“Concussion Inc. to Judge: Sanctions May Be Required to Stop University of California’s Stonewall Tactics in Ted Agu Football Death Public Records Case,” https://concussioninc.net/?p=13075
“Full Text of Our Reply Brief on University of California’s Arrogant Refusal to Produce a Substantive Legal Response in Public Records Act Litigation Over Ted Agu Football Death Cover-Up Documents,” https://concussioninc.net/?p=13082
by Irvin Muchnick
At a hearing in Alameda County Superior Court on May 17, Judge Jeffrey S. Brand invited me to include in an upcoming motion on privacy issues a request for release of a 141-page report by the Berkeley campus police on the 2014 death of Cal football player Ted Agu. And on June 11 my attorney Roy S. Gordet did include this demand in the latest round of briefs in my California Public Records Act (CPRA) petition seeking production by the University of California of additional internal documents related to the Agu incident.
(In 2016, UC came to a $4.75 million settlement of the Agu family’s wrongful death lawsuit.)
In lieu of making any legal argument, UC last week simply told the court that our motion was “premature.” How well this sits with Judge Brand, who two months ago expressed from the bench some sympathy for our concern that the case was proceeding too slowly, may become clear just prior to or at the hearing scheduled for next Wednesday, August 1.
In the meantime, it’s useful to review what we already know about the campus police report and the university’s nearly four and a half years of keeping it under wraps. Our CPRA case shows that UC until quite recently didn’t even acknowledge the existence of this document — even though its exposure is plainly in the record of the Agu family suit.
Here is the full chronology.
February 7, 2014
Ted Agu collapses and dies on a campus hillside during an early morning drill as part of the “voluntary” offseason conditioning program of Damon Harrington, an assistant to head football coach Sonny Dykes.
February – June 2014
The campus police report is generated. It consists of 16 parts, beginning with the initial incident report and concluding with the signing off by the Alameda County Sheriff’s Office of the finding by the county medical examiner, Dr. Thomas Beaver, of “hypertrophic cardiomyopathy” (heart failure without obvious cause) as the cause of Agu’s death.
(Concussion Inc. has acquired the report’s table of contents.)
March 20, 2014
During the course of the compilation of the report, the chief of the campus police, Margo Bennett, says in an email to John Wilton, a senior vice chancellor:
“John, regarding the documents I gave you yesterday, please don’t share the papers … l put them together for you (and Ann if needed) only. If others need the information, I am happy to give a verbal briefing, but not documents. The case is not available for a PRA [Public Records Act] request and I’d like to keep it that way.”
The documents to which Bennett refers very likely are portions of the report now in dispute, but this has not been definitively established.
July 16, 2015
Lieutenant Riddic Bowers, head of the Alameda County Sheriff’s Office Coroner Bureau, is deposed in the Agu family lawsuit. It was Bowers who had closed the county death investigation file the previous June by signing off on Dr. Beaver’s autopsy findings.
Under questioning by a lawyer for the Agu family, Bowers concedes that the sheriff’s office did not receive all the materials on the death that were compiled by the Berkeley campus police. Those materials were found to have included a total of 141 pages, only 29 of which were faxed to the sheriff.
Since the 141-page report was an evolving document, the number of pages withheld from the sheriff may have been less than 112 (141 minus 29). The very last page, for example, records Bowers’ own closing of the case. But it is clear that a substantial number of pages, probably well more than 100, were concealed by the university.
And at least one of the topics within those pages that were not disclosed may well have been Cal’s knowledge that Agu carried the sickle cell trait (SCT). During his own deposition in the family lawsuit, football team Dr. Casey Batten would admit that he did not tell coroner Beaver of Agu’s known SCT when Batten was pushing Beaver for a finding of hypertrophic cardiomyopathy as the cause of death. As a result of the litigation investigation by the Agu family lawyers, Dr. Beaver would compel the county to amend the original autopsy to note that an exertional sickling episode had contributed to Agu’s death.
May 4, 2018
Before proceeding with the next entries of this chronology, I want to point out that emails between my attorney, Gordet, and a UC lawyer are on the public record of our CPRA case. In a rather unorthodox practice, the university has cut-and-pasted verbatim long stretches of communications between the two sides — indeed, often substituting them for any external narrative development of factual or legal arguments.
On May 4 of this year, during case management discussions, my attorney Gordet proposes to a UC lawyer the inclusion of a new category for the “framework” of document requests mandated by Judge Brand. We call the category “7. Reports, interviews, and other materials prepared during the period of the Alameda County Sheriff’s Office investigation to support the Ted Agu autopsy by the Alameda County Medical Examiner.”
May 9, 2018
The university lawyer replies to Gordet, “The category is fine. I don’t know if anything like that exists. Given the breadth of your Algorithm search we conducted at your request, I would imagine that we would have captured any such documents and you have the results of that search.[…]”
May 17, 2018
Judge Brand invites further briefing by the parties on privacy issues, approves the 141-page campus police report as a document category of the CPRA request, and agrees to the petitioner’s inclusion of a request for the report in the next brief.
May 21, 2018
Gordet emails the UC lawyer in pertinent part:
“I am requesting production of the 141-page campus police report on the Agu death. In the recent Joint Report to the Court, you indicated your agreement that if such documents exist, they are not FERPA-barred. And at last week’s hearing, we seemed to establish a prospective protocol that newly identified and undisputed records would be released ‘on a rolling basis.’
My client has written earlier about this report. Today he uploaded the full transcript of the July 16, 2015 deposition of Lt. Riddic Bowers to this link: http://muchnick.net/bowersdeposition.pdf.
The discussion of the 141-page report runs roughly from p. 44 through p. 52 of the deposition, and concludes with this exchange:
Q. Are you aware that the University of California Police Department report is not 29 pages that were sent to you, but it’s actually 141 pages?
A. Based on what you told me, I’m aware of that.
Q. Okay. Do you have any idea why the entire report was not sent?
A. I do not.
It would be very helpful if you could provide this campus police report ASAP, or at least your intentions vis-à-vis this report, before Petitioner’s filing of the preliminary motion on privacy issues referenced in the Court’s most recent Tentative Ruling.”
June 11, 2018
Our opening brief on privacy issues includes the section headed “VII. The 141 Page Campus Police Report Must Be Disclosed Without Delay,” and accompanying arguments.
June 19, 2018
The university’s response brief states, “The motion is premature,” and refuses to make any arguments on the merits, including with respect to the 141-page campus police report.
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