In Reversal, Appellate Court Rules UC ‘Prevailing Party’ in Public Records Case – Changing Nothing About Our Daylighting of Massive New Info in Cal’s Ted Agu Football Death Cover-Up
November 7, 2022California Court of Appeal Is Setting a Harmful Precedent For Designating the ‘Prevailing Party’ in Public Records Act Cases Resulting in New Documents Exposing Public Agency Malfeasance
November 9, 2022
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PREVIOUSLY:
“In Reversal, Appellate Court Rules UC ‘Prevailing Party’ in Public Records Case – Changing Nothing About Our Daylighting of Massive New Info in Cal’s Ted Agu Football Death Cover-Up,” November 7, https://concussioninc.net/?p=15070
“In Ted Agu Football Conditioning Death Cover-Up Public Records Act Case, Reporters Committee for Freedom of the Press and First Amendment Coalition Tell Appellate Court That University of California Seeks ‘to Chill Members of the Public, Including Journalists,'” March 24, https://concussioninc.net/?p=14970
“Flashback: Three Stories About the University of California’s Ted Agu Cover-Up That Were Specifically Enabled by Our Successful Public Records Act Lawsuit,” March 28, https://concussioninc.net/?p=14980
by Irvin Muchnick
Look: Cal-Berkeley successfully covered up the circumstances of football player Ted Agu’s 2014 death in a bizarre winter conditioning drill. No book nine years later about the scandals of sub-professional football conditioning drill deaths can change that. Ted who?
Agu died of exertional sickling. He also died because of an out-of-control football strength and conditioning program, run by a new regime hell-bent on “culture change,” to emphasize “toughness.”
In my view, the death was at least a metaphorical, and probably even a legal, homicide: unindicted involuntary manslaughter. But getting any inkling of that truth into the mainstream media narrative was problematic, and remains so.
In 2001, when Rashidi Wheeler died of an asthma attack during football team summer conditioning at Northwestern University, there was Rodney King-like video of the episode, and the late celebrity lawyer Johnnie Cochran got involved. The Chicago newspapers roasted Northwestern.
But today’s news landscape is very different. The major local daily newspaper is a zombie, and much of its chance of remaining viable and profitable rests on catering to sports fandom. It is well equipped to weigh in on culture wars, like the Colin Kaepernick national anthem kneeling controversy, but not anything complex or technical. When Ted Agu died, no local sports columnist stepped up to tell its full background or to critique the university’s actions. The Agu family’s $4.75 million wrongful death lawsuit settlement with the University of California Regents got farmed out to the San Francisco Chronicle’s stretched general news staff, who didn’t know Sonny Dykes’ Air Raid offense from the missing children alert system.
Boldly, the Chronicle told its readers, exactly once, that something fishy seemed to have happened with Agu. Years later, a “Chronicle investigation” revealed that there had been monkey business with an internal review of the Golden Bears’ football strength and conditioning program.
And here’s what general Bay Area news consumers didn’t learn. That is, unless they were readers of this modest blog’s reporting, which was buttressed by the hundreds of pages of internal university documents liberated by my 2017 California Public Records Act lawsuit.
When Agu died, Dr. Casey Batten, the Cal football team physician – now a doctor for the National Football League’s Super Bowl defending champion Los Angeles Rams – stuck to a script written by the sports information office to turn aside contemporaneous questions from the media about whether Agu was a sickle cell trait carrier.
Meanwhile, behind the scenes, Batten obstructed justice by calling Dr. Thomas Beaver, the Alameda County medical examiner, and opining that the Agu death, to all appearances, was from a generic heart condition. Batten and Cal never told Beaver or the Alameda County Sheriff’s Office, under which the coroner worked, that Agu was a sickle cell trait carrier. Discovery and deposition testimony in the family’s lawsuit would reveal that the university withheld from the sheriff more than 100 pages of a binder of campus police reports relating to the Agu death.
Thusly unfortified, the coroner’s findings were satisfying to the image of the state’s flagship public university: The Agu death was ruled to have been from hypertrophic cardiomyopathy, or thickening of the heart muscle.
More than a year later, after the revelations of the family lawsuit, the medical examiner’s office was motivated to revise the original finding to reflect that exertional sickling was a “contributing” factor.
By then it was Ted who? – especially with the Chronicle pulling punches in its so-called investigation. For Cal, it was mission accomplished, cover-up successful.
When my attorney Roy Gordet helped me sue under the California Public Records Act and acquire even more hundreds of pages of internal university documents (not including ones already obtained through half-compliance with my pre-litigation CPRA requests, and not including key ones I got independently from campus leakers), the lower court ruled that I was the prevailing party and that UC was on the hook for Gordet’s $125,000 in legal fees.
The university could have ended things right there and paid the $125,000. After all, the bereaved family had already been paid nearly five million dollars. The journalist-petitioner’s CPRA legal fees were comparative taxi money, and spread out across five more years of distance from exposure of the Agu death cover-up, and only at an independent website, it was a sound investment.
The University of California, however, wasn’t satisfied. What the institution’s 70-lawyer-strong general counsel’s office wanted was to overturn the lower court finding and the fee award to the adversary. Most importantly, the university wanted to send a message to all pesky citizen and journalist investigators that they not only would have to do the work in court to drag out basic public information, but also that their legal support wouldn’t get reimbursed in the end.
At the 1st District Court of Appeal division five, UC landed on the three-judge panel that would do its bidding. The appellate court reversed the lower court. I was not the prevailing party. Gordet would not get $125,000.
Quite “Solomonically,” the justices declined to bite on a further plea by the university to find me guilty of having pushed a “clearly frivolous” case. This would have made me responsible for paying UC for the costs of defending against my action. There is not a single published case on the books of a CPRA petitioner being sanctioned for frivolousness. Also, how did the lower court judge rule in my favor if this was all so frivolous? Pray tell, where was the frivolity in an investigation of an avoidable death and its cover-up?
In their March amicus brief in my case, the Reporters Committee for Freedom of the Press and the First Amendment Coalition told the Court of Appeal:
“[T]here is ample evidence in the record that Petitioner filed the action in a good-faith effort to obtain records for his reporting on a matter of great public interest….
The Regents’ attempt to characterize the Petition as frivolous seeks to chill future litigation by public records requesters and deter investigative reporting. By characterizing the Petition here as frivolous, the Regents seek to saddle ordinary requesters who would assert their rights under the CPRA with potentially devastating attorneys’ fees. The threat of such fees, alone, could chill the willingness of members of the public with legitimate claims to pursue litigation to enforce their right to access information-especially in cases presenting close questions of law. law. And by upsetting the deliberate scheme of incentives and protections under Section 6259(d), the Regents’ position, if accepted, would stymie reporting on matters of public interest and concern.”