by Irvin Muchnick
Late yesterday we published Concussion Inc.’s closing written argument to Alameda County Superior Court Judge Jeffrey Brand in the dispute over whether the University of California should be compelled to turn over a 141-page binder of Berkeley campus police reports in the extreme conditioning drill death of football player Ted Agu.
Agu perished on February 7, 2014. Two years later the UC Regents and the family came to a $4.75 million settlement of a wrongful death lawsuit, following exposure of the fact that the Alameda County medical examiner, from whom football team doctor Casey Batten had withheld information regarding Agu’s sickle cell trait, originally got the cause of death wrong.
In April 2017 this reporter sued the university under the California Public Records Act. Judge Brand, who tentatively ruled in our favor on this climactic issue of the campus police reports, has indicated he will make a final ruling in the next month.
In yesterday’s brief, we point out that the court had tasked UC with demonstrating that the disputed binder of documents should be protected under the statute’s exemption for law enforcement records on grounds of “reasonable suspicion of criminal activity.” Yet the university chose to make no mention at all of the report of the campus police officer on patrol, Stephanie Martinez, who was the department’s first responder when Agu fatally collapsed on a campus hillside. We submitted ourselves the deposition by Martinez in the family’s lawsuit; it is viewable at http://muchnick.net/martinezdep.pdf.
As our attorney Roy Gordet wrote: “Because Respondent has avoided submitting any testimony of Officer Martinez and her notes, indeed Respondent has not even made a glancing reference to Officer Martinez, the person with the best knowledge of what Respondent did at the very inception of the campus police intervention at the scene, the conclusion is obvious: Officer Martinez’s testimony and her notes would be harmful to Respondent’s untenable position that the campus police presence in truth was an investigation into criminal activity or that there was a true criminal aspect to the investigation.”
Additionally, UC noted two post-Agu death university-commissioned reviews of the football strength and conditioning program — and represented them as “investigations” of the death by campus offices other than the police department — but did not share them with the court. So we did. Each report makes only passing reference to the death incident.
The very sparse report by Dr. Jeffrey Tanji is viewable at http://muchnick.net/tanjireport.pdf. The table of contents of the subsequent report by Dr. Elizabeth Joy and Wayne Brazil is at http://muchnick.net/joy-braziltoc.pdf; the full report is on the UC Berkeley website, https://chancellor.berkeley.edu/sites/default/files/sc_program_review_final_report.pdf.
Complete headline links to our Ted Agu series: https://concussioninc.net/?p=10877