by Irvin Muchnick
An Alameda County Superior Court judge is about to rule on Concussion Inc.’s motion that the state Public Records Act compels release by the University of California of a 141-page binder of police reports in the wake of the 2014 Ted Agu football conditioning death. These pages have been concealed from the public — including, in the case of all but 29 of them, from the coroner and the sheriff.
Part of UC’s legal response was a declaration by Margo Bennett, the Berkeley campus police chief, seeking to refute our exhibit to the court, from a production of campus administrators’ emails, of one dated April 21, 2014, under the subject line “RE: Ted Agu: Cause of death,” and consisting of a single sentence: “I wonder if we should bring Dan M into the picture?”
In her declaration, Bennett concedes that “Dan M” is Dan Mogulof, the assistant vice chancellor for executive communications and, as she puts it, “a Senior Communications and Public Affairs officer at the campus.” But she adds that the sender of the email, John Wilton — then the vice chancellor for finance and administration — was replying to an email from 25 minutes earlier.
The chief declares: “Mr. Muchnick is in error when he implies that Mr. Wilton’s question was directed to me. I was updating him as part of my responsibilities as his direct report [sic]. His email concerning Mr. Mogulof was directed to his Chief of Staff [Ann Jeffrey], not to me.”
In a declaration accompanying our reply brief, I state: “Chief Bennett herself is in error. I implied nothing. I quoted the email, of which Chief Bennett was the first of two listed recipients, and I submitted the full document as Exhibit 10.”
At the bottom of this article are the full texts of Bennett’s and my own representations to the court regarding this issue. The disputed Exhibit 10 is viewable at http://muchnick.net/bringindanm.pdf.
Bennett’s shaky contention that an email to her can be explained by something other than its plain language is just one of numerous examples of UC’s strained attempts at explaining campus police force coordination with public relations moves during what the university is now retrospectively casting as a criminal investigation, with noble intent, whose work product should be exempted from disclosure under the Public Records Act.
Earlier in our PRA lawsuit, we had shown the court a March 20, 2014, email in which Chief Bennett cautioned Vice Chancellor Wilton not to share with others documents she was forwarding to him because the case was “not available for a PRA request and I’d like to keep it that way.”
In her new declaration, Bennett explains: “[Wilton] was my direct supervisor. I had an obligation, as someone who reported directly to him, to provide him with the information he needed to appropriately supervise me in the work I did as Chief of the UC Berkeley Police Department. I briefed him on the investigation relating to the death of Mr. Agu to that end…. This was not a matter of ‘circumventing the CPRA,’ as Mr. Muchnick claims in his brief. It was an effort to comply with the requirements of the CPRA and maintain appropriate protocol for handling records I understand the CPRA itself protects.”
The Berkeley campus police fostered the Cal administration and athletic department cover-up of the Ted Agu death from the very first. Indeed, as I like to explain, this cover-up stretches back to three months before there was even a Ted Agu death. The toxic culture of the football conditioning program of Damon Harrington, an assistant under then head coach Sonny Dykes, was exposed in November 2013, when player J.D. Hinnant, after being incited by Harrington’s words and actions at a punishment drill session, criminally assaulted and battered teammate Fabiano Hale for skipping out on the session. While Hale lay at Alta Bates Hospital with a concussion and the campus police investigated, Hinnant dressed for that day’s home game against Arizona.
Doing his best Sarah Huckabee Sanders impersonation, Lieutenant Marc DeCoulode of the campus police told the San Francisco Chronicle that there was no evidence Sonny Dykes “had any knowledge of this.” On November 5, Cal Athletics issued a statement denouncing “a lot of misinformation being reported.”
The Alameda County district attorney would “defer,” and ultimately expunge, criminal charges against Hinnant. But after a bizarre February 2014 Harrington drill killed Agu in early morning darkness, another player, Joey Mahalic, was so conscience-stricken that he turned whistleblower. The table of contents of the 141 pages of campus police files that we are now seeking to daylight shows that they include an interview with Mahalic.
In April 2016, while the UC Regents were dotting the i’s and crossing the t’s on a $4.75 million wrongful death lawsuit settlement with Ted Agu’s family, I spoke with campus police Lieutenant DeCoulode. He cut me off.
“I don’t have any need to discuss the case,” DeCoulode told me. “It’s over and done with.”
So is Agu — one of nearly three dozen documented non-contact deaths so far this century in college football practices and conditioning sessions.
BENNETT DECLARATION EXCERPT
Exhibit 10 consists of three pages containing emails. The body text in the first two pages of emails is completely redacted so I cannot address those emails, nor am I authorized to disclose the contents of the attorney-client privileged communications that are redacted, even if I could see the unredacted versions. Mr. Muchnick focuses chiefly on the third page, which is an email from me to Mr. Wilton and his Chief of Staff, dated April 21, 2014, at 4:20 PM. In it, I forward him an email I received whose subject line reads “Ted Agu – Cause of Death.” In the body of my email to Mr. Wilton and his Chief of Staff, I write “More information regarding the release of the Agu cause of death.” As I have testified above (at paragraph 8), I had told Mr. Wilton that I would continue to update him with additional information we received in the course of our investigation. At the top of the page, in an email sent the same day approximately 25 minutes later, Mr. Wilton replies to me and his Chief of Staff asking “I wonder if we should bring Dan M into the picture?” As Mr. Muchnick states on page 8 (at line 23) of his brief, “Dan M” is Dan Mogulof, Assistant Vice Chancellor, Executive Communications, a Senior Communications and Public Affairs officer at the campus. But Mr. Muchnick is in error when he implies that Mr. Wilton’s question was directed to me. I was updating him a part of my responsibilities as his direct report. His email concerning Mr. Mogulof was directed to his Chief of Staff , not to me.
MUCHNICK DECLARATION EXCERPT
Chief Bennett herself is in error. I implied nothing. I quoted the email, of which Chief Bennett was the first of two listed recipients, and I submitted the full document as Exhibit 10.
… The email message cited in the above paragraph was one of numerous examples of evidently public relations-themed email messages among various UC Berkeley administrators in which Chief Bennett and another Berkeley campus police officer, Lieutenant Marc DeCoulode, were recipients, according to Respondent’s nearly 400-page production to Petitioner in September. The following paragraphs are based on my notes from my reading of those documents. With few exceptions, the bodies of these emails were redacted in the September production under a claim of attorney-client privilege. However, the dates, times, senders, recipients, subject lines, and names of attached files were preserved.
… Chief Bennett and Lieutenant DeCoulode were among the recipients of approximately ten email messages, from April 21, 2014, through April 23, 2014, with the subject line “Re: Ted Agu:- Cause of Death (Statement, Talking Points and Q&A).”
… In addition, Chief Bennett and Lieutenant DeCoulode were among the cc recipients of an email, at 4:47 p.m. on April 21, 2014, from Christopher Patti, the chief campus counsel, to Wesley Mallette, a public relations official in the athletic department. The subject line was “Re: Ted Agu:- Cause of Death (Statement, Talking Points and Q&A),” and there was an attached file named “Talking Points and Q&A – Ted Agu – Coroners Report CMP Comments- 04114.docx.”
Complete headline links to our Ted Agu series: https://concussioninc.net/?p=10877