Full Text of Concussion Inc.’s Last Argument For Release of the 141-Page Binder of Berkeley Campus Police Reports in the 2014 Ted Agu Death in Cal Football Winter Conditioning

Concussion Inc. to Court in Final Brief: The 141-Page Binder of Berkeley Campus Police Reports in the Ted Agu Football Conditioning Death ‘Should Be Turned Over Without Delay’
December 19, 2018
In Arguing That the Secret Ted Agu Death Berkeley Campus Police Reports Should Not Be Released, University of California Ignored Key Evidence. So We Gave It to the Court Ourselves.
December 20, 2018
Concussion Inc. to Court in Final Brief: The 141-Page Binder of Berkeley Campus Police Reports in the Ted Agu Football Conditioning Death ‘Should Be Turned Over Without Delay’
December 19, 2018
In Arguing That the Secret Ted Agu Death Berkeley Campus Police Reports Should Not Be Released, University of California Ignored Key Evidence. So We Gave It to the Court Ourselves.
December 20, 2018

Below are the full texts of the brief and the supporting declaration of Irvin Muchnick in today’s filing before Alameda County Superior Court Judge Jeffrey Brand, as explained in the previous post.

A facsimile of today’s brief is viewable at http://muchnick.net/suppresponsebrief141pages.pdf. A facsimile of Irvin Muchnick’s supporting declaration is at http://muchnick.net/muchnicksuppdec141pages.pdf. UC’s December 7 brief is at http://muchnick.net/ucsuppbrief141pages.pdf. Tomorrow Concussion Inc. will upload the three exhibits accompanying our brief today.


I. Introduction and Summary of this Supplemental Brief.

Respondent’s argument is easily and accurately summarized as follows: Any death to whichRespondent’s in-house campus police is assigned is presumptively a criminal investigation untilproven otherwise. The problem with the argument is that the Court specifically requestedevidence of an investigation into criminal activity or merely suspected criminal activity.

Obviously no evidence exists, ergo Respondent submits nothing more than longer versions of thesame type of self-serving and tautological declarations submitted with its original response briefin opposition to this Motion. Respondent’s “evidence” is a superficially more elaborateregurgitation of the testimony of campus police employees willing to do the bidding of theiremployer by protecting their employer and their own jobs, but even these biased declarantscannot come up with details or documented evidence of a targeted investigation of a crime orreasonable suspicion of same.


II.Respondent Has Again Changed Course Mid-Stream by Futilely Seeking Refuge in Section 6255.

As emphasized in Petitioner’s Response Brief, Respondent intentionally avoided any reliance onthe public policy principles of Section 6255. That ship sailed. Respondent waived its right tomake the Section 6255 arguments and the Court’s invitation to submit proof of a criminalinvestigation was not an invitation for Respondent to present completely new argumentsRespondent intentionally declined to assert with its opening brief. Faced with the impossible-to-achieve task of presenting evidence of a criminal investigation, Respondent scrambles to makepublic policy arguments under Section 6255.

There was a reason Respondent consciously avoided making public policy arguments earlier:Respondent has no evidence that withholding the documents in the Binder will promote thepublic interest. Thus, Respondent can point to no evidence and to no specific instances where thegeneral types of public policy arguments favoring non-disclosure quoted from the case law byRespondent have any application to this specific case. For examples, there is no witness whoseprivacy, no less her life, will be jeopardized if her name is made public; there is no reference to aspecific type of police interrogation methodology that will be compromised if documents in theBinder are made public; there is no victim whose life will be turned upside down if her identity isreleased. There is only a parroting of the general abstract language from the case law aboutreasons for applying public policy under any Section 6254 exemption or under 6255. Respondentmakes feeble attacks on Petitioner’s overwhelming public policy arguments applying facts, andRespondent attempts to unfairly demean and mischaracterize Petitioner’s important mission in shedding light on Respondent’s actions resulting in the death of a student along with Respondent’s attempts to cover up what happened and Respondent’s culpability.


III. No Evidence of Criminal Investigation Submitted Besides Self-Serving Testimony.

Respondent presents no evidence that will support a conclusion that there was an investigationdirected at criminal activity, locating somewhere a potential criminal suspect, or furtherinvestigation into a targeted suspect. In possible support of such claims related to a criminalinvestigation, Respondent could have submitted contemporaneous notes by a police officer orother first responder, testimony concerning specific conversations involving investigators, emailmessages within the campus police department or to persons outside the campus policedepartment, and many other types of evidence that could demonstrate that there really was a“criminal” investigation or that there was any person within 100 miles of the incident who wasconsidered a criminal suspect. Indeed, there is no use of the term “suspects” or “victim” in thedeclarations Respondent submits. The Court’s Order requested evidence, not testimonials abouthow seriously Respondents’ campus police take their job responsibilities.

The new iterations of declarations merely support Petitioner’s thesis that Respondent abusesSection 6254(f) by using it to create a shield against disclosure of investigations that should begiven light. Evoking Chief Bennett’s previously quoted statement about keeping documents awayfrom CPRA oversight, such routine tactics can be manipulated by Respondent to maintain thesecrecy of investigations and documents that would otherwise be subject to required CPRAdisclosure.


IV. Respondent Declined to Submit the Testimony and the Notes of the First RespondingCampus Police Officer.

Stephanie Martinez testified at her deposition that she “was the responding officer at the scene”[of Ted Agu’s death.] (Muchnick Declaration, Exhibit 12, page 9) Officer Martinez gavetestimony at her deposition about the persons she interviewed at the scene and that she took notes.(Page 11 of Exhibit 12) She also confirmed that she had been informed before arriving at thescene that Agu had a “pre-existing condition”, namely “Sickle Cell [sic]”. (Page 23 of Exhibit12). Because Respondent has avoided submitting any testimony of Officer Martinez and hernotes, indeed Respondent has not even made a glancing reference to Officer Martinez, the personwith the best knowledge of what Respondent did at the very inception of the campus policeintervention at the scene, the conclusion is obvious: Officer Martinez’s testimony and her noteswould be harmful to Respondent’s untenable position that the campus police presence in truthwas an investigation into criminal activity or that there was a true criminal aspect to theinvestigation.

As appears at page 11 of Exhibit 12:

Q If you go to a scene and a witness tells you, “I saw X happen at such and such time,” thatsomething that’s important for you to put in your report.

A [Officer Martinez] If it’s pertinent information, correct, yes, we put [sic] in the report.

And as appears at page 28 of Exhibit 12:

Q Did you have any involvement, whatsoever, in assisting Officer Bennigson with theinvestigation?

A [Officer Martinez] No.

Thus, the lack of criminal suspicion resulted in Officer Bennigson not even consulting with thefirst officer on the scene, on top of the fact that Respondent has found no reason to submit the first responding officer’s detailed reports to the Court. Based on these and other on point deposition excerpts highlighted in Exhibit 12, it is clear that Officer Martinez would testify that her questioning of witnesses at the scene had nothing to do with seeking the perpetrator of a crime and there is nothing in her reports that can support Respondent’s conclusory statements in the declarations submitted with its Supplemental Brief. Witnesses at the scene would be the persons in the best position to assist with finding such a perpetrator if anyone, including Officer Martinez, had believed that there really was a perpetrator.


V. Respondent Cannot Hide Behind Secrecy or Privacy Concerns in Declining to SubmitSupporting Evidence in the Binder.

Petitioner previously submitted as Exhibit 10 the Table of Contents of the Binder at issue in thisMotion. The section headings reveal the kinds of documents within. It should be assumed thatamongst all of the documents, including presumably notes of Officer Bennigson based onstatements in his Declaration, there is no documentable evidence therein that is responsive to theCourt’s request for evidence of a criminal investigation or reasonable suspicion of criminalactivity. First of all, pursuant to Section 6254(f), if claiming the exemption, under the expresslanguage of the statute, Respondent was already required to have provided extensive details aboutany such reports to a requestor, like Petitioner, even if the exemption were deemed to beapplicable. Thus, assuming arguendo there were information in these 141 pages being withheldthat would be evidence of a criminal investigation, Respondent has no excuse not to summarizein detail for the Court and the Petitioner their contents as part of its response to the Court. If therewere any evidence responsive to the Court’s request for evidence of a criminal investigation, thiswould have been the time for Respondent to produce such evidence, even if just in summary form.

Secondly, Respondent had another alternative before submitting any supportive evidence. TheCourt has entered a stipulated protective order in this case. If there were any supportive evidencethat Respondent believed was confidential, Respondent had the option to submit its supportiveevidence pursuant to the protective order so as to maintain its confidential status. Again,Respondent declined this option.


VI. Respondent Gave Only 29 Pages to the Sheriff’s Office, Not the Entire Binder.

Petitioner’s response brief placed front and center that according to testimony of LieutenantBowers, Respondent’s campus police handed over to the Sheriff’s Office only 29 pages and notall of the pages in the Binder. (previously submitted Exhibit 4 consisting of Bowers’ depositiontestimony) There is no testimony or analysis in Respondent’s previous briefing or in thisSupplemental Brief offered concerning the 29 pages that was conveyed or about anycommunications with the Sheriff’s Office. Why not? Respondent continues to try to ignore thissignificant fact that establishes that most if not all of the Binder was never used, and probablynever intended to be used, for any criminal prosecution by the Alameda County Sheriff or by theAlameda County District Attorney. Respondent continues to be at a loss for words on this major point.

These omissions are evidence that there was no criminal activity, no criminal activity suspectedor investigated, and nothing in the Binder that contradicts these conclusions. Indeed, it is furthertelling that no declaration from Lieutenant Bowers was obtained in support of the Court’s requestfor evidence of a criminal investigation, presumably because there was nothing truthful thatLieutenant Bowers would testify to that would support the conclusion that anyone from U.C.Berkeley’s campus police department and the Alameda County Sheriff’s Office had said orwritten anything that would support a conclusion that the Sheriff considered this matter to be partof a criminal investigation or that there was any remote chance that there would be a criminalprosecution. Or that there was a victim of a crime. (It is telling that none of the testimony ordocuments submitted uses the word “victim”. If there was never a victim, there was no crime.)


VII. Respondent Identifies Two Other Investigations but Provides No Substance About Them.

The Court requested to know whether Respondent “…conducted any other investigationregarding the death of Ted Agu…”

Respondent states in its brief: “The Regents, including UC Berkeley, conducted anotherinvestigation regarding the death of Ted Agu, concerning the strength and conditioning program,wholly apart from the UC Police Department’s criminal investigation (and UCPD played no rolewhatsoever in that other investigation).” This statement’s intentional ambiguity is deceptive.

According to the testimony of Mr. Gilman, these reports were only about the strength andconditioning programs and did not investigate the death of Ted Agu. If Respondent had submittedthese reports, the Court would have seen how little substance they contain and why they shouldnot be accurately characterized as investigations into the incident in which Ted Agu tragicallydied. As set forth in the quotations in the Supplemental Muchnick Declaration being submitted concurrently, the reports combined had three fleeting and superficial references to Ted Agu. To allow the Court to see for itself the true nature and content of these reports, Petitioner submits with the Supplemental Muchnick Declaration the Tanji report as Exhibit 13 and the Table of Contents of the Joy-Brazil Report as Exhibit 14. The complete Joy-Brazil Report is available on the web athttps://chancellor.berkeley.edu/sites/default/files/sc_program_review_final_report.pdf. A cursoryreview of these reports reveals that they are in stark contrast to the comprehensive investigationundertaken by the University of Maryland in the Jordan McNair death or the type of investigativereporting that Petitioner is attempting to bring before the public by seeking the responsive documents.

A review of the strength and conditioning program is a far cry from an investigation into the detailssurrounding what happened to Ted Agu the morning of February 7, 2014. The only investigation into the Agu death was undertaken by the campus police department pursuant to the general policies described in the Bennigson Declaration. Again, those policies serve to protect the secrecy of campus police activities regardless of whether their activities and investigations concern criminal conduct or pursuit of a perpetrator of a crime. As stated in Petitioner’s brief, Section 6254(f) should not be used by an in-house police department beholden to a public university’s higher officials so as to erect an artificial barrier against legitimate CPRA inquiries concerning the conduct of the campus police or by the university’s officials where there is no suspected criminal activity.


VIII. The Court’s November 20, 2018 Order Was Not an Invitation to File a Motion forReconsideration.

Respondent’s Supplemental Brief re-argues points that the Court has already decided. Petitioner will not repeat its earlier arguments. Petitioner feels compelled to point out that Respondent continues to base many of its arguments on trivial factual distinctions, this time between the facts in the case law relied on by the Court vis-à-vis the facts in the instant case while ignoring the more significant rationales for the holdings of the cases relied on by the Court.


IX. Objections to the Form and Content of Respondent’s Declarants’ Testimony.

Petitioner objects to the many conclusory statements in the Bennigson and Bennett Declarations.It is well established that declarations should state evidentiary facts rather than ultimate facts orlegal conclusions. Ware v Stafford (1962) 206 CA2d 232, 237. (“To comply with requirementsthat they be clear and certain, allegations in an affidavit must show facts and circumstances fromwhich the ultimate fact sought to be proved may be deduced by the court.”) The facts should beset forth positively; a declaration that states only the conclusions or opinions of the declarant isinsufficient. Tri-State Mfg. Co. v Superior Court (1964) 224 CA2d 442, 445. A court is “entitledto ignore” a declaration that contains “hearsay, opinion and supposition.” Inselberg v. Inselberg,(1976) 56 Cal. App. 3d 484, 489. The weight to be accorded Respondent’s declarations is stillfurther diminished by the bias and self-interest of the declarants. Taliaferro v. Taliaferro, (1962),203 Cal. App2d 649, 651.

Thus, a statement such as the following found at Paragraph 12, page 8 of Chief Bennett’sSupplemental Declaration, namely “If the Binder were disclosed to the public, it would reveal thematerials Mr. Bennigson ‘thought were relevant to his investigation'” is not admissible, besidesthe fact that it is deficient in providing what Respondent was charged with by the Court. There isno factual support for this statement – it is conclusory. The Bennett Declaration even appears topresent legal argument and draw legal conclusion as she addressed specific points of the Court’sNovember 20, 2018 Order. This is inappropriate on many levels. See Ware v. Stafford, supra, atpages 237-38. It is highly inappropriate to present a lay declarant addressing the legal issues ofthe Court Order. In any case, it is to no avail.


X. Conclusion.

Respondent cannot meet its burdens to show that it is in the public interest to hide these documents. The Court requested evidence of a criminal investigation or reasonable suspicion of criminal activity. Respondent instead gives legal argument and abstractions related to policies underlying what the in-house campus police department did in this case. There was no suspected criminal and there was no criminal investigation. Under the reasoning of the Court’s Order of November 21, 2018, the Binder should be turned over without delay.


Respectfully submitted,

Roy S. Gordet




I, Irvin Muchnick, under penalty of perjury, under the laws of California, state as follows:

1. Except as otherwise indicated, I make these statements based on my own knowledge. Iam competent to make these statements.

2. I obtained the transcript of the deposition of Officer Stephanie Martinez of the Berkeleycampus police department from the records of the Agu family’s lawsuit against Respondent inAlameda County Superior Court, Case no. RG14735588. Attached as Exhibit 12 is a true andcorrect copy of this transcript (without the glossary pages).

3. The declaration of Nils Gilman in support of Respondent’s supplemental opposition briefreferences two reports reviewing the football strength and conditioning program: one by Dr.Jeffrey L. Tanji, M.D., and the other by Dr. Elizabeth Joy and the Hon. Wayne D. Brazil.\

4. I received a copy of the Tanji report in an email from Berkeley campus spokesperson DanMogulof on June 30, 2016. Attached as Exhibit 13 is a true and correct copy of the report, whichconsists of four pages. In my reading, the report makes reference to the Ted Agu death only in thefollowing passage: “The level of medical monitoring and awareness of student-athlete preexistingconditions, current injuries and distress are appropriate both in a general sense and in the specificcase of Ted Agu, the student-athlete who met an untimely death in February 2014.[…] In thespecific case of Ted Agu, I reviewed the sequence of events as they unfolded with the headfootball athletic trainer, the graduate assistant athletic trainer, the strength coach and the teamphysician and there was consistency and uniformity on their description of events. The autopsyreport from the County Coroner’s Office became public the day I arrived for my interviewsconfirming the diagnosis of hypertrophic cardiomyopathy (HCM) as the cause of death for TedAgu. From the perspective of a sports medicine physician who has practiced for nearly thirtyyears and has dealt with athletes with HCM, the genetically acquired condition could result insudden cardiac death at any time, not just as the result of sport participation.

5. I have read the Joy-Brazil report, formally entitled “Ideas, Perspectives and Aspirations:Suggestions about Ways to Further Protect the Health of Athletes in the Football Program” whichis published at the U.C. Berkeley website at https://chancellor.berkeley.edu/sites/default/files/sc_program_review_final_report.pdf. Attachedas Exhibit 14 is a true and correct copy of the first three pages of the report: the cover and table ofcontents pages. The full report consists of 43 pages and, in my reading, contains a singlereference to the Ted Agu death, in the following passage: “During the early phases of our workwe also conducted some research into the evidentiary records that were generated during thelitigation that followed Ted Agu’s death. While the Athletic Department already had maderesponsible use of the learning that was generated by the litigation arising out of this tragedy,reviewing this material helped sensitize us, as outsiders, to some issues and challenges.”


Executed at Berkeley, California on December 18, 2018.

Irvin Muchnick

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Concussion Inc. - Author Irvin Muchnick