Even With the Judge Wrongly Enabling the Public Records Act Suppression of the Secret Berkeley Campus Police 141-Page Binder, Documents Are Telling the Story of the University of California’s Ted Agu Football Death Cover-Up

Complete headline links to our series on the Ted Agu death cover-up (beginning November 2013 — before Agu’s death): https://concussioninc.net/?p=10877

by Irvin Muchnick

On February 26, Alameda County Superior Court Judge Jeffrey S. Brand issued a key ruling in Concussion Inc.’s California Public Records Act (CPRA) case for additional internal documents in Ted Agu’s 2014 Cal-Berkeley football conditioning death. In my opinion and at minimum, the decision was boneheaded on the basis of the very foundation of law and logic the judge himself had laid.

Last November, Brand signaled his inclination to rule that the Berkeley campus police’s 141-page binder of reports surrounding the Agu death — a body of documents whose existence the respondent University of California Regents had not even yet disclosed in our case, but rather waited for us to “catch” and point out — was not protected under Section 6254(f), the law enforcement records exemption of CPRA.

The judge gave UC one more chance to show “a particularized and objective basis” for determining that the binder was not a willy-nilly collection of documents secured by the campus cops for a non-law enforcement purpose (for example, to help mitigate the institution’s exposure in an eventual $4.75 million civil lawsuit settlement with the Agu family), but rather involved “reasonable suspicion of criminal activity,” which Brand identified as the threshold for a 6254(f) exemption.

The university proceeded to do no such thing; it merely recycled circular declarations by campus police chief Margo Bennett and one of her officers that a death on campus is “always” regarded as a potential criminal matter. And the judge swallowed this rationalization in a final ruling in which this sentence epitomized the legalistic wordplay: “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.”

Brand, the retired dean of University of San Francisco Law School, happens to have gotten both his undergraduate and legal education at UC Berkeley.

This reporter’s CPRA case continues, both through possible eventual appeal to higher courts and through remaining issues in Superior Court. One is a disagreement over the blanket attorney-client privilege asserted by UC for hundreds of pages of internal emails, where, in our view, there is often a public relations or business component, not protected legal counsel.

Oh, and speaking of attorney-client privilege: The university just recently released two additional attorney-client privilege documents that it said were “inadvertently” omitted from last fall’s production.

Yet despite these “catch us if you can” tactics and the court’s curious outbreak of incuriosity, a narrative is emerging and accelerating. Campus sources have been giving us bits and pieces of the secret campus police binder, and we are publishing them. Here, I must confess, the opponents of disclosure have a point when it comes to the question of whether there is reasonable suspicion of criminal activity.

There is indeed such suspicion — and the activity involves, at the very least, the Cal football team physician at the time, Dr. Casey Batten, as well as possible others, including the campus police department itself. For we are now getting fuller background of the university’s knowledge that Ted Agu was a sickle cell trait carrier, and that Batten concealed this information from the Alameda County coroner and helped manipulate an erroneous finding of cause of death, perhaps for the purpose of minimizing the reputational and financial damage to the University of California-Berkeley.

Let’s review what we have so far.

1. Berkeley campus cops interviewed conditioning coach Damon Harrington twice within hours. The second was a “do-over” with a telegraphed agenda: “[W]hen you were asked if you knew of any medical conditions … you said no or you weren’t very specific…. [K]eep in mind what we don’t wanna do is we don’t wanna have it appear that you’re either not telling the truth … or that you’re being deceptive.”

Our story on March 12: https://concussioninc.net/?p=13691.

See for yourself (apparently corresponding to chapters D, M, N of the secret binder): http://muchnick.net/harringtonpolicetranscript.pdf.

2. The first sentence of the root Berkeley campus police incident report on the Agu death, by the patrol officer summoned to the scene, was: “On 02/07/14, at approximately 0653 hours, I was dispatched to the report of a male subject who had a pre-existing medical condition and was having a medical episode near the North tunnel of the Cal Memorial Stadium in Berkeley.” (emphasis added)

Our story on March 19: https://concussioninc.net/?p=13712.

See for yourself (apparently corresponding to chapter A of the secret binder): http://muchnick.net/UCPDagunarrative.pdf.

Plus a bonus document, the Emergency Medical Services report in which the paramedic noted, “PATIENT HAS HISTORY OF SICKLE CELL”: http://muchnick.net/aguEMS.pdf.

3. Athletic trainer Robbie Jackson probably told the first responders that Agu was a sickle cell trait carrier. He had alerted the paramedics to be prepared to deal with rhabdomyolysis — a syndrome found in victims of exertional collapse associated with sickle cell trait, not in episodes of generic heart failure.

Our story on March 20: https://concussioninc.net/?p=13728.

We have not yet uploaded the record of the campus police interview of Jackson, which appears to correspond to chapter K of the secret binder.

4. University of Oklahoma head athletic trainer — and national college football conditioning death expert and critic — Scott Anderson tells us that on the day of Agu’s death, a Cal football assistant coach told Anderson’s source, “It’s a sickle cell death.”

Our story on March 25: https://concussioninc.net/?p=13743.

5. An assistant athletic trainer, Michael Jones, told a Berkeley campus cop he didn’t know if he “was allowed” to discuss Agu’s “medical status.”

Our story on April 2: https://concussioninc.net/?p=13752.

See for yourself (apparently corresponding to chapter E of the secret binder): http://muchnick.net/jonespolicereport.pdf.