On Friday, a judge denied a motion by Ghost Ship master tenant Derick Almena that would have reinstated a plea bargain in the case against Almena and creative director Max Harris on 36 counts of involuntary manslaughter for the fire at the warehouse two years ago.
Almena, 48, and Harris, 28 pleaded no contest on July 3 to 36 counts of involuntary manslaughter for the fire during a music party at the warehouse at 1309 31st Ave. on Dec. 2, 2016, in a deal brokered by Alameda County Superior Court Judge Morris Jacobson that called for Almena to serve 9 years in the county jail and for Harris to serve 6 years.
But Jacobson wasn't available for the sentencing hearing on Aug. 9 and 10 and Judge James Cramer substituted for him.
In a surprising move, Cramer rejected the plea agreement, saying he couldn't it accept it because thinks Almena hasn't fully acknowledged his responsibility for his role in the fire or shown sufficient remorse.
Almena's lawyer Tony Serra argued in court papers and in court today that Cramer acted improperly in rejecting the agreement and was unduly influenced by the emotions of the fire victims' family members who spoke at the sentencing because he said in court that he sympathized with them because he also had lost a child.
Serra said Cramer "had a massive conflict of interest because he had lost someone, too."
Serra said Cramer had told Harris' lawyer, Curtis Briggs, and him that he would go along with the plea agreement but then "changed his mind."
But prosecutor David Lim said when Almena agreed to the plea deal on July 3 he signed a waiver permitting the sentencing to be handled by a judge other than Jacobson who would have the discretion to throw out the agreement if he didn't think it was proper.
Lim said "the law is fairly clear" and that if Almena wanted to make sure that another judge wouldn't handle the sentencing he shouldn't have signed the waiver.
Judge Kevin Murphy said, "The sentencing judge retains a tremendous amount of discretion and freedom to make a decision he thinks is appropriate."
Murphy said there's "no basis" to reinstate the plea agreement because "the law gives him (Judge Cramer) the authority to do what he did" in rejecting the deal.
Murphy's decision means that Almena and Harris are still scheduled to stand trial next April 2.
A trial judge originally was to be selected on Oct. 12 but that decision was postponed for the third time today and the parties in the case will now return to court on Dec. 3 in hopes that a trial judge will be selected then.
Serra said after Friday's ruling that he had expected Murphy to deny his motion and had planned to file an appeal with an appellate court, but he said Almena told him he doesn't want the plea bargain to be reinstated and he wants to go to trial because he thinks the defense has a good case.
Serra said, "We're going to trial and we can prevail because we have a viable defense," which is the defense's belief that Oakland city and fire officials are to blame because they didn't do a proper job of inspecting the warehouse.
Harris' lawyer Curtis Briggs said he thinks Harris has a good chance of being acquitted in the trial because the defense has received "a landslide" of new evidence that "brings new facts to light" showing that Harris and Almena weren't responsible for the fire.
Prosecutors allege that guests and residents at the warehouse were endangered by its makeshift electrical system and floor-to-ceiling load of pianos, wooden sculptures, pallets, motor campers, rugs, benches, tree limbs and tapestries.
They also say the warehouse had no city permits for residency or for the concerts and shows that were held there and allege that Almena and Harris knowingly created a fire trap with inadequate means of escape.