Alameda County District Atty. Nancy O'Malley on Thursday promised a "thorough and exhaustive investigation" of the June 16 collapse of a Berkeley balcony to determine whether criminal charges or a civil consumer protection action are warranted.
Flanked by her chief assistant, O'Malley said at a news conference that her office had been monitoring the deadly collapse and moved to take on the lead role in a criminal investigation after Berkeley city officials announced Tuesday that they would not pursue one.
The tragedy that left six Irish students dead — one of them a dual citizen from the Bay Area — and injured seven "has devastated communities throughout the Bay Area and Ireland," she said.
Addressing the families directly, O'Malley added: "Each of you deserve to have this matter thoroughly and exhaustively investigated. We will do so. That is the pledge I make from my office."
D.A. spokeswoman Teresa Drenick said that to her knowledge, Alameda County prosecutors have never brought a criminal prosecution in the case of a death resulting from a construction defect, though other jurisdictions have.
O'Malley declined to weigh in on Berkeley's initial decision to wrap up its investigation without reviewing forensic evidence or determining a cause, saying only that "their investigation was limited in scope, and they made that clear in statements to the media."
City officials on Tuesday proposed strengthening local codes in an effort to prevent water intrusion and resulting dry rot in balconies. But they declined to conduct a materials analysis of evidence or draw conclusions about a cause.
O'Malley said the collapsed fifth-floor balcony is in the custody of the Berkeley Police Department, which, along with other city departments, is cooperating with the district attorney's office. The Sheriff's Department, meanwhile, is obtaining custody of a second balcony — removed from the floor below the collapse — and "moving it to a secure place so our forensic experts can analyze it."
She said she was confident that the chain of custody has not been breached and that an exhaustive investigation can be carried out "with the evidence we have."
She warned that criminal charges may not be warranted but promised a thorough review. Criminal negligence must involve more than inattention or mistakes in judgment, she stressed. Defendants must have acted in a reckless way that created a high risk of injury or death.
"It must be aggravated, gross, reckless, culpable," she said, "and such a departure from what would be the conduct of an ordinary person as to be incompatible with protecting life."
She said her office had been working closely with the owners of the building to ensure the second balcony was located and secured, although she declined to say where it has been.
The district attorney's office has 66 sworn officers, among them experts in criminal, civil and environmental law, though Drenick said it is not yet clear how many will be assigned to the case.
The victim/witness division already is reaching out to survivors and the families of those killed, O'Malley added. Victims advocates will keep them informed "every step of the way," she said.
The division steps in if there is "probable cause or reasonable suspicion" that a crime has been committed and does not wait for a determination to be made about prosecution, she said.
The statute of limitations on criminal negligence and involuntary manslaughter is three years, she said, but she declined to speculate how long the investigation might take.
Any findings of criminal negligence must be deemed provable for charges to be brought, she added. A thorough vetting "is what every victim deserves," she said. "We grieve with them."
If a civil case — which would be a consumer protection case and not one brought on behalf of individual victims — is warranted, the investigation would be bifurcated, she said.
O'Malley said her office will "bring in outside experts" and is working with relevant state licensing boards.
She declined to comment on the evidence or potential targets of the investigation and said she would seek to be transparent without compromising the probe or drawing any conclusions.