OAKLAND, Calif. (AP) – An attorney for a man accused of illegally converting a warehouse where a fire killed three dozen people at an unlicensed concert said Monday he will ask a judge to a trial to a different California county after a judge threw out his plea bargain.
Alameda County Judge James Cramer stunned the courtroom on Friday when he tossed out a deal in which Derick Almena agreed to serve nine years in prison for no contest pleas to 36 counts of involuntary manslaughter.
Another man, Max Harris, agreed to a six-year term.
Almena’s lawyer, Tony Serra, says his client can’t get a fair trial in Alameda County after publicly admitting his guilt when he thought they had reached a plea agreement. A hearing has been scheduled for Friday.
Alameda County Judge Morris Jacobson last month helped broker an agreement between prosecutors and lawyers for Almena and Harris.
Almena rented and illegally converted an Oakland warehouse into a residence and entertainment venue he called the Ghost Ship. Almena hired Harris to collect rent and help schedule concerts.
The warehouse caught fire during an unlicensed concert on Dec. 2, 2016, and killed 36 people. Alameda County district attorney Nancy O’Malley charged the men after saying they turned the warehouse into a death trap by cluttering it with highly flammable materials and failing to make it safe for people to live and attend concerts in it.
The plea deal that Almena agreed to called for nine years in prison. Harris agreed to a six-year term and also pleaded no contest to 36 charges of involuntary manslaughter. Jacobson then scheduled a formal two-day sentencing hearing to give grieving families an opportunity to tell the court of their loss.
But Jacobson was unavailable on Thursday for the scheduled hearing and Judge James Cramer was called on to handle the sentencing. Cramer on Friday stunned prosecutors and defense attorneys alike when he rejected the plea agreement. After listening to a day-and-half of families angrily denouncing the deal as too lenient, Cramer ruled that Almena failed to take adequate responsibility.
Cramer did say Harris appeared to express genuine remorse. Harris’ attorney Tyler White said he’s hopeful that a separate plea deal with the same terms can still be arranged for Harris.
Serra said there’s the possibility of working out a new deal with prosecutors. But if that fails, Almena will have to face trial.
“My client publicly stated his guilt in a case with a large amount of publicity,” Serra said. “We will file a change of venue motion if it goes to trial.”
University of California, San Francisco law school professor David Levine said that the new judge was “not as invested in the deal” as the original judge who brokered the agreement.
“That left the door open for him to reject it,” Levine said.
Alameda County district attorney spokeswoman Teresa Drenick declined comment.
Legal experts said the judge’s rejection of the plea agreement was a surprise and a rare event.
“It sent ripples through the legal community,” said defense attorney Michael Cordoza, a former prosecutor.
Cardoza said both sides had good reasons to accept the deal. He said that Almena faced a life sentence. Meanwhile, he said prosecutors faced the possibility of a politically disastrous acquittal.
Cardoza also speculated that San Francisco Bay Area judges may also be a reluctant to be perceived as too lenient with prison sentences after Santa Clara County Judge Aaron Persky was recalled from office in June. Voters recalled Persky after he sentenced former Stanford University swimmer Brock Turner to six months in jail instead of a longer prison sentence for a sexual assault conviction.
Serra said it’s unclear what role if any the Perksy recall had on Cramer. But he agreed that the recall “at some level” may affect some judges.
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