September 7, 2015
By Frank Cruz

"Zachary passed away unexpectedly on February 27th, 2009, just two weeks before his 6th birthday . . ." This is how I've told the story of my son's death for the past six years. When people learn about his story, and mine, the first question almost everyone asks is, "What happened?" I think I'm finally ready to answer that question on my own terms. This is the first time I've written about most of these details publically and the first time I've shared some of this with anyone other than my closest friends and family. I often wonder if the people responsible for Zachary's death still think about that day; if they wonder about him; if they ever think of how their actions six years ago continue to effect me and my family. I wonder if they've ever visited my son's grave to pay their respects. Sadly, I doubt it. It was too easy back then to blame others, and I can only imagine what they tell themselves now, six years later. The story I hope to tell below is not "my version." It is not really all that subjective. I have file cabinets full of documents that support the story I want to share here, but this isn't an argument. I don't need to convince anyone. If I could change all of this, believe me, I would. I would give anything to go back and fix this. My world fell apart on February 27th, 2009 and I've spent the better part of the last six years, trying to put it back together. I didn't ask for any of this. But I've done the best I know how with the cards I was given . . . In the end, I hope it will prove to be enough.

My son was killed on a sunny Friday afternoon while I was at work. When kindergarten ended at Le Conte that Friday, just like every other day, Zachary boarded a Berkeley Unified School District bus. The bus took him less than a mile to an afterschool care center at the corner of Derby and Warring Streets. This center, called K-2, was one of many that UC Berkeley operated under a department called the Early Childhood Education Program (ECEP).

BUSD had approved a bus stop for the Le Conte/K-2 route. The approved drop-off location was at the curb on the east side of Warring, directly in front of the daycare center. If Zachary had been dropped off at this location—the correct location—he never would have crossed Derby Street that day. But on Friday, February 27th, 2009, the bus driver stopped caddy-corner from the approved bus stop and let my son out.

There, on the wrong side of the street, Zachary found his UC daycare teacher, who was returning from a nearby elementary school with another group of students who also attended K-2. In deposition, the teacher later said she didn't see the car coming towards the group as they began crossing Derby Street until it was too late.

One story that has sadly taken hold about "Zachary's Corner" is that "a little boy darted into traffic" there. Zachary DID NOT run into the street. Eyewitnesses testified that he was holding another child's hand (as instructed by his teacher) and walking with an adult when he was hit and killed IN THE CROSSWALK attempting to cross Derby Street.

Zachary died at the scene of the accident before the ambulance arrived. We were told he passed almost instantly. A young Cal student-athlete who lived nearby rushed from her home and gave Zachary CPR before the medics arrived. She told me in a letter my son was calm and did not suffer as he died. She spoke soft, kind words to him, and comforted him in his final moments. The police told us Zachary "never saw the car coming"—they do not believe he had a chance to be afraid. These are small consolations to a parent when a young child is killed.

We took Zachary back to our hometown and laid him to rest on Saturday, March 7th, 2009 in Ventura, California. From Zachary's grave, you can see and sometimes feel the trains that rumble over the railroad tracks nearby. For a little boy who was passionate about trains, this is also a small consolation.

On the very same Saturday that we said goodbye at the cemetery in Ventura, hundreds of Bay Area families were celebrating Little League Opening Day back in Oakland. They held a moment of silence for Zachary, who was signed up to play baseball again that year. His little league team would have been the same as the first season: the Angels.

Five days later, we did our best to celebrate his 6th birthday without him.

Several eyewitnesses gave statements to the Berkeley police that the driver of the work truck "rolled through the stop sign" at Derby while making his fatal left hand turn. I'll never know for sure. More than a year would pass before our attorney could subpoena the driver's medical records as part of Zachary's wrongful death case. Through discovery and depositions for the civil trial, we learned that the driver wore an ocular prosthesis in his left eye socket—an artificial eye—which perhaps begins to explain how he could claim he "didn't see" five people in a crosswalk in the middle of a cloudless Berkeley afternoon. Remarkably, the investigators for the Berkeley Police Department failed to note the fact of his artificial eye in their accident report. Because the police failed to cite a "primary collision factor," the Alameda County District Attorney declined to press charges against anyone involved in Zachary's death.

The reality, though, is simple. Zachary died because of the negligence and failure of nearly every adult around him on February 27th, 2009. Yet no one was fired; no one was formally disciplined; the driver wasn't taken to jail or even issued a ticket. My child had literally died in the street and no one, individual or institution, felt it merited so much as an apology.

It was only through the courts that we discovered most of the facts I have shared here. No one—not the University I attended, loved, and worked for, the Berkeley Unified School District who I entrusted with my son, or the company whose employee ran over a 5 year old boy—helped us make sense of Zachary's death. In a secondary tragedy, they simply pointed fingers at each other.

I've never said this publicly before, but to be honest, I believe in my heart that they are all almost equally to blame. If just one institution (or individual) had followed their own standards, practices, and protocols, to say nothing of the letter of the law, Zachary would still be here today.

After several days of court ordered mediation between all parties, the civil suit was settled before trial. One thing my wife and I fought for in that process was formal letters of apology from the university and the school district (on behalf of their employees). The owner of the welding company met us in person and apologized as well during mediation (although I've still never seen or talked to the man who drove the truck that day). At some level, we finally received the apology we had needed all along.

Another thing we demanded before we agreed to a settlement was that those responsible for Zachary's death work with us to find ways to make sure our son wouldn't simply be forgotten. We gave over a quarter of a million dollars back to the University of California and met with the development office to create a new, endowed scholarship at Berkeley that we named the Zachary Cruz Memorial Scholarship. This endowment creates $10,000 in scholarships every fall for student parents and transfer students at Cal. At Zachary's elementary school in Berkeley, we were able to dedicate a significant technology gift to benefit the 300 public school kids who went to school with our son. We continue to work to honor his life and help others in his memory.

When people ask me how many children I have, I always say, "I have 3 boys." Zachary is my first born child. I will always be his father. Not even death can change those facts.

The other thing parents invariably say is: "I can't even imagine . . ."

I don't want you to imagine. Toni Morrison once wrote, "This is not a story to pass on." And, as a writer with a story I can't stop telling, I think I understand the tension inherent in that sentence. But on the other hand, while I would never ask anyone to walk a mile in my shoes, I would ask that you remember me, and especially remember my son, the next time you start the engine of your car.

In 2009, one month after the accident, Frank Cruz wrote an open letter to the community.