Concussion Inc. to Court: University of California’s Evidentiary Challenges to Our Public Records Act Case Motion on Ted Agu Football Death Cover-Up Are ‘Harassing’

by Irvin Muchnick

A hearing is scheduled for December 5 in this reporter’s motion — in a California Public Records Act (CPRA) case now winding down its third calendar year — for disclosure by the University of California of an April 23, 2014, email from former UC Berkeley deputy athletic director Solly Fulp to “Dad,” his father Ian Fulp.

In the email, Solly Fulp shares 17 pages of evident public relations strategy emails and attachments by Cal Athletics colleagues, general campus administrators, and police officers. The email thread anticipates the imminent release of the Alameda County medical examiner’s autopsy findings in the death of football player Ted Agu in a conditioning drill two months earlier.

At https://concussioninc.net/?p=14045 we published our opening brief in this motion, asking Alameda County Superior Court Judge Jeffrey S. Brand to invalidate the claim that the guts of the Fulp-to-Fulp-pere email are protected by attorney-client privilege. On November 14 the UC Regents filed their response. Last Thursday attorney Roy S. Gordet filed our final reply.

Concussion Inc.’s argument is that if Solly Fulp’s email to someone who was not affiliated with the university was some kind of mistake, it’s a mistake that should carry consequences: full release of the document. The 40 million people of California deserve the same insights into the inner workings of the flagship campus of their state university system that were accorded Ian Fulp, the retired director of the department of parks and recreation in Kodiak, Alaska.

UC’s argument is notable for two things. The first is technical. In their brief, they simply ignore an entire area of case law for Evidence Code 954, governing the limits of attorney-client privilege, which was introduced in our motion but is unfavorable to their position. We’ll soon find out if the court goes along with this ploy — or, worse, supports a decision in favor of the university on the basis of law that the respondent itself was afraid to touch. Such a bad ruling would repeat a pernicious pattern in this CPRA action to which I strenuously object.

The other thing that sticks out in UC’s response package is the breathtaking arrogance of a public educational institution’s hide-the-ball playbook. Lawyer-quarterbacked misdirection now extends all the way to maintaining that a journalist or member of the public should not even be allowed to raise to the court plausible questions that would enhance the sense of urgency for documents sought under CPRA. If the California courts buy this nonsense, then CPRA will have no teeth; the law will be seriously compromised in its core purpose of holding public agencies accountable by subjecting their records to public inspection.

Specifically, the university entered evidentiary objections to my declaration in support of the current motion. In the declaration, I shared with the court outside-the-case-record reporting — mostly but not entirely my own — in which I point out that the disputed Solly/Ian Fulp email could very well contain information pertinent to an investigation of malfeasance in the wake of the Agu death. Individual participants in this at the very least arguable institutional malfeasance include Cal football’s head team physician at the time, Dr. Casey Batten, and a lieutenant in the Berkeley campus police force, Marc DeCoulode.

Documents acquired by Concussion Inc. — including key ones on which there was no help from either UC (in the pre-litigation public records office compliance process) or the court (in the course of this lawsuit) — establish beyond doubt that, in the immediate aftermath of Ted Agu’s death, Batten was looped into PR talking points. One of the talking points coordinated Cal’s position that it could not answer questions about Agu’s medical condition because this would violate the dead student-athlete’s “privacy.”

Batten went on to recite, verbatim, this canned and convenient rationale for refusal to comment at the February 7, 2014, press conference just hours after Agu perished, at the end of multiple collapses near the conclusion of a maniacal conditioning drill designed and directed by Damon Harrington, an assistant to then head football coach Sonny Dykes.

Hours after that came the malfeasance, when Dr. Batten placed an unorthodox and thoroughly inappropriate phone call to Dr. Thomas Beaver, the Alameda County coroner. In that conversation, Batten promoted to Beaver the theory that Agu had died from simple hypertrophic cardiomyopathy (HCM — heart disease). Batten also withheld even from the medical examiner the information, long known by the university, that Agu had shown up in voluntary screening as one of the nearly ten percent of African-Americans who carry the sickle cell trait (SCT). This trait makes them vulnerable during extreme exertion to what is known in the medical literature as “ECAST”: exertional collapse associated with sickle cell trait.

Based largely on the failure of  Cal to tell the Alameda County sheriff’s office and medical examiner that Agu was a known SCT carrier, the official autopsy would proceed to serve UC’s cover-up — never considering ECAST and issuing a kind of default cause-of-death finding of HCM.

However, in later testimony in the Agu family’s wrongful death lawsuit against the university — which soon would settle for $4.75 million in taxpayer- and tuition-payer-subsidized funds — coroner Beaver was confronted with the SCT information. Beaver thereupon admitted that he didn’t know and hadn’t been told this, and he agreed to revise the autopsy findings to reflect that the cause of death was ECAST. He also gave an account of what amounted to a lobbying call by Batten just before the medical examiner cut into Agu’s corpse.

Confronted at his own deposition, Batten testified in gobbledygook and didn’t deny Beaver’s account.

As for campus cop DeCoulode, documents concealed by UC — in a move blessed by the court in an earlier motion in my CPRA case — show that the lieutenant engineered a do-over interrogation of conditioning coach Harrington in which Harrington was guided toward a “better” answer than he had given in his first interview to the question of whether Agu had a preexisting medical condition.

“[K]eep in mind,” the second interview transcript reads, “what we don’t wanna do is we don’t wanna have it appear that you’re either not telling the truth … or that you’re being deceptive.“

The transcript is part of a secret 141-page binder of campus police reports following the Agu death. Another chapter of the binder is a whistleblower complaint by player Joey Mahalic regarding the toxic culture of the Dykes-Harrington football conditioning program, which, three months prior to the death incident, already had resulted in a “Code Red” criminal assault by one player, J.D. Hinnant, against another, Fabiano Hale, for skipping a practice session.

Earlier this year Judge Brand ruled that the police binder was exempt from CPRA release because it had been part of a “criminal” investigation. (A criminal investigation from which no criminal charges emerged. How about that!) In so deciding, the judge relied on a statement by the campus police chief, Margo Bennett, that it was firm department “policy” to treat from the get-go every fatality on campus as a potential crime, even where there was a prima facie natural cause.

From campus sources, I independently acquired and published portions of the 141 pages. These expose DeCoulode and the campus police as functioning less like crime sleuths and more like the university’s private risk mitigation consultant. “We don’t wanna have it appear …”

Which brings us to the evidentiary objections to my declaration. The university contends that my pointing the court to my coverage and the open questions surrounding it should be thrown out because it is flawed by hearsay and other subpar standards of proof.

This tack is analogous to President Trump’s corrupt claims that (a) the federal government whistleblower against him has no validity because they weren’t listening live to the controversial call with the Ukrainian president and (b) whistleblower information that proves only partially or substantially conclusive must be disregarded, rather than used as the foundation of a fuller and better-resourced investigation.

In my rebuttal second declaration filed last week, I offered the court my view that trial-level evidentiary standards should not be imposed on legitimate speculative statements trying to pierce the veil of public agency secrets:

“This is an action under the California Public Records Act, and I am the investigative journalist seeking relief under it. Accordingly, I shared with the Court aspects of the disputed and almost fully redacted email from Solly Fulp to his father Ian Fulp that plausibly have great bearing on my work and the relief sought in the instant Motion and in this Petition generally. Since I am in the dark as to the exact contents of the email, absent a favorable ruling on this Motion, I am not in position to address the strength of the disputed email, but I should be permitted to provide the conclusions I perceived or extrapolated based on the contents that I was able to view.”

This is called journalism. And CPRA exists to support journalism, not to give public agencies new creative ways to stonewall it.

Elsewhere in our court filing, attorney Gordet added, “Petitioner takes issue with the harassing nature of Respondent’s Objections.”

***

UC’s evidentiary objections to my declaration seem especially rich in light of the fact that Charles F. Robinson, chief counsel in the office of the president, in his own declaration in support of the response to my motion, engages in blatant, classic hearsay. Really, it’s worse than hearsay: Robinson does nothing less than attempt to put words in Solly Fulp’s mouth to suggest that the disputed email to Ian Fulp was “inadvertent.”

What shameless malarkey. Readers can view the almost entirely redacted email for themselves: http://muchnick.net/sollyfulptodad.pdf. It is addressed to “Dad” (an obvious auto-truncation from Solly Fulp’s email address book) and it begins, “See below.”

Solly Fulp was deposed on October 3. In the course of a two-hour festival of “I cannot recalls” — he could not recall, for example, whether he signed a contract that paid him more than $300,000 a year to peddle Cal’s logo for corporate licensing deals; nor could he recall his duties as deputy director and chief operating officer of Cal Athletics in that prehistoric era of the early and mid-2010s — Fulp never said the email was inadvertent.

(Fulp’s recent deposition transcript is viewable at http://muchnick.net/fulp2019deposition.pdf. His 2015 deposition transcript in the Agu family lawsuit is at http://muchnick.net/fulp2015deposition.pdf.)

Yet university counsel Robinson has the audacity to swear under oath to the Alameda County Superior Court that “I understand” that “the evidence demonstrates Mr. Fulp may not have sent the email, and his father may not have received it, and that, if Mr. Fuip sent it, he sent it inadvertently.”

Five Pinocchios. Pants on fire.

Let’s see what emerges in early December.

Let’s see, too, if the San Francisco Chronicle, the Daily Californian, the area legal press, and the regional news media in general continue to black out coverage of the Ted Agu death cover-up and its contribution to the nationally discussed public health issue of the two-fatalities-a-year pandemic in non-contact practices of unpaid, asymmetrically powerless kids in the American football system.

Comprehensive headline links to our nearly six years of Ted Agu death coverage: https://concussioninc.net/?p=10877