Berkeley Campus Police’s Withholding From County Sheriff of 112 Pages of Reports Is Part of the ‘Third Layer’ of the Ted Agu Football Death Cover-Up

by Irvin Muchnick

One of the sets of documents currently being litigated in my California Public Records Act (CPRA) lawsuit against the University of California is a 141-page report the Berkeley campus police generated following the 2014 offseason punishment drill death of football player Ted Agu.

From descriptions of the report by campus sources, I already know much about its contents. They consist largely of transcripts (or alternatively, arbitrary short summaries) of officers’ interviews (and, significantly, additional carefully coached re-interviews) of various parties who were privy to the fatal collapse of this 21-year-old on a hillside near the Bears football complex in early-morning darkness. But there are other nuggets, as well, including complaints by whistleblowers of the overall methods of strength and conditioning program of Damon Harrington, who at the time was on the staff of head football coach Sonny Dykes.

Three years ago, astoundingly, Chief Margo Bennett’s department found a way to hide all but 29 of these pages even from the Alameda County Sheriff’s Office, whose Coroner’s Bureau, in support of the medical examiner’s autopsy findings, was specifically authorized to investigate the circumstances of the death. Among the arguments attorney Roy S. Gordet is making on my behalf to Alameda County Superior Court Judge Jeffrey S. Brand is that the public today is entitled to access to all 141 pages: the 29 the sheriff received and the 112 that were deep-sixed.

What’s the game here? I suspect that when the final Venn diagram gets drawn up of every strategic UC non-disclosure, it will expose blatant abuse of discretion on the part of the cops — whether on their own or at the corrupt direction of higher administrators. Unilaterally, the campus police seemed to have determined, in the interest of institutional butt-covering rather than public safety, which pieces of gathered evidence were, and which were not, relevant to an effective negligent homicide, for which the UC Regents would pay $4.75 million to settle a lawsuit by the decedent’s family.

Concussion Inc. already has reported that the campus police never forwarded to the Alameda County district attorney the chilling statements about Harrington’s maniacal ways by backup quarterback Joey Mahalic. These statements were rooted in an incident three months before Agu’s death, when player J.D. Hinnant, at least indirectly incited by Harrington, beat into unconsciousness and the Alta Bates Hospital emergency room a teammate, Fabiano Hale, who had skipped a conditioning session. At the time the football team and the campus buzzed with these details, and it is hard to believe that the police and the DA were unaware of them prior to the announcement — just days in advance of the Agu fatality — that criminal charges against Hinnant were being “deferred.”

But, indisputably, these details were in law enforcement records after Agu died and while the DA’s office said it was holding open the Hinnant-Hale case. The term “obstruction of justice” is by no means a stretch. I call this lapse the third of the Agu story’s three Cal cover-ups; it is the systematic one, the most important one, and not incidentally the one no major news outlet will touch.

Before getting to full definitions of the the three cover-up tiers, I asked Chief Bennett just what was her explanation for burying 79 percent of the pages of her report before sharing it with the sheriff? Bennett, who has answered some of Concussion Inc.’s queries in the past, did not respond to this one yesterday. Nor did Dan Mogulof, media spokesperson for Chancellor Carol T. Christ.

Bennett also has not availed herself of the opportunity to explain what she was thinking in a March 20, 2014, email to then-vice chancellor John Wilton, which the university recently released during negotiations in my CPRA case. The police chief wrote in part: “John, regarding the documents I gave you yesterday, please don’t share the papers … l put them together for you (and Ann if needed) only. If others need the information, I am happy to give a verbal briefing, but not documents. The case is not available for a [Public Records Act] request and I’d like to keep it that way.”

Cover-up? What cover-up?

Here are the three evident layers as I see them.

First, there was the cover-up of the core sequence of the February 7, 2014, death incident itself. Trainers and coaches ignored Agu’s distress (both Harrington and head athletic trainer Robbie Jackson would falsely insist the athlete collapsed only once). The logistics of lifesaver first responders were clumsy. The communications to teammates and families by the coaching staff and the athletic department were callous and inaccurate. This aspect was the focus of the San Francisco Chronicle’s single in-depth account in January 2016. An obvious plant by litigating parties on the verge of settlement, the Chronicle article was based on leaked papers containing far more damaging information on layers 2 and 3. But the newspaper, ever protective of King Football, refused to go there. It was one and done.

Second, there was the cover-up of Agu’s sickle cell trait. Almost before the cadaver was cold, Dr. Casey Batten, the football team physician, called Dr. Thomas Beaver, the medical examiner, to lobby for a finding of run-of-the-mill heart failure. Batten didn’t tell Beaver that Agu carried sickle cell trait, which made him uniquely susceptible to a life-threatening exertional attack. Only months later, when the family sued, did the medical examiner (who had moved to another state), realize that this was likely a sickling episode, and prevailed upon his former office in Alameda County to amend the findings. (But if you google “Ted Agu death,” you’ll still see cause of death characterized online as simple “hypertrophic cardiomyopathy.”) This aspect got covered by ESPN’s Outside the Lines, accompanied by one-off outrage from Ted’s parents before they settled into silence and privacy.

Third is Harrington’s criminal agency and the lethal culture of Cal Bears football. Accountability for this one floats in the ozone. Sonny Dykes got a raise and a contract extension even as UC was forking out nearly five million dollars in hush money, subsidized by taxes and tuition; he is now head coach at football-crazier Southern Methodist University. Harrington is football strength and conditioning coach at nearly 100 percent African-American Grambling State, whose student-athletes must be proud to have a support staff so contemptuous of sickle cell trait.

After Agu died, Cal’s chancellor at the time, Nicholas B. Dirks — already weighed down with enough independent scandals on the academic side to make his tenure mercifully short — commissioned a joke one-day review of the football strength and conditioning program. Once this review got exposed as a joke in the summer of 2016, Dirks ordered a second report. The co-authors, Dr. Elizabeth Joy and Wayne Brazil, were appointed in November of that year.

As this article was being published, the Joy-Brazil report still had not been released. It is expected to be released in the next weeks, after the campus has finished emptying out from graduation, perhaps during Memorial Day weekend — a cover-up football university’s equivalent to the Friday afternoon bad-news dump.

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2017 op-ed article for the Daily Californian on my Public Records Act lawsuit:http://www.dailycal.org/2017/04/25/lawsuit-uc-regents-emblematic-issues-facing-college-football/

Second op-ed article for the Daily Californian (published May 4):http://www.dailycal.org/2018/05/03/years-later-questions-remain-regarding-football-player-ted-agus-death/

“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