Irvin Muchnick’s book Without Helmets or Shoulder Pads: The American Way of Death in Football Conditioning will be published later this year by ECW Press.

by Irvin Muchnick

As reported yesterday, the State Bar of California – in a disciplinary procedure decision I am appealing – is saying that I didn’t prove that University of California senior counsel Michael R. Goldstein lied repeatedly in my California Public Records Act case for internal documents in the cover-up at UC Berkeley in 2014 of the circumstances of Ted Agu’s offseason football conditioning drill death.

In his dismissal letter, investigator Kenneth Advincula wrote that the numerously cited examples of Goldstein statements “alleged” to have been made (alleged to exist, that is, in signed court briefs and a case management report, as well as in a personal declaration signed on penalty of perjury) “cannot be proven deceitful or as inadvertent mistakes.”

In this delphic pronouncement, what remains unanswered is which of two narratives is being suggested.

Is the state bar here telling me, “Catch him if you can” – that the lawyers’ professional watchdog group has such an impenetrable bias in favor of their own that all manner of lawyer dissembling is processed as soft misstatements, without even the occasional hardcore lie?

Or is the message perhaps something else — that Michael R. Goldstein (like Donald J. Trump regarding his shakedown phone conversation with Ukraine’s president Volodymyr Zelensky) proclaimed to the investigator that his alternating and diametrically opposed versions of his word salads to courts were “perfect”?

We don’t know the answer, which is why I’ve asked the state bar’s Complaint Review Unit to take another look at this tortuously flawed decision of its Office of Chief Trial Counsel. The whole process makes you wonder if attorneys Jay Edelson and Alex Tievsky, writing earlier this week at American Law Media’s Law.com, got it right in their essay headlined “The State Bar Lacks the Moral Authority to Oversee Attorney Discipline.”

From the evidence of the investigator’s thin dismissal letter, Goldstein himself might not even have been interrogated on the crucial “deceitful or inadvertent?” question. For that matter, he might not have been contacted at all.

While the state bar sorts this out, or pretends to, it should be noted that if what Goldstein committed was indeed mere “inadvertence” – leveraged, oh by the way, to try to punish a journalist with unprecedented punitive court sanctions for doing his job – then that wouldn’t have been his first such error with convenient timing for the protection of his institution’s cover-up ways.

In March 2019, nearly two years into our public records lawsuit, Goldstein sent to our side redacted copies of a December 15, 2015, email exchange between Dr. Casey Batten, the Cal football team physician, and Christopher Patti, the late Berkeley campus chief counsel. Batten had quarterbacked the Agu cover-up: he withheld from the county medical examiner that the player had been screened for sickle cell trait and found to be a carrier of sickle cell trait, and pushed the false finding that the cause of death was hypertrophic cardiomyopathy (thickened heart). The autopsy wouldn’t get corrected for two years, until after discovery and depositions in a wrongful death lawsuit by Agu’s parents, which the university settled for $4.75 million. (Batten is now team doctor for the NFL’s Los Angeles Rams and practices at the prestigious Cedars-Sinai Medical Center.)

In a cover note with his 2019 production of the Batten-Patti emails, Goldstein told my lawyer Roy S. Gordet that they had been “inadvertently omitted” from a batch of documents released in response to court orders half a year earlier.

A kissing cousin of inadvertence is faulty memory. Later in 2019, Goldstein defended Gordet’s deposition of Solly Fulp, a former Cal deputy athletic director (who before that was, and then later again became, an executive of Learfield, a college sports marketing company). Gordet asked Fulp such questions as why he’d sent a confidential email thread about the football death to his own father, who had no affiliation with the university, and whether he’d ever had any conversations about Agu with either other university officials or with Dad.

In the course of an hour, the deposition transcript shows, according to my manual count, that Fulp answered “I cannot recall” and its variants 119 times.

What are a hundred or so memory lapses among friends? Get that man some Prevagen!

Full Text of the Attorney Misconduct Complaint Against University of California Senior Counsel Michael R. Goldstein, State Bar No. 129848