Concussion Inc. Asks Court to Compel Release of University of California-Berkeley’s Secret 141-Page ‘Binder’ of Campus Police Reports Following 2014 Football Conditioning Death of Ted Agu

by Irvin Muchnick

In a motion invited by Judge Jeffrey S. Brand, I today asked the Alameda County Superior Court to order release of 141 pages of University of California-Berkeley campus police reports that were compiled in the aftermath of the February 7, 2014, death of Ted Agu of the Golden Bears football team.

The fatality, originally ruled a coronary episode, later was acknowledged to be from an exertional collapse associated with sickle cell trait. Agu, whose status as a trait carrier was known by the Cal medical, training, and coaching staffs, perished in an offseason conditioning drill designed and supervised by Damon Harrington, then the strength and conditioning assistant under head coach Sonny Dykes. Those two now hold the same positions at other schools — Harrington at Grambling State, Dykes at Southern Methodist.

A facsimile of the brief today by my attorney Roy S. Gordet, followed by my declaration and Gordet’s, is viewable at http://muchnick.net/motionfor141pages.pdf. In the next post, Concussion Inc. will publish the full text of these court filings.

This motion is the climactic procedural dispute of a Public Records Act (PRA) lawsuit filed against the UC Regents in April 2017. Today’s brief follows revelations that the university both had concealed the bulk of the 141 pages from the Alameda County Sheriff’s Office during the coroner’s investigation of Agu’s death, and had not disclosed the very existence of these disputed documents in the course of our PRA requests to the Berkeley campus compliance office and in the subsequent litigation.

Our PRA case aligns with the theme of a recently broadcast report on HBO’s Real Sports, which focused on the football conditioning death earlier this year of Jordan McNair at the University of Maryland. The Real Sports segment also explored Cal conditioning coach Harrington’s role in the Agu death, and joined the issue of the nearly three dozen non-traumatic fatalities in college football conditioning and practice sessions since 2000.

In our motion to Judge Brand, we argue:

• Under the facts of our case, the documents of the Cal campus police are not exempt from PRA disclosure.
• The use of tax- and tuition-subsidized funds for a $4.75 million settlement, in 2016, of a wrongful death by the Agu family “adds an extra layer of PRA-implied accountability” in this case.
• In light of the failure of Cal to produce an independent investigation of the Agu death similar to that undertaken by Maryland following the McNair death, public discussion inspired by the release of the disputed campus police records in our case “is the closest thing to achieving the goals of the Maryland report that the citizens of California could ever hope to achieve.” (Both Concussion Inc. and Real Sports raised questions concerning Harrington’s alleged incitement of a player-on-player assault three months prior to Agu’s death. The Alameda County district attorney “deferred” criminal charges against the assailant, J.D. Hinnant, who accepted campus administrative discipline and community service.)
• An email from Berkeley campus police chief Margo Bennett to then vice chancellor John Wilton exposed the university’s priority of secrecy in ways that consciously evade the obligations of the PRA. Bennett wrote, “[R]egarding the documents I gave you yesterday, please don’t share the papers…. The case is not available for a PRA request and I’d like to keep it that way.” It is believed, though not confirmed, that some or all of the documents to which Bennett referred were those under dispute in this motion.

“How the existence of the documents in dispute in this motion came to be revealed raises its own questions of public agency malfeasance,” Gordet states in today’s brief. After he shared with a UC Office of the President senior counsel the text of the table of contents I had acquired, the university lawyer, Michael R. Goldstein, acknowledged that it corresponded to what he termed “a binder” containing approximately 141 pages. One of the exhibits accompanying today’sfilingis my retyped version of the table of contents, which a campus source had shared with me.

The crux of the motion’s legal argument is the applicability of PRA Section 6254(f), which exempts from public release certain records of law enforcement agencies. We argue that this provision was not intended to permit public universities to hide behind campus police department productions related to what clearly were not classic criminal investigations but, rather, efforts to mitigate the institution’s legal exposure.

Gordet writes: “It is incongruous to permit Respondent to hand off to the campus police department responsibility for an investigation and then shout ‘Campus police files, stand back!’ with the expectation those files are automatically exempt, in this case and in the future. Most importantly, it is not in the public interest that the Binder be exempt in light of the facts and broader circumstances presented by this Petition and this Motion.”

Judge Brand has set November 21 for oral arguments.

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