Court’s Final Ruling Blesses the Secrecy of the 141-Page Berkeley Campus Police ‘Binder’ in the 2014 Football Conditioning Drill Death of Ted Agu; Our California Public Records Act Case Proceeds.

by Irvin Muchnick

Nearly four months after signaling that he might order the University of California to turn over 141 pages of reports by the Berkeley campus police in the Ted Agu sickle-cell trait death during an extreme offseason conditioning drill of then head coach Sonny Dykes and then strength and conditioning assistant Damon Harrington, an Alameda County Superior Court judge has confirmed that he changed his mind.

In an order dated February 26, Judge Jeffrey S. Brand denied my motion for release of these documents. Brand said they fall under an exemption of the California Public Records Act (the CPRA) protecting law enforcement records.

The CPRA case, which attorney Roy S. Gordet filed for me in April 2017, will move forward in attempts to resolve other remaining issues. The respondent UC Regents already has produced hundreds of pages that were previously withheld in my 2016 requests to the Berkeley campus CPRA compliance office.

This final ruling on the disputed 141 pages, though dated a week ago Tuesday, was not issued until this week. At the end of last week, and days after February 26, my attorney Roy S. Gordet and I noticed a cryptic and unelaborated entry “Motion Denied” at the court’s docket chronology website. Two days ago, Gordet asked Judge Brand’s clerk for clarification and was told of a “problem” with “mailing and imaging the order,” whatever that means. We received our copy yesterday.

The odd transmittal of the ruling was no match for the confused history and language of the court’s action itself. In a tentative ruling last November, Brand said he was “undecided”: “The Regents makes the implicit argument that the investigation was a law enforcement investigation because any death raises a reasonable suspicion of criminal activity. The court is not persuaded.” Brand ordered additional briefing to determine if there was a fact-specific basis for the university’s assertion of a reasonable suspicion of criminal activity in the Agu death.

In the new ruling, Brand says, “A dead body is but a single fact, but it is one that provides for a ‘particularized and objective basis’ for commencing a law enforcement investigation.”

In a last piece of verbal slapstick, the judge appears to be addressing the obvious existence inside the protected binder of public and unprotected records. From campus sources, Concussion Inc. previously acquired, published, and shared with the court the table of contents of the 141-page binder, which shows that it includes the final autopsy report on Agu by Dr. Thomas Beaver, then the Alameda County coroner. Autopsy reports are public records.

However, Brand arguably does not order UC to release the corresponding portion of the binder, and he certainly does not do so with directness or clarity.

Nor does the judge indicate a willingness to entertain his own in camera review of the 141 pages to determine whether there are parts that should be made public. The rationale goes like this: “If the Regents had a public record that was not exempt before it was placed in the binder, then it would still not be exempt and the Regents must produce the public record.” But (though the judge doesn’t use the word “but”) “The Regents would not be required to disclose that a record had been in the binder.” Oh.

Brand wraps up: “The relevant issue is whether the [campus police] Department created the Binder in the course of a law enforcement investigation, not whether the contents of the Binder are independently exempt under the CPRA.” Therefore, in camera review “would not assist the court.”

This ruling is a travesty of justice in my view. But our work in this case — and to get to the bottom of the University of California-Berkeley cover-up of the Ted Agu death — continues.

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