Personal foul: University of California wins a round (against me) in football death cover-up

More evidence that when elite universities get hooked on football, they start behaving like tobacco companies

By Irvin Muchnick

Contributing Writer

Published November 19, 2022 7:00AM (EST)

Football Player For The California Golden Bears, Berkeley, California (Thearon W. Henderson/Getty Images)
Football Player For The California Golden Bears, Berkeley, California (Thearon W. Henderson/Getty Images)

Last year, in the course of analyzing the tortured sociological forces wedding African-Americans to the public health horror show of football, "until death do they part," I shared with readers a little about the University of California-Berkeley's skillful cover-up of the circumstances of the 2014 conditioning drill death of football player Ted Agu.

This update further underscores the theme that when the most esteemed institutions of higher education get into bed with the football industry, they might as well be tobacco or gun companies.

In Agu's case, the Cal football team physician, Dr. Casey Batten, obstructed justice by calling the coroner of Alameda County (which includes the city of Berkeley) as the latter was about to perform an the autopsy. Batten offered the unsolicited opinion that Agu had simply perished from a heart condition. Batten — who is now a doctor for the Los Angeles Rams, the defending Super Bowl champions — somehow didn't get around to mentioning to the medical examiner that the university had screened Agu for sickle cell trait and found that he was among the one in 12 Black people who carry it, which made him susceptible to a syndrome called "exertional sickling," which can bring on sudden death.

Indeed, Agu died from exertional sickling, not because of a thickened heart, as the Alameda County sheriff's office, under which the coroner works, was compelled to begin acknowledging nearly two years later, as the Agu family was finalizing a $4.75 million wrongful-death settlement with the University of California Board of Regents.

In fairness, how were the coroner or his bosses supposed to know? The university had never disclosed that Agu carried sickle cell trait, and had withheld from the sheriff more than 100 pages from a binder of campus police reports relating to the death, which repeatedly referred to widespread internal suspicion that this was the cause.

In 2017, I sued the university under the California Public Records Act (PRA) for documents surrounding the management of Agu's death and its PR aftermath. Among the things revealed from the resulting release of more than 700 pages of previously secret information was that Dr. Batten was lobbying the coroner on the side at exactly the same time as he and other campus officials were following a script that Cal's sports information office had written for them to respond to any media inquiries about Agu and sickle cell trait. Specifically they were told to say: No comment on anything that might violate the privacy of a dead person.

When I compare the most illustrious academic institutions enmeshed in the football business to dirty corporations, I also mean their sleazy, scorched-earth litigation tactics, which make a mockery of public information law. In my PRA case, the campus police chief, Margo Bennett, was exposed for being less a public safety officer than a university risk mitigation consultant, when it was revealed that a UC vice chancellor, John Wilton, had emailed her to suggest it might be time to loop the campus media spokesperson in on information the campus cops were holding close.

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In a sworn declaration to the court, Bennett actually said that the email was not "directed" to her but rather was primarily intended for the second listed recipient. (Wouldn't the sender himself, Wilton, be the only person qualified to make such an assertion?)

Earlier, Bennett had cautioned Wilton not to show third parties any of the documents she had given him. The matter in question was "not available for a PRA request and I'd like to keep it that way," Bennett emphasized.

At another point in the proceedings, my attorney, Roy Gordet, filed a motion arguing that a particular batch of emails should no longer be redacted under attorney-client privilege. These had been forwarded by Solly Fulp, who was then then Cal's deputy athletic director, to his father, a retired parks and recreation director in Alaska with no connection to the university. There is a relevant legal principle that disclosure to one outsider is tantamount to disclosure to all.

When we deposed Fulp, he threatened to challenge Donald Trump's record for taking the Fifth Amendment. According to my manual count from the transcript, Fulp answered 119 times "I cannot recall" or variations thereof — including to questions about whether he remembered forwarding the emails to "Dad," why he did so and whether he'd ever had any conversations about the Agu death with any of the other university officials on the email chain.

The University of California twice tried to have courts sanction me for bringing a "clearly frivolous" lawsuit. I'm not sure the families of dead student-athletes across the country see it that way.

Still, Alameda County Superior Court Judge Jeffrey Brand (a graduate of both UC Berkeley and its law school) denied our motion to daylight the email dump from Fulp the younger to Fulp the elder. "The court finds," Brand wrote in his decision, "that Fulp forwarded the email to his father intending it to be a confidential intra-family communication in the manner of 'Dad, this why I've been so busy at work [sic].'" In doing so, Brand deemed, Fulp was not "acting within the scope of his or her membership, agency, office or employment," and therefore attorney-client privilege remained intact.

Even so, at the end of that case, Brand ruled that I was the "prevailing party," having "catalyzed" the production of not-insignificant public records that had originally been stonewalled by UC officials.

Evidently believing that the best defense is a good offense, the university sought, without success, to have two courts sanction me with punitive fees for having brought a "clearly frivolous" lawsuit. I'm sure the families of dead student-athletes across the country are having a good laugh over a "frivolous" journalistic investigation of what happened to their loved ones.

Earlier this month, however, a three-judge panel at California's 1st District Court of Appeal reversed the lower court and proclaimed the University of California to be the "prevailing party," rather than me. This changes nothing about the story I can now tell — with even more evidence than the thousands of pages of documents independently leaked to me earlier by campus sources — about the university's shameful cover-up of the death of Ted Agu.

What the new court ruling does mean, unfortunately, is that my attorney now stands not to be reimbursed the legal fees — a sum of at least $125,000 — that the parties had negotiated on order of the lower court.

In an amicus brief, the Reporters Committee for Freedom of the Press and the First Amendment Coalition told the Court of Appeal that UC, by its actions in my case, seeks "to chill future litigation by public records requesters and deter investigative reporting."

The appellate decision, which strikes me as just as egregious as Judge Aileen Cannon's antics in the Mar-a-Lago presidential records case, was authored by Mark B. Simons, an associate justice who, from 2002 to 2004, was an adjunct professor at UC's Hastings College of the Law. In a nutshell, the appellate panel held that UC's production of documents was the result of a court-ordered framework of "categories," not from the exact language of my original requests.

There is plenty of case law frowning on what one ruling castigated as "feigned confusion" regarding the purpose and intentions of the records request. In my case, the appellate court overturned the trial court without even bothering to examine any of the specific released documents that purportedly were not covered by my requests.

I have until early December to decide whether to seek an appeal at the California Supreme Court. In the meantime, I have filed an attorney misconduct complaint with the state bar against UC senior counsel Michael R. Goldstein, for serial blatant lies in his briefs and even in a personal declaration sworn under penalty of perjury. I have asked the bar to investigate violations of its code for "conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation" and/or "conduct that is prejudicial to the administration of justice."

"CPRA's policy objectives of transparency and accountability of public agencies simply have no chance of being achieved when the attorneys representing them are allowed to lie with impunity," I wrote. The full text of the complaint can be read here.

By Irvin Muchnick

Irvin Muchnick's book “Underwater: The Greed-Soaked Tale of Sexual Abuse in USA Swimming and Around the Globe” will be published later this year by ECW Press.

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