In Email to Vice Chancellor During Cover-Up of Ted Agu Football Conditioning Death From Sickle Cell Trait Collapse, Berkeley Campus Police Chief Said the Quiet Part Out Loud

PREVIOUSLY:

“Court Finds For Concussion Inc. in California Public Records Act Case Against University of California — 730 New Pages Laid Bare in Cover-Up of Ted Agu’s 2014 Football Conditioning Death From a Sickle Cell Trait Attack,” September 9, https://concussioninc.net/?p=14572

“Here’s What We Learned Additionally About UC Berkeley’s Ted Agu Football Death Cover-Up As a Consequence of Our Successful Public Records Act Case,” September 11, https://concussioninc.net/?p=14581

“Muchnick on Daniel Libit’s ‘The Intercollegiate’ Podcast, Discussing Public Records Act Case For Documents in University of California’s 2014 Ted Agu Football Conditioning Death Cover-Up,” September 14, https://concussioninc.net/?p=14592

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by Irvin Muchnick

Last week Alameda County Superior Court Judge Jeffrey S. Brand tentatively ruled that I am “the prevailing party” and thus entitled to reimbursement for the fees of my attorney Roy S. Gordet in our California Public Records Act (CPRA) lawsuit against the University of California for internal documents relating to the crisis management of the 2014 death of football player Ted Agu during an offseason conditioning drill.

Why is this important?

It’s important because, on average, a couple of young men a year die, at the collegiate level of the football industry alone, under just such conditions — before helmets and shoulder pads are even donned, before anyone is even hit. What it all adds up to a grisly and unaccounted cost of our mass entertainment.

It’s also important because Agu’s covered-up cause of death, exertional collapse associated with sickle cell trait (ECAST), is such an arcane and underreported syndrome. There are likely many more cases than we’ll ever know with the same etiology and fact pattern.

One of the most damning documents emerging from our CPRA case got released with calculated belatedness nearly two years after my request to the campus compliance office and nearly a year into litigation: a March 20, 2014, email from Margo Bennett, the Berkeley campus police chief, to John Wilton, then the vice chancellor for administration and finance. This was:

• a month after Agu perished.

• a month before the Alameda County medical examiner issued an initially false finding of the cause of death as a cardiac episode. The coroner had been misled by the then Cal football team physician, Dr. Casey Batten, who had “worked the referee” with an unsolicited and irregular lobbying call in which he pushed on the coroner a theory of a generic cause of death — while conveniently neglecting to mention anything about sickle cell trait, including that the university knew Agu was a trait carrier.

In the email, which Concussion Inc. has uploaded to http://muchnick.net/bennett3-20-14.pdf, Chief Bennett is responding to Wilton’s question: “When we talked recently about the Agu incident you said you would pull all the work your dept. has done together and send it to me. How is that coming along?”

In an aside, Bennett notes that she is “fairly confident that Sandy” — Sandy Barbour, then the athletic director — “has not had access to this level of detail.” Directly addressing Wilton’s question, the chief writes:

“John, regarding the documents I gave you yesterday, please don’t share the papers … l put them together for you (and Ann if needed) only. If others need the information, I am happy to give a verbal briefing, but not documents. The case is not available for a PRA request and I’d like to keep it that way.” (italics added)

In the last motion of our Public Records Act case, we cited this email under a section of the brief calling it “part of a pattern that reveals a culture of secrecy and of contempt for CPRA procedures and principles.” The university has argued in briefs, with neither specificity nor evidence, that such interpretations are “defamatory” to Chief Bennett and others.

Opposing the motion that we were the prevailing party, the UC Office of General Counsel also decided that the best defense was a good offense, and simultaneously filed its own counter-motion for fees against us, on the grounds that our case and our persistent prosecution of it were “clearly frivolous.”

There is not a single published case in which a Public Records Act requester, later a petitioner in litigation, was held to be “clearly frivolous”; Muchnick v. University of California, Board of Regents will not be the first. In his tentative decision, Judge Brand rejected the university’s ham-handed effort, in effect, to sanction Gordet and me. At a hearing last week, UC didn’t bother to press the point.

Counsel did, however, toss into their fog machine what could only be termed a lie regarding a sequence of events prior to the first productions of previously withheld documents (including the Bennett-Wilton email that is the focus of this article). In the latest papers, the university repeatedly pounded the proposition, as irrelevant as it was fabricated, that our side had proposed securing a privacy waiver from the Agu family. Yet the very same brief contained references to, and even quotes from, the Regents’ previous representations to the court of just the opposite, including in declarations under penalty of perjury, underscoring that it was they who proposed the waiver.

This supposedly disputed fact, an absolute classic of institutional mendacity, had no bearing on the point of law in the tentative ruling by the judge, who ignored it.

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Chief Bennett made another major appearance in the document productions as the recipient of an email from Wilton on April 21, 2014, at the time when the university and the public were awaiting release of the medical examiner’s Agu autopsy report. (See our post on November 11, 2018, at https://concussioninc.net/?p=13354.) In the document, which we uploaded to http://muchnick.net/bringindanm.pdf, Wilton wrote to Bennett, “I wonder if we should bring Dan M into the picture?” Dan M is Dan Mogulof, the head of campus public relations.

Pushing back against our suggestion that the chief of public safety and law enforcement might have been behaving more like a private civil exposure mitigation consultant, UC filed a declaration by Bennett explaining that Wilton’s email, with her name the first of two in the “To” line, was not really “directed” to her.