Judge refuses to restrain Berkeley balcony collapse investigators

The building company fails to stop district attorney’s testing the balcony evidence

A California judge has refused the construction company that built the Berkeley building – where six students died last month in a balcony collapse – a temporary restraining order against criminal investigators.

Judge Evelio Grillo refused the temporary order to Segue Construction, which built the Library Gardens apartment block on Kittredge Street in downtown Berkeley in 2007.

The company had sought to block the Alameda County district attorney, which prosecutes crime in Berkeley, from testing or inspecting the remains of the dry-rotted fourth-floor balcony or the balcony beneath that was removed by city building inspectors.

Five 21-year-old Dublin students - Eimear Walsh, Eoghan Culligan, Lorcán Miller, Nick Schuster and Olivia Burke - and Ms Burke's Irish-American cousin Ashley Donohoe (22), from Rohnert Park, California - were killed when the fourth-floor balcony they were standing on collapsed at an early morning 21st birthday party on June 16th.

Seven other students were injured in the accident, including a number seriously.

Two students have been discharged from hospital.

After the hearing at the Alameda County superior court, prosecutor Michael O'Connor called the request for a restraining order an attempt to "piggyback and spy on a criminal investigation," according to the California newspaper, San Jose Mercury News.

Segue’s lawyer Victoria Ersoff told the judge during the hearing that the company did not wish to participate in the criminal investigation but wanted to view the balconies before investigators conducted tests.

“We all know here’s going to be civil litigation,” she said, according to the newspaper report.

Ms Ersoff told the court that Segue wanted to preserve the evidence for the criminal and civil court actions that are likely to be filed, and that they wanted to examine the evidence first before further destructive testing.

She claimed that any testing of the evidence would amount to “tampering with the evidence” or “destroying the evidence”.

Mr O’Connor rejected this, saying that the forensic handling of evidence “could hardly be described as tampering.”

Segue claimed City of Berkeley building inspectors, who blamed dry rot caused by water damage for the balcony collapse, botched the initial investigation by removing the third-floor balcony.

The company argued in court filings that the lower balcony could have used for “accident reconstruction purposes to determine the source and cause of water intrusion” in the higher collapsed balcony.

They claimed that the third-floor balcony “may now be irreversibly damages from destructive testing” and warned against any further invasion investigation of the evidence to the exclusion of the company.

Segue, based in the nearby city of Pleasanton, claimed that further destructive testing “could further damage the evidence” and severely compromise its defence in the anticipated civil and criminal actions.

District Attorney Nancy O’Malley announced parallel civil and criminal investigations by prosecutors in her office.

She told reporters last week that the remains of collapsed balcony were in the possession by the Berkeley police department and that the lower balcony was in the possession of the local sheriff.

Negotiations between the district attorney and Segue to allow the company observe the testing of the evidence in the fatal balcony collapse broke down without resolution ahead of the court hearing.

Judge Grillo said, according to the San Francisco Chronicle’s report of the hearing, that prosecutors are “under obligation to conduct a fair and impartial investigation.”

Attorney Eustace de Saint Phalle of San Francisco firm Rains Lucia Stern, representing Ms Donohoe’s parents, said that the family fully supported the district attorney carrying out an independent investigation.

Simon Carswell

Simon Carswell

Simon Carswell is The Irish Times’s Public Affairs Editor and former Washington correspondent