by Irvin Muchnick
Alameda County Superior Court Judge Jeffrey S. Brand has asked for briefing on the issue of whether what the University of California calls a 141-page “binder” of Berkeley campus police records, produced in the aftermath of the February 7, 2014, death of football player Ted Agu, is exempt from disclosure under the state Public Records Act.
In our opening brief this week, Concussion Inc. argued that the answer is “no.” After response and reply briefs, there will be a hearing before Judge Brand on November 21.
Here is what is at stake in the court’s upcoming ruling on the interpretation of Government Code 6254(f) as it applies to the mystery 141 pages.
1. Reporting at this site has established again and again that there was a cover-up in the Agu offseason football conditioning drill death. The cover-up has multiple layers.
First in chronological order is the matter of the cover-up by the Golden Bears football program of the circumstances of player J.D. Hinnant’s “code red” attack on teammate Fabiano Hale, three months prior to the bizarre hill run and rope pull drill that killed Agu. Hinnant’s beatdown of Hale, which resulted in a concussion and a night of hospitalization, was retribution for Hale’s having skipped a conditioning session under then head coach Sonny Dykes’s strength and conditioning assistant, Damon Harrington; the absence, in turn, had prompted Harrington to drop extra sets of punishment drills down on those present and suggest that they hold absent teammates accountable “by any means necessary.”
The table of contents of the 141-page campus police binder shows that it includes at least one interview shedding light on this incident. This is significant, since the university’s negligence in Agu’s death, ultimately the subject of a wrongful death lawsuit by the family, had multiple components; one of them was the out-of-control culture of Harrington’s program.
Second, Cal knew that Ted Agu was a sickle cell trait carrier, and football team head physician Dr. Casey Batten (now on the medical staff of the Los Angeles Rams) spun Alameda County coroner Dr. Thomas Beaver away from a finding of an exertional sickling attack and toward a generic explanation that Agu had suffered heart failure. It took more than a year for the inaccurate initial cause of death finding to be reversed. The reversal only came about after deposition testimony in the family lawsuit exposed Batten’s misleading phone call to Beaver in the first day after the death.
Third, Cal concealed from the Alameda County Sheriff’s Office, which was gathering information on behalf of the coroner, all but 29 of the 141 campus police report pages now in dispute in our Public Records Act case. Further, the university did not list the 141-page binder during so-called meet-and-confer discussions. As my attorney Roy Gordet pointed out to the court, it was on us to put this obviously relevant batch of documents “front and center” in the current motion.
A possible smoking gun exists in the form of an email by campus police chief Margo Bennett that exposes what appears to be the university’s calculated law-evading secrecy in its handling of the binder. Six weeks after Agu died, Bennett gave hush-hush cautions to John Wilton, a senior vice chancellor, as she forwarded certain documents. (In our brief, we asserted that these were likely documents now in the disputed binder.) Don’t let anyone else see them, Bennett wrote in her cover note: “The case is not available for a [Public Records Act] request and I’d like to keep it that way.”
2. A central purpose of the Public Records Act is to shine a light on public agency malfeasance.
There is clear evidence that UC may have engaged in malfeasance both in the root events documented by the disputed pages and in withholding those pages from the sheriff and in our case.
3. $4.75 million of public funds changed hands in the private Agu family settlement.
This factor “adds an extra layer of Public Records Act-implied accountability,” our brief says.
4. The Agu death is a local example of a global story.
Nearly three dozen college football players have perished this century — not traumatically from in-game collisions, but non-traumatically, in extreme conditioning and practice conditions. The Agu death has dovetailed with national media focus, via reports by ESPN and by HBO’s Real Sports, on the conditioning death of Jordan McNair at the University of Maryland, and its parallels to Agu’s and others’.
5. Maryland produced an outside investigation of McNair’s death. “Petitioner submits that public discussion that would be inspired by the release of the Binder is the closest thing to achieving the goals of the Maryland report that the citizens of California could ever hope to achieve.”
6. UC’s claim that campus police reports are sacrosanct is bogus.
Indeed, Cal previously released to both the Daily Cal newspaper and Concussion Inc. a redacted version of the campus police incident report on the November 1, 2013, J.D. Hinnant-Fabiano Hale altercation.
7. Case law, as well as the Public Records Act’s purpose and policies, is on our side.
According to earlier interpretations of Section 6254(f) of the Public Records Act, each case must be decided on its own facts. The public agency, not the petitioner, has the burden of proof. The exemption for law enforcement records is discretionary and not absolute — and here, producing them rather than continuing to conceal them is in the public interest. The facts further demonstrate that the 141 pages do not document the investigation of a homicide or suicide, and their purpose was not to prosecute a crime but to assist the university in mitigating its eventual legal exposure in the Agu family lawsuit.
“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…. The Court should order Respondent to disclose the entire Binder to Petitioner along with any administrative correspondence or comments about the Binder along with any other files the campus police department possesses related to Agu, Agu’s death, and Respondent’s conduct in the aftermath of Agu’s death.”