Final Court Brief For Secret 141-Page Berkeley Campus Police ‘Binder’: ‘Overwhelming Evidence of National Interest in Football Conditioning Deaths, Including Ted Agu’s, and University of California’s Cover-Up’

Sunday at Concussion Inc.: Berkeley campus police chief Margo Bennett has a credibility problem with her claim to the court that a message to her about public relations in the aftermath of the Ted Agu football conditioning death, from a senior vice chancellor, “was not directed to me.”

by Irvin Muchnick

In Concussion Inc.’s reply brief today asking Alameda County Superior Court Judge Jeffrey Brand to compel the University of California to release 141 pages of Berkeley campus police reports on the 2014 offseason conditioning death of football player Ted Agu, lawyer Roy S. Gordet argues that the university was not legitimately protecting criminal investigation files under the state Public Records Act, but rather fostering a cover-up that is about to enter its sixth year.

“It will be in the public interest” for the contents to see the light of day, Gordet writes in the final papers of our motion. “Respondent has made no showing that it will be harmed by the disclosure and no showing that it is not in the public interest to have the contents revealed so that the conduct of a public university and its officials can be scrutinized.”

The conclusion of the brief adds that case law on Section 6254(f) of the Public Records Act, governing exemptions of law enforcement records, is intended to meet the transparency and accountability objectives of the statute — “not to unjustifiably enable law enforcement agencies, or in this case, a public university, to evade [the law’s] goals and principles.”

Ted Agu’s death resulted in 2016 in the UC Regents’ $4.75 million settlement of a lawsuit by the family survivors. The next year this reporter filed the Public Records Act case, which is now focused on 141 pages of what the university is calling a “binder” of campus police reports and supplementals. In a declaration in support of the university’s response brief, a campus police officer acknowledges that the triggering incident report involved a stricken “male subject who was reported to have had a pre-existing medical condition.”

That pre-existing medical condition was sickle cell trait. Agu died in an exertional collapse associated with the trait.

Yet, after being misled by Dr. Casey Batten, the team football physician at the time, the Alameda County coroner initially ruled that the cause of death was generic heart failure. This finding would not be corrected for more than a year. The medical examiner’s reversal followed discovery and testimony in the Agu family lawsuit exposing Batten’s phone conversation with the coroner, Dr. Thomas Beaver, at the start of the autopsy, as well as the fact that UC Berkeley had shared with the county sheriff’s office, of which the medical examiner’s office is a part, only 29 of the 141 pages currently being sought in our Public Records Act case.

In addition to the original February 7, 2014, incident report on the Agu death, the heretofore hidden 141 pages include supplemental reports and interviews, according to a table of contents of the binder that we independently obtained and published.

One of the interviews is with a whistleblower Cal football player, Joey Mahalic, who complained about the methods and culture of the conditioning program under then head coach Sonny Dykes’s assistant, Damon Harrington, the same coach whose unorthodox punishment drill killed Agu. Emblematic of this culture — described as “toxic” in the parallel scandal of the recent conditioning death of University of Maryland football player Jordan McNair — was, in Mahalic’s account, Harrington’s instigation of a criminal assault by player J.D. Hinnant on teammate Fabiano Hale, who had skipped a conditioning session and caused the players who were present to endure extra sets of punishment drills.

In a recent report on the national pandemic of college football conditioning deaths, HBO’s Real Sports included an interview with Trey Cheek, another Golden Bears player at the time. Cheek’s account of Harrington’s incitement of Hinnant — whose beating of Hale caused a concussion and emergency room hospitalization — was even more explicit than Mahalic’s. In Concussion Inc.’s motion for disclosure of the campus police reports, we included as an exhibit a DVD copy of the Real Sports segment. The segment also had an excerpt of the videotaped deposition of coach Harrington in the Agu family’s lawsuit, which portrayed him in a poor light.

Since 2000, there is documentation of non-traumatic deaths in college football conditioning and practice sessions at the rate of nearly two per year.

In the next post we will publish the full text of Gordet’s brief and my supporting declaration. A facsimile of the papers is viewable now at http://muchnick.net/reply141pages.pdf.

A facsimile of the opening brief in our motion, filed October 15, is at http://muchnick.net/motionfor141pages.pdf; ; the full text is at https://concussioninc.net/?p=13312. The text of the table of contents of the police report binder is at https://concussioninc.net/?p=13316. The University of California’s response brief, filed November 5, is at http://muchnick.net/oppobrief141pages.pdf.

Judge Brand has scheduled a hearing on our motion for November 21 at the Hayward Hall of Justice.

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