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:
“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’s filing is 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