Concussion Inc. Asks Judge to Schedule Briefing on Release of 141 Pages of UC Berkeley Campus Police Reports in 2014 Ted Agu Football Death

by Irvin Muchnick

In what could become the climactic phase of this reporter’s California Public Records Act (CPRA) case against the University of California for internal documents pertaining to the 2014 conditioning drill death of UC Berkeley football player Ted Agu, attorney Roy S. Gordet has asked Alameda County Superior Court Judge Jeffrey S. Brand to schedule briefing on whether 141 pages of related campus police reports should be released.

Gordet made the request in a report prepared in advance of a September 27 case management conference. A facsimile of the report, which was filed Monday, is viewable at http://muchnick.net/cpracasemanagement091718.pdf. The full text of the attachment to the report, which includes the request for Judge Brand to set a briefing schedule, will be published in the next post. The CPRA lawsuit was filed in April 2017.

In the report, we also ask Judge Brand to suspend all work in the case except for this briefing on the issue of the campus police reports. UC senior counsel Michael Goldstein has described the 141 pages of reports as “a binder.” The purpose of the request, Gordet writes, is “judicial economy,” and explains that the case now has been “focused to the most salient dispute.”

In recent weeks, and in accordance with court orders, UC has released two new sets of previously withheld documents. In August the university produced 194 pages of internal emails, many of which involved discussions among then athletic director Sandy Barbour, department and campus public relations officials, and then football team physician Dr. Casey Batten over how to handle questions concerning the known fact that Ted Agu was a carrier of the sickle cell trait (SCT).

The documents show that on the day of Agu’s death, Cal scripted a decline to comment for a press conference — stating that this was out of respect for the family’s privacy and in order to defer to the Alameda County medical examiner’s upcoming autopsy and findings.

However, deposition testimony in a lawsuit by the Agu family against the UC Regents, which would settle for $4.75 million, established that during the same period, Batten was himself calling the medical examiner. And in their phone conversation, Batten in effect lobbied the coroner for an erroneous finding of generic heart failure as the cause of death, rather than exertional collapse associated with SCT. Critically, the Cal doctor did not tell medical examiner Dr. Thomas Beaver that Agu was an SCT carrier.

For details, see:

“NEW TED AGU PAPERS: Background of University of California Team Doctor’s Deception of Coroner in 2014 Football Death Is Revealed in Internal Emails,” September 11, https://concussioninc.net/?p=13231

“Cal Football Doc Casey Batten Spun, Lobbied, Misled Coroner in Ted Agu Death. Only Question Is: Did Batten Do This on His Own?”, September 12, https://concussioninc.net/?p=13240.

A second new UC document production last week, totaling nearly 400 pages, will be analyzed in an article later this week at Concussion Inc.

In his case management report to the court, attorney Gordet writes that the university recently informed us that it will argue against release of the 141 pages of campus police files by citing a CPRA exemption that protects law enforcement records. We will contend that the case law surrounding this exemption, CPRA Section 6254(f), does not define a “bright line” with respect to the types of campus police reports we seek. In addition, we will argue that 6254(f) should be interpreted in conjunction with facts in the record raising “questions of public agency malfeasance,” and in light of “urgent public interest in the recent national scandals in college sports bolstered by the recent tragic death of a student football player at the University of Maryland.”

Maryland’s Jordan McNair died in a conditioning drill this summer, evidently from heatstroke, in a case that has intensified scrutiny of the 37 college football conditioning deaths since 2000. In Maryland, the university commissioned an outside investigation amid reports that the football conditioning coach, Rick Court (with whom Maryland quickly parted ways), promoted a “toxic culture.”

Cal never conducted the same type of investigation after the Agu death, even though teammates testified to similar concerns about the culture of Damon Harrington, the conditioning coach under then head coach Sonny Dykes. In statements both to campus administrators and to campus police, one whistleblower player specifically cited a player-on-player assault, three months prior to the Agu fatality, that was arguably incited by Harrington, whose regime emphasized punishment drills.

Evidence of possible public agency malfeasance is in the deposition testimony of an Alameda County sheriff’s officer during the Agu family’s lawsuit. Lieutenant Riddic Bowers, who directed the coroner bureau, said his office was faxed a total of only 29 pages by the Berkeley campus police, despite the family attorneys’ information, with which Bowers agreed, that the campus police in fact generated a total of 141 pages of reports.

Concussion Inc. has told the university that we independently acquired the text of the table of contents of the “binder” documents. These consist of 16 chapters, including an initial police report and supplements, and a dozen reports or transcripts of interviews with players, coaches, and trainers. UC did not voluntarily disclose the existence of these documents, either at the time of my original requests to the public records compliance office, or in a search early in the litigation that was based on the parties’ negotiated search terms and parameters.

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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