Alameda County to lead criminal investigation into Berkeley balcony collapse

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Ariel Hayat/Senior Staff

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OAKLAND — Alameda County will be taking the lead in a criminal investigation regarding the balcony collapse that killed six and injured seven in Berkeley on June 16, according to district attorney Nancy O’Malley.

County officials will hold onto the two removed balconies until the end of the investigation, O’Malley said at a Thursday press conference, and will be looking into what degree of negligence can be demonstrated, which could lead to involuntary manslaughter charges. The announcement comes just two days after the city of Berkeley said it was ending its formal investigation.

According to O’Malley, the leaders of the new investigation will be working closely with the city and Berkeley Police Department to ensure that they have access to all the information available.

O’Malley stated at the press conference that “forensic and laboratory examinations were not in the scope” of the city’s investigation, which led the Alameda County District Attorney’s Office to step in and examine the incident from a criminal perspective.

“Each of you deserve to have this matter thoroughly and exhaustively investigated,” O’Malley said at the press conference. “We will do so, and that is the pledge that I make from my office.”

The city announced Tuesday a number of proposed regulations aimed at preventing similar accidents in the future that would go to Berkeley City Council.

Niall McCarthy — a partner at Cotchett, Pitre & McCarthy LLP — said a criminal investigation is “fantastic” for the safety of Bay Area residents, as it will cause property owners to further investigate their own balconies and change how they view their properties. McCarthy also hopes that a successful case will lead to increased government inspection of balconies.

Attorney David Anderson said that the criminal investigation “gives the message to property owners and contractors that they won’t just have to pull money out of their pockets but could potentially be put behind bars.” Anderson said he is preparing to travel to Dublin to explore the possibility of advising one or more of the victims’ families.

In order to provide substantial evidence in a criminal case, prosecutors will have to prove gross negligence or recklessness beyond reasonable doubt, McCarthy said. This is significantly more than what is required in civil cases. According to McCarthy, civil cases require a 51 percent guarantee of fault, whereas criminal cases require closer to a 99 percent guarantee.

According to McCarthy, fault in these types of cases usually results from failure to heed warnings during construction or from tenants; finger-pointing among the various groups involved, in an attempt to avoid blame; or proof of a pattern of misconduct on the part of the defendants.

As reported by the San Francisco Chronicle, the investigation will likely focus on Segue Construction Inc. — the company responsible for constructing the building — and on R. Brothers Inc., the company responsible for waterproofing the balcony’s wooden support beams. Several lawsuits throughout the Bay Area involving allegations of water penetration due to faulty waterproofing have been filed against Segue in the past.

“We continue to offer our full cooperation to all investigating authorities,” Segue said in a statement released after the press conference. Segue officials were not available for further comment.

While O’Malley was not willing to directly comment on the potential targets of the criminal investigation, she said that any individual who is part of an involved company can ultimately be declared guilty of involuntary manslaughter.

The statute of limitations gives the district attorney’s office up to three years from the date of the incident to prosecute. O’Malley said that while her office plans to move the process along as “expeditiously as we can,” the ultimate priority is ensuring a complete and thorough investigation.

If criminal prosecution cannot be supported, the office will still look into civil charges.

Contact Ariel Hayat and Trevor Greenan at [email protected].