by Irvin Muchnick
In the strongest evidence yet from the “Ted Agu Papers” that the University of California-Berkeley covered up extreme and arguably criminal acts by football strength and conditioning Damon Harrington, an Alameda County sheriff’s lieutenant testified in a civil lawsuit that the county received from the campus police only 29 out of 141 pages of reports, supplemental reports, and witness statements on the background of Agu’s February 2014 death during a conditioning drill.
The withheld materials appear to include a statement, reported here earlier, by a player suggesting that Harrington, three months before the death incident, had incited another player into physically assaulting a teammate, in a case in which the Alameda County district attorney would decide to “defer” prosecution.
As this story was being published, on Monday afternoon in California, neither the university nor the district attorney’s office had responded to requests for comment.
Concussion Inc. is assembling what we are calling “The Ted Agu Papers” — primary-source documents shedding additional light on the death of the 21-year-old pre-med student, a football team walk-on, whose parents recently settled, for $4.75 million, with the UC regents in state court. These collected papers will be published in the near future as an ebook, with all proceeds being forwarded to an entity spearheading research and education on sickle cell trait, which contributed to Agu’s death.
On July 16, 2015, Lieutenant Riddic Bowers of the county sheriff’s office was deposed in the Agu family lawsuit. The county coroner is a division of the sheriff’s office, and one of the objectives of the plaintiff attorneys in securing Bowers’ testimony was to isolate facts surrounding Cal’s concealment from county officials of knowledge of Agu’s sickle cell condition. After this evidence got unpacked, the coroner made a rare, nearly unprecedented, amendment to the original finding of cause of death — adding that sickle cell trait had helped bring about Agu’s fatal collapse from a heart attack during a brutal hill-climbing exercise that was custom-designed and directed by strength coach Harrington.
But in addition, the output of the lieutenant’s deposition included evidence of Cal’s apparent hiding from county authorities more than 100 pages of campus police materials in the investigation following Agu’s death.
Almost certainly, one of the withheld documents was a March 2014 statement by former player Joey Mahalic, in which he discussed the circumstances of J.D. Hinnant’s severe beating of Fabiano Hale the day after Hale missed a conditioning session on Halloween of the previous year. Mahalic testified that Harrington, in addressing the attending athletes on Octobber 31, 2013 — who were punished collectively with an extra-extreme set of rolls and bear crawls that left a number of them vomiting — dramatically slammed his fist into his palm and instructed anyone who was unhappy with Harrington’s imposition of consequences for Hale’s absence to take up the matter directly with their teammate. The chain of events is interpreted by many observers as the coach’s incitement of Hinnant’s vigilante response.
In this article, we identify for the first time Joey Mahalic as the player who made the police statement regarding Harrington’s role in the Hinnant-Hale incident (and who would repeat the information during his own deposition testimony in the Agu case the following year).
Previously, this reporter had said that the identities of the deponent players would be revealed when the Agu Papers ebook was published. In this instance, we have moved up the disclosure because of evidence that Mahalic’s identity is apparent in several public documents, and is also part of escalating campus discussion and faculty forum emails concerning multiple scandals in Cal athletics. I have been emailing Mahalic regularly, without response; yesterday I emailed again simply to alert him that his name would be coming out in this story.
The university’s Public Records Act office is currently considering our request for release of the March 2014 Mahalic police statement, to which our coverage first referred at https://concussioninc.net/?p=10996. A spokesperson for Nancy O’Malley, the county district attorney, has refused to say why her office has not asked the campus police for the statement, as part of the technically still-open investigation of Hinnant’s assault on Hale.
Here are relevant excerpts from the transcript of the deposition of Lieutenant Bowers:
A. [After the pathologist renders a cause of death,] the deputy will fold that into their investigation so they can determine the manner of death, based on the circumstances. When — when they’ve done all of that and that is complete, they will submit the entire packet to a supervisor for a review.
In this case, that happened to be me…. As supervisors, we all review cases for closure.
Q. … Now what I want to do is mark as Exhibit Number 2, Composite Exhibit 2, your entire file, all the documents that your office has produced regarding Ted Agu’s death…. And you can confirm on the record under oath that that is all the documents that the coroner’s bureau has regarding Ted Agu?
Q. All right. Did you ever have any discussions personally with anyone from the University of California?
A. I’m — I believe that I probably spoke with someone with the UC Police the day of the event regarding the event.[…]
Q. All right. At some point in time, did — would somebody in your office or in your unit have called or sent a request over to the University’s police department asking for the police report?
Q. And would you typically expect the police department that investigated the death to provide you with a complete copy of their report?
A. I would.
Q. All right. I’d like to go through your file, and I want to identify everything that was given to you or to your office — I keep saying to you — to the coroner’s office by the University of California.
First of all, did the University of California ever provide your office with any of Ted Agu’s medical records?
A. I do not know.
Q. All right. If they’re not in the file —
A. If they’re not in the file, then I would say, no.
Q. Okay. They did provide you with what was supposed to be a police report, correct?
A. That’s correct.
Q. All right, let me show you a fax dated February 20, 2014, directed to the coroner’s office, Attention Lorenzana, from UCBPD Records Department Maldanado.
Is UCBPD, is that University of California Berkeley Police Department?
Q. Why don’t you take a look at that fax on February 20. Is that a fax that your office received from the University police department?
A. Given that it’s in my case file and it is a fax transmission, I’m going to say, yes.
Q. And how many pages were faxed to your office on February 20th, including the cover page?
A. It says eight.
A. Okay, Let’s go through, just real quickly, I want to identify each of them.
The first page titled Incident Report, it says Case Description Standard Report, correct?
Q. All right. Then the second page is an Incident Report-Additional Persons, and it identifies Michael Jones?
Q. And the next page is a narrative from Officer Stephanie Martinez?
Q. All right. Thew next page an incident supplement report. Down at the bottom it says Reporting Officer Harry Bennigson?
Q. All right. The next page is another Incident Supplement Report-Additional Persons, and it’s regarding [then coroner] Dr. Thomas Beaver.
Q. And the next page is a supplement narrative from Harry Bennigson regarding Dr. Beaver?
Q. All right. And then the last page is the University of California Police Department case report?
Q. Okay. Now, I assume Detective Lorenzama, in her normal course of business, would have reviewed that?
Q. And that was, again, faxed over to Detective Lorenzana by the University?
A. That’s correct.
Q. On May 7th?
Q. How many pages were sent on May 7th to your office, including the cover page?
A. It says 21.
Q. Okay. Are those two faxes that were sent over — the 21 pages and the eight pages, that the University police department sent to the coroner, is that all of the documents that were provided to your office by the University police?
A. As far as I know, yes.
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.
Q. Would it surprise you to know that there are witness statements that the University police department took of two players that are not included in the reports they sent you?
A. Given that there are a significant number of pages that aren’t here, it wouldn’t surprise me that there would be lots of things in there.
Q. Okay. We went through the police file that the University sent to you. It did not include the — the statements of [another player] and Joey Mahalic, correct?
A. I don’t remember the specific names that were — that were in there.
A. If they were.