District Attorney Joins UC Berkeley Police in Refusing to Explain Follow-Up to Witness Statement on Football Strength Coach Damon Harrington’s ‘Code Red’ in Player Assault

“Explainer: How ‘Insider’ Access Made San Francisco Chronicle and Berkeley J-School Miss Real Story Behind Death of Cal Football’s Ted Agu,” https://concussioninc.net/?p=10931

Complete headline links to our Ted Agu series: https://concussioninc.net/?p=10877

Installments to date in THE TED AGU PAPERS:

https://concussioninc.net/?p=10992

https://concussioninc.net/?p=10996

https://concussioninc.net/?p=11014

5:00 p.m. PDT May 9

“UPDATE — Alameda County District Attorney: ‘We Have Not Seen’ Cal Football Player’s 2014 Police Statement on How Strength Coach Damon Harrington Inspired J.D. Hinnant’s ‘Code Red’ Assault,” https://concussioninc.net/?p=11073

by Irvin Muchnick

Echoing the University of California-Berkeley campus police, the Alameda County district attorney’s office is ignoring questions pointing to possible cover-up by authorities of the background of a 2013 vigilante assault by a Cal football player on a teammate.

Evidence of this background has emerged in Concussion Inc.’s series of reports on “The Ted Agu Papers” — hitherto unpublished official documents telling the fuller history of the death of the 21-year-old player during a punishing February 7, 2014, conditioning drill conducted by Damon Harrington, the strength and conditioning coach on the staff of head coach Sonny Dykes.

On November 1, 2013, Cal player J.D. Hinnant brutally beat teammate Fabiano Hale after Hale skipped a conditioning session for the team’s non-travel group the day before. Harrington had imposed an extra “punishment drill” on the group, and suggested that those who were unhappy about it direct their aggression toward Hale. While the coaching staff would allow Hinnant, a “redshirt” athlete ineligible for play in 2013, the honor of donning a uniform for the November 2 home game against Arizona, Hale was still at Berkeley’s Alta Bates Hospital, where he had been checked in the day before through the emergency room, suffering from a concussion.

Our first excerpt from the Agu Papers quoted the deposition of yet another player who went to the police and gave a statement about what has been called Harrington’s “code red” directive in Hinnant’s assault on Hale. This deponent, in a wrongful-death civil lawsuit by Ted Agu’s family against the University of California, which resolved with a $4.75 million settlement, said that in March 2014 — a month after the Agu death and four months after the Hinnant assault — the deponent was so upset by Harrington’s coaching methods that he came forward to the police and offered a statement, which among other things detailed what this reporter began writing about the Hinnant-Hale incident within days after it happened.

(Concussion Inc. does not intend to disclose the name of the Agu lawsuit deponent who provided this police statement until after the Agu Papers are published in their entirety as an ebook. All proceeds from sales of the ebook will be donated to research on sickle cell trait, which was identified as a factor in Agu’s death.)

The deposition testimony and police statement raise a host of unanswered questions about the propriety of the police and district attorney investigations of the Hinnant-Hale incident. One such question is the timeline of the decision by authorities first to “defer” criminal charges against Hinnant and then to drop them entirely. Another set of questions involves whether the police and prosecutor knew of the allegations regarding coach Harrington’s incitement of a criminal act; whether they followed up on that information; and if not, why not.

In an interview with Concussion Inc. two weeks ago, Lieutenant Marc DeCoulode, head of the campus police patrol division, dismissed these questions. Without challenging the deposition testimony or the existence of the deponent player’s statement to police, DeCoulode said he would not comment because the case “is over and done with.”

Precisely when and how the case came to be closed, however, is not clear.

On January 31, 2014, assistant district attorney Paul Hora emailed me:

“I will defer the filing of criminal charges at this time. I have up to one year to file misdemeanor charges and 3 years to file felony charges.

The University and Football program have imposed a number of sanctions and rehabilitative measures on the suspect that are ongoing and extend well into the future. I also will demand some additional conditions be imposed during the period of deferral. I want to monitor the suspect’s progress toward meeting his imposed obligations and, at the same time, monitor the victim’s status and wellbeing going forward.

Additionally, I am scheduled to meet personally with the suspect and discuss with him the ramifications of his conduct and the associated criminal liability he continues to face. This process of meeting with the suspect is part of our DACI protocol  (District Attorney Corrective Intervention). We have found that our DACI protocol approach can be highly effective under the right circumstances. Of course, if during the period of deferral circumstances warrant the filing of criminal charges, then criminal charges will be filed.

Ultimately, I want this incident to be resolved fairly for all involved and in the interest of justice.”

Hora later added, “I am keeping track of [the matter] – keep in mind things can change quickly and the process is ongoing.”

In a telephone conversation, Hora initiated analogizing the suggestion of a role by Harrington in Hinnant’s violence to the movie A Few Good Men, whose basis is the murder trial of two Marines in what was called a “code red” act of disciplinary self-policing.

My dialogue with Hora concluded a week before Agu’s death — and five or more weeks before the deponent in the civil lawsuit, according to his later testimony, made his statement to the police regarding concerns over Harrington’s coaching methods. The deponent player and others described Harrington’s style as short on technique and long on the philosophy of instilling in his athletes a culture of “toughness.”

In response to a new query following our report on the newly discovered testimony, another assistant D.A., Micheal O’Connor, the records custodian, sent us a May 2 letter explaining in part: “After reviewing the reports and consulting Mr. Hale and his family, this Office deferred prosecution against Mr. Hinnant.  On December 3, 2014, the Office formally declined to charge the case. The Office does not retain police reports in those cases we decline to charge.”

I asked assistant D.A. Hora what was the significance of the December 3, 2014 date. Hora said there was “no significance.” He said it most likely was just the date when this disposition got entered into the office computer system. Hora also said that, notwithstanding a record that the D.A. “formally declined” to enter a charge, the possibility still exists that such a charge could be entered any time before November 2 of this year, when the criminal statute of limitations expires.

When I asked Hora if it was intuitive or logical that there could be a delay of nearly a year between his decision to “defer” or “decline,” and its official electronic recording, he did not respond.

Before publication of this update today, Teresa Drenick, public information officer for district attorney Nancy O’Malley, did not respond to these questions:

• Was the information from the player’s March 2014 police statement — or similar information from any source at any time prior to December 3, 2014 — in the possession of the district attorney? If the answer to this question is yes, then please explain the evident discretion behind your determination either that the information was irrelevant to the Hinnant investigation, or that it was relevant but didn’t rise to the level of further investigation of or charges against Harrington.

• Were the January 2014 decision to “defer” charges against Hinnant and the December 2014 decision to “formally drop” charges against Hinnant identical or separate events? If the former, then is the gap between the single decision and its entry into your computer system routine?

*****

Concussion Inc. is seeking a copy of the player’s 2014 police statement, and we will have more shortly on that aspect of the story. (Any reader who has a copy of the statement, or any other relevant information, is invited to email [email protected].)

To review our April 23 report on the related deposition, the player said “I was concerned about the level of conditioning … so I brought it to the attention of people that would know…. I was concerned that [Harrington’s program] was too difficult.”

Regarding the Hinnant-Hale incident, the player said, “We had a kid miss a workout on Halloween, and the whole team was punished without that player being there. And so we were — were punished up on the field doing very different exercises, rolling on the field.”

The transcript continued:

Q. […] I know it’s difficult, but you’re going to have to describe what do you mean by that, difficult. What exactly were you asked — what were you ordered to do?

A. We did exercises of rolling a number of yards on the ground, bear walks, crab walks, up-downs, many up-downs, more rolling. And those are the ones that I recall the best.

Q. You estimate you rolled, what, 100 yards?

A. Yeah, I stand by my statement in the police report.

Q. And did the players — not just you — but did most of your surrounding players get unbelievably dizzy and, in your words, and nauseated, throwing up, sick?

A. I personally was very — was very dizzy, and from — but that’s all I can speak of. I — I saw throw up. But that’s all I know. I know what I saw and I know what I felt. That’s it.

Q. Did you see other players throwing up and reacting much like you were?

A. I — I saw throw up, yes.

The player added that, though he didn’t personally witness the confrontation the next day between Hinnant and Hale, “I know … J.D. performed some kind of a physical violence against him that caused him to go to the hospital.”

Again from the transcript:

Q. [W]hat did the coach do, if anything, to elicit what you perceive to be some type of resultant conduct. What you saw, what did Coach Damon Harrington do?

A. He said he was not going to take care of it himself, and that it was on the team to take care of it.

Q. Did he make any physical gestures when he was doing that? With his fist and then demonstrate –

A. Yes, he — he –

Q. That’s why I have this video, so you can show the jury what did he do.

A. Right. He held up his fist when he said that.

Q. And did he take his fist and hit it in his hand and suggested the team take care of it?

A. Yes.

Steve Yerrid, attorney for the Agu family, referred specifically to the police statement as the deposition continued:

Q. Okay. Look at that line 15. What were you talking about when you were telling the police that he was standing in front of everyone. He brought everyone together. He said he wasn’t going to punish anybody himself.

A. Uh-huh.

Q. But he put it on the team to take care of it. And he said — those are your words? What did he say?

A. By any means necessary.

Q. And by doing what, you mentioned?

A. Putting his fist into his hand.

The player concluded, “[A]fter the Fabiano Hale case and in consulting with my father, he contacted an administrator [in the Cal athletic department[ that said, go to the police. And that was — that was that. We didn’t — we didn’t go to the police [until later].”