DA launches criminal investigation into balcony collapse

Alameda County District Attorney Nancy O'Malley (center) with office spokeswoman Teresa Drenick (right) and Chief Assistant District Attorney Kevin Dunleavy. Photo: Emilie Raguso
Alameda County District Attorney Nancy O’Malley (center) with office spokeswoman Teresa Drenick (right) and Chief Assistant District Attorney Kevin Dunleavy. Photo: Emilie Raguso

The Alameda County district attorney’s office has launched a criminal investigation into the balcony collapse in Berkeley last week that killed six and injured seven, leaving many of the survivors with critical injuries.

District Attorney Nancy O’Malley announced the investigation on Wednesday, and provided additional information about it to the media Thursday morning at a press conference in her office.

Read complete balcony collapse coverage on Berkeleyside.

Tuesday, the city of Berkeley said it had completed its investigation into the balcony collapse at Library Gardens, and released a report that identified dry rot as the only contributing factor into what caused the collapse last Tuesday, June 16. The city also announced that it would propose changes to its building code to ensure safer conditions in the future.


The city said it did not intend to look at what might have led to the water damage. City spokesman Matthai Chakko said Wednesday that the city’s focus had been to find ways to keep the same problems from recurring by improving its approach to oversight and modifying existing requirements. Chakko said the actual cause of the water damage at Library Gardens was likely something that would have to be worked out in the courts.

O’Malley said Thursday that the district attorney’s office had been keeping an eye on what steps the city of Berkeley had taken, and decided Tuesday to launch its own investigation into the possibility of criminal negligence.

“When the news first occurred of what had happened, my office stepped in and we started monitoring and looking at this case from a criminal perspective,” she said. “And now that Berkeley has finished their investigation and limited its scope, we will step up our efforts and be the lead investigating agency.”

O’Malley said, ultimately, if she believes criminal negligence can be proven, it could result in a charge of involuntary manslaughter. Criminal negligence occurs when someone acts “in a high risk way that creates a high risk of death or great bodily injury,” she said.

“It must be aggravated, it must be culpable, it must be gross or reckless,” she said. “And it must be conduct that is such a departure from what would be the conduct of an ordinarily prudent person or careful person under the circumstances as to be incompatible with protecting life.”


Further, she said the evidence would have to show that the conduct was more than just ordinary carelessness, inattention or mistaken judgment.

Teresa Drenick, spokeswoman for the district attorney’s office, said she did not know of any prior cases in Alameda County where someone had been prosecuted after a death due to a construction defect.

The district attorney’s office plans to use its own investigators and attorneys as well as outside experts to analyze the evidence. Forensic examiners and forensic experts will be part of the team.

O’Malley said the balcony that collapsed has been in police custody since the June 16 incident, and that a second balcony that was removed from the scene when it was found to have water damage, too, has been secured in a “protected place” and is now under the supervision of the Alameda County sheriff’s office pending analysis.

Both balconies will remain in the custody of the district attorney’s office until the investigation is complete. No search warrants have been served in connection with the case.


O’Malley said she could not comment on who might be the target of the criminal investigation at this time, but said individuals who are part of an industry can be prosecuted.

O’Malley said her office is working closely with the city of Berkeley and the Berkeley Police Department to make sure her investigators have all the information they need. She said Berkeley police launched the initial investigation, which is now being spearheaded by the district attorney’s office, and that time will tell what role Berkeley officers might play moving forward.

Said Berkeley Police spokeswoman Officer Jennifer Coats, earlier on Thursday: “We are cooperating with the DA’s office and providing any assistance needed.”

The district attorney’s office is also working with the state licensing board as part of the probe, O’Malley said.

She said there is no timeline for when the investigation might conclude. The district attorney’s office has three years from the date of the incident, June 16, to file charges, but O’Malley said her office would work to make its findings as expeditiously as possible.

“On the other hand, we don’t want to sacrifice the thorough investigation for time,” she said.

O’Malley said victim witness advocates from her office would reach out to the families of those who died in the balcony collapse, as well as to the survivors, to offer assistance and help keep them informed during the investigation.

“To the families and to those who lost their lives, to those who are surviving this tragedy, and to their loved ones and our community at large: Each of you deserve to have this matter thoroughly and exhaustively investigated,” she said. “We will do so and that is the pledge that I make from my office.”

She also noted that, when the investigation concludes, her office may determine the facts do not support criminal prosecution. She said civil charges are also under consideration, however.

“We don’t know what the evidence is going to show,” she said. “We go into this with all of our expertise, to make sure that we are looking at every single aspect of this case from every angle. But what I can assure everyone is that we will do the best that we can.”

Related:
‘Severely dry rotted’ timber found after balcony collapse; city plans to stiffen safety rules (06.23.15)
Church services held for balcony collapse victims (06.20.15)
Protesters demand halt on new construction in Berkeley (06.19.15)
No ‘smoking gun’ in Berkeley balcony design (06.19.15)
As students recover in hospitals, support grows for survivors, victims of balcony collapse (06.18.15)
Coroner releases autopsy results on balcony victims; first responders sought help for stress (06.18.15)
City posts documents from balcony collapse property (06.18.15)
People gather to remember victims of Berkeley balcony collapse (06.18.15)
Firm that built Berkeley complex has been fined, sued (06.18.15)
Support springs up for families, friends of deceased (06.17.15)
As Berkeley orders removal of second balcony, questions over quality of construction (06.17.15)
Berkeley building under scrutiny before balcony collapse (06.17.15)
Mayor, consul general, lay wreaths to honor 6 killed in Berkeley balcony collapse (06.16.15)
Six who died in Berkeley: Young students in their prime (06.16.15)
Six students killed in Berkeley balcony collapse identified (06.16.15)
Berkeley orders balcony removal after tragedy kills 6 (06.16.15)
Berkeley balcony collapse leaves 6 students dead (06.16.15)

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