Is University of California Committing Public Fraud in Cover-Up of Football Player Ted Agu’s Death and Sonny Dykes’ Strength Coach Damon Harrington?

“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

Installments to date in THE TED AGU PAPERS:

https://concussioninc.net/?p=10992

https://concussioninc.net/?=10996

https://concussioninc.net/?p=11014

https://concussioninc.net/?p=11087

https://concussioninc.net/?p=11096

https://concussioninc.net/?p=11099

https://concussioninc.net/?p=11120

https://concussioninc.net/?p=11201

by Irvin Muchnick

The answer to the question in the headline above this story lurches ever closer to an undisputed “yes” in the wake of Dr. Jeffrey Tanji’s admission today that the public release of his four-page June 2014 report to the University of California-Berkeley on the alleged abuses of Cal football strength and conditioning coach Damon Harrington does not, in fact, include the critically key attachment. The attachment concerns the selection of players who were interviewed for the report.

Compounding the disingenuousness or fraud here — choose your own word — is the UC Davis counsel’s office’s false and misleading representation to Concussion Inc. that the university responded fully and faithfully to a public records request for documents relating to the controversial Tanji review.

Tanji is the co-director of sports medicine at Davis. His review of Harrington was submitted four months after Cal football player Ted Agu died of a heart attack, brought on by his sickle cell trait, the university’s knowledge of which was provably concealed from investigators for the Alameda County coroner.

The death occurred during an extreme conditioning drill directed by Harrington, and in the aftermath came allegations of various abuses in his program. Some were contained in at least one suppressed Berkeley campus police report, focusing on the charge — well known since the beginning only to Concussion Inc. readers — that Harrington had instigated the November 2013 criminal assault by player J.D. Hinnant that sent teammate Fabiano Hale to the hospital with a concussion.

Tanji was the principal author of the university’s administrative review of Harrington, which was commissioned by Berkeley’s vice chancellor for administration and finance, John Wilton. The report absolved Harrington. Critics both on and off campus have noted Tanji’s blatant conflict of interest, which likely influenced the report’s whitewash tone and findings.

Specifically, Tanji is a close associate and mentor of Cal football team physician Dr. Casey Batten — himself identified in Agu family civil lawsuit depositions as having withheld information from county authorities and lobbied for a softened finding of the cause of Agu’s death. (The medical examiner would amend the original finding of simple heart failure, and add the sickle cell aspect, after discovery in the lawsuit, which the university settled earlier this year for $4.75 million.)

As explained here yesterday, the crux of this reporter’s California Public Records Act (CPRA) dealings with the Davis campus concerns production of the records surrounding Tanji’s report. A dispute turns on an “attachment” referenced therein and not disclosed to the media by the Berkeley campus last month at the time the university released the “full” text of the Tanji review.

At 6:48 Pacific time this morning, I received this email message from Michele M. McCuen, a legal analyst in the office of the UC Davis chancellor:

“I have checked with Dr. Tanji for a third time in regards to your request.  Please see below for his final response.

‘The attachments were a computer spreadsheet from UC Berkeley which I manually attached to my hard copy letter, so they were not saved on my hard drive.’”

This reporter’s email to McCuen, 33 minutes later, yielded an autoreply that she was out of the office until tomorrow.

As this article was being published, Charles F. Robinson, general counsel for Janet Napolitano, the UC system’s president, had not responded to the following query:

Dr. Tanji says he doesn’t have the attachment to his report to Vice Chancellor Wilton of Berkeley, regarding the review of coach Damon Harrington.[…] Will you now direct [Wilton] to provide Concussion Inc. with Dr. Tanji’s attachment document, as well as with the other documents in the vice chancellor’s records, commissioning the Tanji report and processing with other UC Berkeley administrators the Tanji report’s findings?

*****

Procedurally irregular on its face, the university’s handling of the CPRA matter goes further than irregular, exhibiting an element of sleaze from a major institution that is unmatched in my decades as an investigative journalist. What the whole thing boils down to is a combination of “follow the bouncing attachment” and “catch us if you can.”

In early July I followed up with the Davis CPRA office to find out if a full response to my May request for Tanji report-related documents was on track for its previously projected date of July 12. I was told that legal analyst McCuen, who was coordinating the project, was on vacation. On July 12, McCuen emailed me that the university needed another week, and would respond fully on or before July 19.

On the evening of the 19th, McCuen emailed me a reiteration of the Tanji review itself, as I reported yesterday, and said that was all there was. However, I noticed that Tanji concluded his report with a reference to an attachment — a line deleted from the version sent to me on June 30 by Dan Mogulof of Berkeley campus media relations.

McCuen spent all of yesterday comically insisting, in the face of all evidence to the contrary,  that “the attachment” was there. Apparently, this was a lawyer’s trick: the attachment to which she was referring was the attachment to her email to me, which contained the main body of the Tanji review. Whereas what I wanted, and clearly and repeatedly restated, was “the attachment to the attachment.” You see, it depends on what the meaning of “is” is.

Today, McCuen admitted the existence of the attachment to which I was referring, and forwarded Tanji’s assurance that he doesn’t have it. Or perhaps we should say Tanji’s claim that he “cannot find it.” (He says that in submitting the report to Wilton, he attached a hard copy of a “spreadsheet,” a copy of which he did not retain.)

A facsimile of my recent correspondence with McCuen and the UC president’s office’s Robinson has been uploaded to http://muchnick.net/ucdavisontanji.pdf.

*****

All this is happening while the CPRA office of Harrington’s Berkeley campus isn’t even bothering to play the shell games of its counterparts at Tanji’s Davis campus. The folks at Cal, it seems, are just trying to shut it down.

My request for Berkeley’s records on the review of Harrington’s strength and conditioning program now dates back three months. As best I can tell, Cal is pretending that media spokesperson Mogulof’s June 30 release of the Tanji report — minus the attachment, which is of keen public interest — constitutes fulfillment of the CPRA request. Let me assure Mogulof, and everyone, that it does not.

And now that we have the document citing Wilton, the vice chancellor, as having commissioned the Tanji report, we are no longer reduced (as is so often the case with public information fly-casting) to having to “prove” the university has records pertinent to my request. The truth is that either they have the records or they criminally destroyed them.

That is the full background of my query today to President Napolitano’s general counsel.

Once again, Concussion Inc. also is preparing possible state court action for disclosure of the suppressed March 2014 campus police report in which former football player Joey Mahalic detailed Harrington’s instigation of the Hinnant assault on Hale. Before I take that step, I am seeing if a copy of the report comes in over the transom. Multiple sources both on and off campus, whom I can’t yet name, have told me such a leak could be imminent.

In any event, look for publication in the near future of Concussion Inc.’s ebook The Ted Agu Papers, which appears to include many of the same secret documents acquired by the San Francisco Chronicle and the Berkeley graduate school of journalism’s Investigative Reporting Program — yet, for reasons not explained, not shared with the public by either of them.