Update: Berkeley mayor reacts to the DA’s decision — see foot of the story.
Alameda County District Attorney Nancy E. O’Malley announced Tuesday that her office will not be filing criminal charges in relation to the June 16, 2015, balcony collapse in downtown Berkeley that killed six students, and left seven others with serious injuries.
The DA’s investigation has concluded that the primary reason the balcony collapsed was “water [that] had been trapped (or “encapsulated”) in the balcony deck during construction, leading to eventual and extensive dry rot damage.” There was insufficient evidence that “a defendant had acted with gross or reckless conduct akin to a disregard for human life,” the office said.
This corresponds with the city of Berkeley’s investigation immediately following the accident which identified dry rot as the only contributing factor in the the collapse that happened in the early hours of June 16 at Library Gardens at 2020 Kittredge St.
The DA’s office announced it would launch a criminal investigation on June 25, after the city of Berkeley had completed its investigation. The city had said that forensic examination and laboratory tests of the balcony were outside its scope of review. The city subsequently ordered inspections and stiffened requirements about materials, venting and access in Berkeley buildings to ensure safer conditions.
In a press released issued Tuesday morning, O’Malley said: “Not a day has passed since the tragedy of June 16 that I have not thought of the victims and their families. I am keenly aware of the devastation and injuries each victim and each family suffered and continues to confront. Friends, families and entire communities both in California and in Ireland have been affected by the horror of that day.”
The DA’s investigation into the cause of the collapse was led by Chief Assistant District Attorney Kevin Dunleavy, who has been in close contact with the Office of the Irish Consulate General in San Francisco, according to the DA’s statement.
The release details the scope of the investigation and its conclusions:
In the nine months since the tragedy, the Office has devoted substantial resources to determining the cause of the collapse (including any contributory factors), the extent to which the collapse was foreseeable and the degree of culpability that may attach to the various parties involved. An assigned team of experienced prosecutors and investigators has been aided in this work by investigators from multiple state agencies, including the California Contractors State License Board, the California Board of Professional Engineers, Land Surveyors, and Geologists, and the California Board of Architects. Industry experts in the fields of structural engineering, waterproofing and architecture have participated extensively in this investigation.
In addition to working closely with these industry experts, this Office’s investigation encompassed extensive witness interviews, and careful review of building plans, logs, inspection records and maintenance records. A central component of the investigation involved the “destructive testing” of the balconies and the building itself. The Office retained an outside construction company to carefully transport the balconies to a warehouse specially set up so the testing and analysis could be conducted. To ensure transparency and avoid prejudice, this testing was observed by representatives of the victims and their families, as well as representatives of the many different companies involved in the construction, maintenance, and ownership of this apartment complex.
After studying the balcony remnants and reviewing forensic lab reports, experts working with this Office believe that the primary reason the balcony collapsed was because water had been trapped (or “encapsulated”) in the balcony deck during construction, leading to eventual and extensive dry rot damage. There appear to be many contributory causes of this encapsulation, including the types of material that were used (none of which are prohibited by building code) and the very wet weather Berkeley experienced during the months of construction. The responsibility for this failure likely extends to many of the parties involved in the construction or maintenance of the building.
However, in order to file a manslaughter case based on criminal negligence, the District Attorney must be satisfied that any defendant or defendants acted with gross or reckless conduct akin to a disregard for human life, and that the deadly consequences of those actions were reasonably foreseeable. Any such charges would have to be proved beyond a reasonable doubt to twelve impartial jurors, all of whom must unanimously agree. Having carefully considered all the known evidence, and conducting an in-depth legal analysis based on expert opinion, the Office has concluded that there is insufficient evidence to bring criminal manslaughter charges against any one individual or company.
Five months after the tragedy, families of those killed in the disaster, as well as those injured, filed a total of 12 lawsuits in Alameda County Superior Court claiming the contractor for Library Gardens used inferior wood to build the balcony that collapsed, and allowed it to be saturated by rain before enclosing it.
The DA said it had reached out to the families of each student who was either killed or injured in the balcony collapse before making its announcement to inform them of its decision.
O’Malley concluded the statement by saying: “This is not a decision that I came to lightly. It is the culmination of months of consultation with my team of attorneys. It follows extensive review of reports, both legal and factual, and numerous meetings with investigators and experts.”
This story was updated after publication to include mention of an associated lawsuit.
Update, 2:20 p.m. Berkeley Mayor Tom Bates issued a statement at around 1:45 p.m. It appears below.
“I cannot say I am surprised by the District Attorney’s decision. I knew from the start that it would be difficult to reach the legal threshold for a case of manslaughter due to criminal negligence. Nevertheless I am optimistic that the safeguards we have adopted in Berkeley in the wake of the balcony collapse — including regular inspections and stricter building standards — will help us make sure that such a tragedy doesn’t happen again.
“I share the District Attorney’s support of the California Contractors State License Board’s examination of possible administrative action against the construction companies that were involved, and I continue to hope that we will soon have amendments to the California building code and inspection standards that can prevent such horrible accidents statewide.
“At the same time, I am in full sympathy with the surviving victims and with the families and friends of those who died and the survivors and can understand anguish that they may experience over the District Attorney’s findings. I hope for a speedy and just resolution of the civil court action pending on their behalf.”
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