by Irvin Muchnick
Earlier this week the California Supreme Court, without comment, denied my side’s petition for review of the designation of the prevailing party in the nearly six-year-old California Public Records Act (CPRA) case Muchnick v. UC Regents.
This case uncovered more than 700 pages of new internal University of California documents relating to the 2014 death in Berkeley of football player Ted Agu, who suffered a fatal attack associated with sickle cell trait during an extreme offseason conditioning drill.
The newly released records substantially added to our reporting of a university cover-up of the cause of Agu’s death. Thanks to Cal’s withholding of the knowledge that Agu was a sickle cell trait carrier, and thanks to a misleading and justice-obstructing phone call to the coroner by Dr. Casey Batten, then the football team doctor, Alameda County at first erroneously ruled that Agu had died because of heart disease. This finding would not be corrected for nearly two years, when the UC Regents and Agu’s parents were in the final stretch of litigation of the family’s wrongful death lawsuit, which settled for $4.75 million.
In 2021, Alameda County Superior Court Judge Jeffrey S. Brand ruled that I was the prevailing party in the CPRA case on the basis of having catalyzed the new productions of UC documents, which had been withheld in response to my original records requests, but were rolled out across years in compliance with court orders.
Last year the university appealed the lower court decision, and even doubled down on a spectacularly unprecedented punitive tactic of seeking to have me hit with sanctions for bringing a “clearly frivolous” case. The Reporters Committee for Freedom of the Press and the California First Amendment Coalition weighed in on my behalf.
In a decision that was capricious, intellectually incoherent, and deferential to powerful figures, a three-judge Court of Appeal panel took it upon themselves to overturn Brand’s factual findings. The author of the Court of Appeal decision, Justice Mark B. Simons, disingenuously framed their reversal of the lower court judge’s discretion as implementation of a different “legal standard.” The bottom line was that the UC Regents were now the prevailing party.
The state Supreme Court’s refusal to give the case an additional look was not unexpected, given that only a tiny percentage of petitions for review there get accepted. This is deeply disappointing to my excellent attorney, Roy S. Gordet, who fought the university’s battalions of lawyers and apologists for years, and for all practical purposes won the case – but now is denied the $125,000 he stood to collect as reimbursement of his legal fees, before the Superior Court ruling got reversed. Gordet will have to settle for my thanks, and I hope the appreciation of my readers.
For me, the success in court here of the deep-pocketed and corrupt University of California is just another data point in the underlying story of the Ted Agu death cover-up. That story has been told, ongoing and in real time, at this site. The full three-chapter narrative – Agu’s death; the cover-up of its circumstances; and the CPRA litigation over the production of new documents further proving it – will be told in my Fall 2023 book for ECW Press, Without Helmets or Shoulder Pads.