ECW Press has announced the publication next year of Without Helmets or Shoulder Pads: The American Way of Death in Youth Football Conditioning. Three chapters of this book by Irvin Muchnick will chronicle, in order, the 2014 death of Ted Agu; UC Berkeley’s cover-up of the circumstances of that death; and the surrounding corruption, including the university’s scorched-earth legal tactics to try to keep the facts of the cover-up from emerging.
by Irvin Muchnick
In the latest surprise twist from California’s courts – consistent with what is now my years of experience of their coddling of the University of California – the 1st District Court of Appeal has issued a ruling in favor of UC in my California Public Records Act (CPRA) petition. That lawsuit caused the release of more than 700 pages of previously withheld internal documents relating to university officials’ management of Cal-Berkeley football player Ted Agu’s 2014 death, in an irregular offseason conditioning drill, from an exertional attack associated with sickle cell trait.
The decision by the three-justice panel of the appellate court’s division five reverses that of the judge in Alameda County Superior Court, who found last year that I was the “prevailing party.” Under the new ruling, UC stands as the prevailing party.
For my purposes, as a Ted Agu storyteller, this new legal development changes nothing. I still have, as a result of the CPRA case, even more documentation of Cal’s cover-up than I had before going to court in 2017. Most notably, the new documents, which UC fought to withhold, establish that Dr. Casey Batten, the football team physician, was coached by campus public relations specialists on how to dodge questions about Agu’s preexisting medical condition – all this while the university, at the same time, was concealing it from the Alameda County Sheriff’s Office, and Batten, in a justice-obstructing phone call, was misleading the coroner, who worked under the sheriff, about the cause of death.
There is one and only one real-world consequence from the Court of Appeal ruling, but it is significant for my excellent attorney, Roy S. Gordet, who helped me bring the litigation and has fought the UC general counsel’s office in court for more than five years. Since we are not at this point “the prevailing party,” Gordet stands not to get from UC the $125,000 in fees that Superior Court Judge Jeffrey Brand had ordered the parties to negotiate after ruling that I won the case.
In a broader sense, the appellate ruling is devastating to the general principle that there should be a strong presumption, in factual patterns like those of my case, that the petitioner-journalist was the prevailing party and that the respondent-public agency must pay the legal fees. Using the legal term of art, I believe I should have prevailed under what is called “catalyst theory.”
In an amicus curiae, or “friend of the court,” brief, the Reporters Committee for Freedom of the Press and the First Amendment Coalition agreed. They argued that narrow standards preventing the petitioner from being named the prevailing party harm the essential mission of CPRA by disincentivizing public interest lawyers to take on these cases.
The amici also made the point that, in this case, the university deployed an overly broad interpretation of the federal Family Rights and Privacy Act in order to conceal what should be public information. Outrageously, in my view, the Court of Appeal disregarded the presentation of the public interest groups and, with contorted reasoning, found a way to designate UC the prevailing party.
In a series of posts this week, Concussion Inc. will proceed to roll out our full critique of the Court of Appeal decision. We have uploaded a facsimile of the ruling, filed on November 1, at http://muchnick.net/courtofappeal.pdf.
The decision was written by associate justice Mark B. Simons. The division chief justice, Teri L. Jackson, who concurred, did not ask a single question at oral arguments on October 26. And none of the three justices even bothered to ask UC counsel to rebut the arguments made at the hearing by my appellate attorney, John Derrick.
The only reflection of oral arguments in the final decision was the addition, to the earlier tentative ruling, of a footnote with a skewed summary of what Derrick said, along with the court’s rejection of it.
CPRA is in a bad place when a public entity-biased appellate court, which would be expected to defer to the discretion of the lower court judge, so casually blows off the interests of all of us in learning more about the inner workings of official agencies.