“Court’s Final Ruling Blesses the Secrecy of the 141-Page Berkeley Campus Police ‘Binder’ in the 2014 Football Conditioning Drill Death of Ted Agu. Our California Public Records Act Case Proceeds,” March 8, 2019, https://concussioninc.net/?p=13682
Complete headline links to our series on the Ted Agu death cover-up (beginning November 2013 — before Agu’s death): https://concussioninc.net/?p=10877
by Irvin Muchnick
Four days after football player Ted Agu died in an extreme conditioning drill — and two years before the University of California settled a wrongful death lawsuit by Agu’s family — the UC Berkeley campus police summoned Damon Harrington, the assistant under head coach Sonny Dykes who had directed the drill, to two interrogations. The second of these interviews, the cops told him, was designed to “clarify” Harrington’s answers in the first one regarding his knowledge of Agu’s pre-existing medical condition.
The combined transcripts from February 11, 2014 — obtained by Concussion Inc. from a campus source — show Detective Harry Bennigson and Lieutenant Marc DeCoulode alternately consoling Harrington and helping him explain away the initial lack of attention given to Agu’s exertional collapse associated with sickle cell trait, and generally floating softball and leading questions whose purpose seemed to be to induce rehearsed and innocuous answers.
The interview sequence strongly suggests that the key role of the campus police department in the Agu death investigation was never anything like a probe of possible foul play, but rather support for the university’s containment of anticipated civil legal exposure. UC and Agu’s parents would agree to a $4.75 million settlement in 2016.
Such evidence dramatically contrasts with recent representations made by the UC Regents, the respondent in my current California Public Records Act (CPRA) lawsuit for the release of internal files in the Agu matter. The UC representations were accepted by Alameda County Superior Court Judge Jeffrey S. Brand, who ruled last month that the university did not have to release a 141-page binder of police reports on the Agu death because they fall under a CPRA exemption for records of criminal investigations. UC had hidden the very existence of the binder documents in earlier phases of the CPRA litigation, until our side raised them as their own category of disputed, concealed, and unexplained records.
Across four months of two tentative decisions and then the final one, Judge Brand first ruled that the university had failed to show a “particularized and objective basis” for a reasonable suspicion of criminal activity in the Agu death, before concluding on February 26: “A dead body is but a single fact, but it is one that provides for a ‘particularized and objective basis’ for commencing a law enforcement investigation.” (Brand, former dean of the University of San Francisco Law School, got his bachelor’s and law degrees at Cal.)
UC’s rationale for refusing to produce the binder, and the judge’s decision to go along with the refusal, are rendered highly dubious by these newly surfaced documents. Our campus source asked to remain anonymous because of the possible consequences of unauthorized dissemination of the material.
The source who gave me these documents said they correspond to three chapters of the 141-page binder, the text of whose table of contents Concussion Inc. had earlier acquired and published. The table of contents text is being reproduced again at the bottom of this article.
The first document is a supplemental report by Detective Bennigson, dated February 20, 2014, in which he summarizes two interrogations of conditioning coach Harrington on February 11. (Agu had died on February 7.) The report seems to be chapter D of the binder, titled “Interview with Damon Harrington.”
In turn, the transcripts appear to be, respectively, binder chapters M (“Interview with Damon Harrington transcripts#1”) and N (“Interview with Damon Harrington transcripts#2”).
Below are highlights of the transcripts. Concussion Inc. is preparing to upload them for public viewing.
Yesterday, for this story, I contacted Berkeley’s chancellor, Carol Christ, campus police chief Margo Bennett, and Detective Bennigson and Lieutenant LeCoulode. Last night Dan Mogulof, Chancellor Christ’s chief spokesperson, emailed back, “We have no comment.”
In the transcripts, Bennigson does the overwhelming majority of the talking. Though denoted by “Q,” his “questions” rarely ask anything, but are more like soliloquies. My opinion is that the transcripts add to a body of proof of obstruction of justice in the Ted Agu death. Even readers who disagree with this judgment should share my view that Chief Bennett’s force here served up an embarrassing exhibit of unprofessionalism.
In the first transcript, Bennigson tells Harrington that he was called in at the request of “Decco” — apparently DeCoulode, who “has asked me to look into this and just, uh, and something like this, what we do is we uh, there’s nothing suspicious about it. Uh, this is just to find out what led up to [Agu’s] death. Uh, was he on medication? Was he not feeling well.”
Here is some background on DeCoulode and another Cal football program scandal, which is related to the Agu death:
Three months earlier, on November 1, 2013, a Golden Bears player, J.D. Hinnant, had punched and kicked another, Fabiano Hale, into unconsciousness at the football complex, in retribution for Hale’s having missed one of Harrington’s conditioning sessions; the absence had subjected Hinnant and the other attending athletes to extra sets of punishment drills. While Hale was transported to the emergency room of Alta Bates Medical Center, where he stayed overnight, Hinnant was in uniform for the next day’s home game. Lieutenant DeCoulode would tell the media that head coach Dykes had no knowledge of the incident. (Sonny Dykes is now the head coach at Southern Methodist University. Damon Harrington is the strength and conditioning assistant at Grambling State University.)
Days prior to the Agu death the following February, an Alameda County assistant district attorney, Paul Hora, told me that his office was “deferring” assault and battery charges against Hinnant, who expressed remorse and performed community service. Ultimately, with the expiration of the statute of limitations, the charges (if ever filed in any form) were expunged.
Two years later I acquired and wrote about whistleblowing statements to the campus police by a backup quarterback, Joey Mahalic, who linked the Hinnant-Hale incident with the Agu death in an account of an out-of-control “toughness” regime in Harrington’s conditoning program. The DA’s office admitted that the campus police had not forwarded their interview of Mahalic (which also appears to have landed in the disputed 141-page Agu death investigation binder).
The February 2014 Harrington campus police interviews show that DeCoulode, whether on his own or otherwise, again asserted himself as a police department point person in managing Harrington’s recorded statements. A harsher way to put it is that DeCoulode was reprising his evident role as a fixer.
In his supplemental report, Bennigson said he first interviewed Harrington at the campus police station at 9:30 a.m. Harrington then came in at 10:40 a.m. for a second interview. “Lt. DeCoulode was present during this interview…. The purpose of the second interview was to clarify information regarding AGU’s medical condition.”
According to the raw, unedited transcript of the second interview. which purports to designate Bennigson’s utterances under “Q” and DeCoulode’s under “Q1,” DeCoulode speaks only three times, briefly. At the beginning, the lieutenant asks, “Uh, did you turn it on yet?” — apparently referring to the tape recorder. At the end, after Bennigson asks, “Anything else?”, DeCoulode says, “No. That — uh, that clarified it.” When interviewee Harrington, after being thanked for returning for the second session, says, “Yeah. I mean, it’s no problem. Like, you know, with this –,” DeCoulode interrupts to wrap up: “Get — get that [unintelligible].”
However, Bennigson’s supplemental report indicates that the transcript fails to notate DeCoulode as the speaker at one other important juncture. According to the report:
“Lt. DeCoulode asked HARRINGTON a hypothetical question. ‘In your medical training, if someone had a medical condition Sickle Cell Trait, are there any specific things that you should watch for or do differently?’ HARRINGTON replied by saying that he worked with a number of those types of athletes before. Not necessarily at UC Berkeley, but at other colleges. HARRINGTON explained that he would look for cramping and other signs of difficulty breathing problems [sic].
Lt. DeCoulode asked HARRINGTON if AGU had any of those symptoms such as cramping or anything that would cause concern. HARRINGTON said he was not aware of any cramping problems.”
At yet another point, according to Bennigson’s report, “Lt. DeCoulode asked HARRINGTON if it was unusual for players to help each other during a run.” This was because of the accounts of Harrington and others that teammates had begun dragging or pulling along Agu after he was stricken during the grueling group hill-run-plus-rope-pulling drill. “HARRINGTON said this run was designed for player [sic] to help each other. It was a team building and competition workout.”
In the first interview, Bennigson says to Harrington: “There’s rumors about sickle cell anemia [sic] — or whatever, you know, he might have …”
Here Bennigson is making clumsy reference to sickle cell trait. Sickle cell anemia is an acute condition involving rigid and sticky red blood cells. Sickle cell trait is a largely non-symptomatic genetic characteristic carried by approximately one in 12 African-Americans, according to the Centers for Disease Control. Carriers of the trait can lead normal lives but require extra vigilance and intervention for the onset of attacks during extreme exertion, which can turn suddenly fatal.
Agu had been found to carry the trait in routine paperwork attendant to his participation in the football program, and this information was shared with the coaching, training, and medical staffs. This was not a “rumor,” but rather, as we’ll see below, a clinical fact deliberately withheld by the Cal football team physician, Dr. Casey Batten, in a telephone conversation with Dr. Thomas Beaver, the Alameda County medical examiner, an office under the county sheriff. The withholding of the information had the effect of putting a thumb on the scale of Beaver’s original autopsy findings.
In the second interview transcript, Bennigson tells Harrington that he “filled the Lieutenant in” and “he wanted to touch base on a few more things” — one being “the medical background.”
After Harrington expresses uncertainty over whether he could release private medical information, Bennigson says, “Well I think because it’s an investigation you can.”
Bennigson, under DeCoulode’s prodding, then witness-coaches the coach:
Q. So w- if you’re not comfortable answering that…
Q. … you can say that you were aware that he had medical conditions but you don’t wanna say specifically what they were.
Q. But my understanding earlier was that when you were asked if you knew of any medical conditions…
Q. … you said no or you weren’t very specific.
A. I said I don’t know.
A. I — I mean, like…
Q. S- so keep in mind what we don’t wanna do is we don’t wanna have it appear that you’re either not telling the truth…
Q. … or that you’re being deceptive.
Harrington then opens up enough to say that if any players “have a medical condition we are informed because, I mean, we have to know …” Beyond that, he says, “I’d rather not elaborate.”
Bennigson: “You know, it’s uh, we’ve all lost people. You know.”
Bennigson: “It’s uh — you know it never goes away. It gets better over time, but it’s uh, this is early and the shock factor’s still here, so you know, it’s tough because football is [cameraderie].”
Bennigson goes out of his way to tell Harrington that he, too, “played a little college ball uh, back in my days, the 70’s.” This was at the junior college level. Bennigson also says that his father “recruited UCLA back in the 60’s and 70’s, so I’ve been around that — the college football a long time.”
Bennigson says that back in his day, “we took salt tablets…. I don’t think you’ve ever heard that, but … We used to take (unintelligible) I can’t believe you, but that’s how — that’s how we — all we knew back then.”
Kicking back, Bennigson discusses how a football team is “just a tight group … — law enforcement’s the same way…. You know, you — you get a group of ath- like grown athletes…. Where I used to work, it was all — like guys all played football, baseball. You know…. And I don’t think it — unless you’re involved in that, nobody knows the tightness, you know, (unintelligible). It’s almost like being a marine or something.”
Bennigson says “I hate to see a death, but this is goi — this is going to bring everybody closer. You know that…. I mean, this is — and it’s going to make them probably play even tougher, you know, cause they’re going to want to play for him…. You know, it’s neat. It’s times like this where it — it does bring people tighter together.”
Bennigson further supplements the interrogation with his opinions on training methods. “Conditioning,” he tells Harrington, “any one builds our legs, that’s — that’s it.” Bennigson says “my other line coach in college was — he was big on the hills. Oh my God, he would make us run up and walk down. But I — I walk down.”
Bennigson returns to what is perhaps the heart of the matter for him: “So by — by no means are we trying to put a blame on anything.… We’re not looking into what conditioning program is or nothing like that. That’s … uh, some people are asking, ‘Well, what are you guys — are you going to looking into the program?’ ‘No.’”
At another point Bennigson says, “I mean, to me, it looks like it’s going to be some kind of a natural cause. So uh, you know. It’s just unfortunate and it happens.”
“I did attend the autopsy,” the transcript records Bennigson telling Harrington. “The — the — the pathologist who is doing the autopsy is the Chief of Pathology [sic].” Bennigson calls the person who had cut Agu’s corpse “the tall guy. Very thorough and uh, they’re going to do a lot of testing to find out, you know, what happened, but nothing real obvious.”
“Yeah,” Harrington replies.
Bennigson: “So um, it sounds like, you know, it could be a lot of things. Could be uh, athletes die sometimes from — from intense workouts.”
Later Bennigson circles back to enthusing over the coroner’s team: “I don’t know if I told you, the — the pathologist is the chief…. [T]his guy’s an expert at what he does. I’m glad — uh, four physicians, he ended up, you know … doing the autopsy, so I feel good about that…. You know, he (unintelligible) autopsies, it’s always good to have — they’re all good, but this guy is uh, from what I’ve read on him and heard he’s too thorough. So that’s good…. So I know he’ll be able to tell us what’s going on.”
In the autopsy report, “this guy,” county medical examiner Beaver, would erroneously find that Agu’s cause of death was generic heart failure: hypertrophic cardiomyopathy, or HCM. In deposition testimony the next year in the family’s civil lawsuit, Beaver would testify that the mistake was a byproduct of football team physician Batten’s not disclosing the known information that Agu was a sickle cell trait carrier, while effectively lobbying in their telephone conversation for a finding of HCM. (Batten is now with the National Football League’s Los Angeles Rams.)
Following his civil lawsuit deposition, Beaver (by now at a new job in Florida), had the sheriff’s office undertake the extraordinary procedure of amending the already filed autopsy report to show that the cause of death was exertional collapse associated with sickle cell trait (ECAST).
Since there are no second chances at first impressions, Batten and Cal’s manipulation of the record had borne fruit. Years after the Agu family settlement, a Google search under “Ted Agu cause of death” still says HCM.
Asked by Bennigson if he “had eyes” on Agu, Harrington makes the ludicrous assertion, “I got eyes on everybody.” In the transcript, it is evident that the conditioning coach knew of Agu’s last of multiple collapses, at the top of a hill in early morning darkness, only after other players reached the bottom, where Harrington was positioned, and told him that Agu was down. Harrington’s own account makes clear that it took up to two minutes, perhaps longer, for help to reach Agu.
Bennigson: “So it wasn’t the type of workout where if you don’t finish it you have a penalty later on or anything?”
Harrington: “No. No, not at all….[T]here was never any, hey if you don’t finish that’s you know, your ass or anything like that.”
In 2016 Concussion Inc. acquired and published a document Harrington had forced every player on the team to sign. It was titled “CAL FOOTBALL WINTER WORKOUTS — PLAYER CONTRACT.” The “contract” provided for a “massive punishment session in front of the entire team featuring the previous weeks [sic] losing team.”
Table of Contents of the “binder”
A Initial UCPD report and supplements
B Supplement autopsy
C Miscellaneous supplements/documents
D Interview with Damon Harrington
E Interview with Michael Jones
F Interview with Austin Hinder
G Interview with Drake Whitehurst
H Interview with Daniel Lasco
I Interview with Joey Mhalic [sic]
J Interview with Michael Jones transcripts
K Interview with Robert Jackson transcripts
L Interview with Drake Whitehurst transcripts
M Interview with Damon Harrington transcripts#1
N Interview with Damon Harrington transcripts#2
O Interview with Austin Hinder
P Final autopsy report by Dr. Beaver