship boss added that he was permitted under the lease to live on the property.
Almena added that the city of Oakland effectively violated the law by only inspecting the building just after it opened in 1948. He said that when the Ng family bought the building about 20 years ago they made changes to the building that were never approved.
"[The owners] hired carpenters, not even contractors, because there is not one permit pulled for 20 years of construction," he said. "They built walls. They subdivided the building. They built staircases. They put in doors. They hired an electrician to run wiring and put in separate breaker boxes. They never even let PG&E know. ... All of the subdivided units were coming under one meter. Highly illegal.
"They changed the use of their building," Almena added. "Who broke the law initially to even post an ad on Craigslist saying 'Warehouse available,' And then I apply with my application and in my lease it says 'art performances, gatherings, workshops, etc."
Almena said there was no fire security system.
"There's no water pipes, there's no waste pipes, there's nothing," he said. "Legally they could never rent that building for anything other than dry goods storage because that is what it is still registered, zoned, and permitted for, not for public occupancy. So when they rented it to me as an art collective, they were breaking the law."
The B.A.R. contacted the Alameda County District Attorney's office for comment on Almena's interview. Teresa Drenick, a spokeswoman for the office, responded, "Because this is an active criminal matter, we cannot comment."
The Ng family attorney did not immediately return the B.A.R.'s email requesting comment.
When asked about the family and friends of people killed in the fire who were angry about Harris being found not guilty and the jury not being able to convict him, Almena responded, "I can't even blame them for hating me, for going after me, for them wanting to see what their sense of justice is. All I can say is I am sorry. How many different ways can I say that? And I know I had a role in that. If I didn't rent that, if I didn't create that space, no one would have died there. End of story.
"But do I feel like a criminal? Did I do it with criminal intent or was my intent to house artists, to host art and culture? Yes, to me, it is just an absolutely fucking tragedy," he added. "Do I blame the police, the fire department? No. I don't blame them. Do I even blame the building owners? When something so cool is happening, nobody wants to shut it down because they see the benefits, spiritually, politically, culturally, and that is what happened there, and now that something did happen there bad, they are all ... everyone is backtracking and just pointing at me. Everyone is blaming me. Wow. How convenient."
The cause of the fire has never been determined, but when asked what he thought caused the fire, Almena responded, "I believe it was arson. I believe some hateful person was in there, and did something, ignited something."