Alameda County District Attorney's Office
Nancy E. O'Malley, District Attorney

Meet DA Nancy E. O'Malley

District Attorney Reaches Decision on Berkeley Balcony Collapse

Oakland, CA – After a nine-month investigation, Alameda County District Attorney Nancy E. O’Malley today announced that her office will not file criminal charges in connection with the collapse of a balcony on June 16, 2015, in Berkeley, California, in which six students lost their lives and seven others sustained serious injuries.

“Not a day has passed since the tragedy of June 16 that I have not thought of the victims and their families,” says DA O’Malley. “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.”

Last June, the City of Berkeley Planning and Development Department announced that forensic examination and laboratory tests of the balcony were outside its scope of review. The District Attorney then announced that her Office would conduct an independent investigation into the cause of the collapse. Chief Assistant District Attorney Kevin Dunleavy led the investigation and has been in close contact with the Office of the Irish Consulate General in San Francisco.

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.

“This is not a decision that I came to lightly,” explains DA O’Malley. “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.”

The District Attorney’s Office will continue to work with the California Contractors State License Board in any administrative action it pursues against the involved construction companies and will collaborate with industry leaders and state legislators to consider amending building codes and inspection oversight laws so that tragedies like this never occur again.

Prior to the release of this press announcement, the District Attorney’s Office reached out to the families of each student who lost his or her life, as well as to those who were injured, to inform them of this decision.

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Posted on Mar 29, 2016