Thursday 8 December 2016

Berkeley tragedy: Families to pursue lawsuits after it is revealed no criminal charges will be brought

No criminal charges over Berkeley balcony tragedy

Shane Phelan and Independent.ie Newsdesk

Published 29/03/2016 | 17:13

The six students who lost their lives in the tragic accident, top left to bottom right: Lorcan Miller, Eoghan Culligan, Nick Schuster, Ashley Donohoe, Eimear Walsh and Olivia Burke

Lawyers representing the families affected by the Berkeley balcony tragedy said they are continuing to pursue lawsuits over the disaster after it was revealed that no-one will face criminal proceedings.

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The collapse, which occurred in the early hours of June 16 2015, claimed the lives of six Irish students and seriously injured seven more.

The six students who lost their lives in the tragic accident, top left to bottom right: Lorcan Miller, Eoghan Culligan, Nick Schuster, Ashley Donohoe, Eimear Walsh and Olivia Burke
The six students who lost their lives in the tragic accident, top left to bottom right: Lorcan Miller, Eoghan Culligan, Nick Schuster, Ashley Donohoe, Eimear Walsh and Olivia Burke

The five Irish students who died were all from south Dublin - medical students and friends Lorcan Miller and Eimear Walsh; Olivia Burke, who went to school with Eimear; Niccolai Schuster, who was at the same college as Lorcan and Eimear, and his friend from school Eoghan Culligan.

Irish-American Ashley Donohoe, who lived in California and was a cousin of Olivia's, also died.

The students were on J1 working visas for the summer and were among 40 people attending a birthday party when the balcony collapsed.

"The civil justice system and the criminal justice system operate independently, and the District Attorney's decision which was announced today in no way hinders or negatively affects the probability of success in the ongoing civil litigation," said Michael Kelly, of Walkup, Melodia, Kelly and Schoenberger in San Francisco.

The lawyer also said it had been widely expected that no criminal action would be launched.

He said complicating factors included the potential for a number of people or companies being responsible over a ten-year period.

"The families and students are grateful to the District Attorney for the time, effort and expense invested in the process of evaluation," Mr Kelly said.

He said the DA's inquiry was thorough and careful.

"Much of the information generated, the facts developed, the witnesses identified and the evidence collected in the criminal investigation will benefit the bereaved families and the injured students as they now prosecute the civil actions that have been filed," he said.

"The prosecution of the civil cases will permit our clients to achieve their primary goals: uncovering the truth, publicly identifying the wrongdoers, and holding accountable those responsible for the damage, loss and suffering they have caused, and bringing about changes to residential construction industry practices that will prevent such a needless tragedy from recurring in the future."

Earlier today it was revealed No one will face charges over the Berkeley balcony collapse, which claimed the lives of six Irish students and seriously injured seven more.

The news was announced by a district attorney in California following a nine-month investigation into the tragedy.

Alameda County DA Nancy O’Malley said there was insufficient evidence to bring criminal manslaughter charges against any one individual or company.

Ms O’Malley said the likely cause of the tragedy - water being trapped in the balcony deck during construction, leading to dry rot – had been established.

She said there appeared to be many contributory causes of this, including the types of material that were used 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,” she said.

However, Ms O’Malley said proving beyond a reasonable doubt that any one party was guilty of manslaughter would not be possible.

Read More: 'It didn't look real' - police recall horror of Berkeley scene

“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,” she said.

“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.”

Ms O’Malley said it was not a decision she had taken 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.”

Read More: Berkeley lawsuit claims 'red flag' warning ignored

In making the announcement, Ms O’Malley said she was keenly aware of the devastation suffered by the victims and their families.

“Not a day has passed since the tragedy of June 16 that I have not thought of the victims and their families,” she said.

“Friends, families and entire communities both in California and in Ireland have been affected by the horror of that day.”

Ms O’Malley said that over the past nine months her office had devoted substantial resources to determining the cause of the collapse, 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.”

Ms O’Malley said a central component of the investigation involved the “destructive testing” of the balconies and the building itself.

An outside construction company was retained 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,” she said.

“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 in the balcony deck during construction, leading to eventual and extensive dry rot damage.”

Ms O’Malley said the families of the dead and injured were informed prior to her announcement today.

In a statement today Acting Minister for Foreign Affairs Charlie Flanagan said his thoughts were "first and foremost with the families of the six young people who lost their lives in Berkeley last June.

His said his department will "carefully consider" the details of the District Attorney's findings.

He said that the investigation "shone a vital kught on the circumstances and factors that contributed directly and indirectly to the collapse of the balcony".

Mr Flanagan also said that the investigation was an "important step in a process, the ultimate objective of which is to ensure that a tragedy such as Berkeley never occurs again". 

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