A preliminary hearing concluded on Friday for the second set of defendants charged in connection with a alcohol-soaked fraternity initiation event where Penn State sophomore and Beta Theta Pi pledge Timothy Piazza sustained fatal injuries in February 2017.
District Judge Steve Lachman is expected to announce on Monday a decision on which, if any, charges will be held over for trial.
Though Lachman didn’t issue a decision on Friday, he did give some insight into the factors he is considering.
He posed several issues to prosecution and defense attorneys at the start of Friday’s proceedings. They included whether pledges were forced to drink in an act of hazing at a party that followed the initiation event, how much pressure must be applied for the consumption of alcohol to constitute hazing, and whether the whole event or individual acts should be considered acts of hazing.
Lachman also asked for attorneys to present a standard for him to evaluate whether giving alcohol to Piazza was reckless, for those who are charged with recklessly endangering another person. He also asked whether charging defendants with both furnishing alcohol to minors and unlawful acts relative to the liquor code was legally proper.
Piazza died from brain injuries and internal bleeding after falling head-first down the basement stairs at the now-banned Beta Theta Pi chapter on Feb. 2, 2017 during a fraternity bid-acceptance event and party that followed.
Investigators say Piazza was given 18 alcoholic drinks in the period of 82 minutes, some of which came during an initiation ceremony dubbed "the gauntlet," in which pledges went through a drinking obstacle course.
The 12 defendants at the latest hearing are not alleged to have taken part in the planning and execution of the gauntlet, but rather, prosecutors contend, forced alcohol on Piazza and other pledges during the party that followed.
Not all are accused of giving Piazza alcohol, but the five who did -- Joshua Kurczewski, Ryan Burke, Jonathan Kanzler, Aidan O’Brien and Bo Han Song – face charges of recklessly endangering another person. Involuntary manslaughter and assault charges were dropped prior to the hearing.
They and six others -- Joseph Ems, Brian Gelb, Patrick Jackson, Reggie Goeke, Mike Fernandez and Donald Prior – also are charged with hazing, furnishing alcohol to minors and liquor law violations.
Another former fraternity brother, Braxton Becker, is accused of deleting the basement video which was later recovered and formed the basis of the second set of charges.
The preliminary hearing is the third in a case that involves charges against 26 former fraternity brothers. After an initial preliminary hearing last summer and another on refiled charges that were dismissed from that initial hearing, 14 other defendants are facing charges.
For the defendants at this week’s hearing, defense attorneys uniformly argued that their clients are only accused of giving alcohol to pledges at a party that followed the initiation event. That social gathering was voluntary and pledges were free to drink or not, they said, and none of their clients were involved with planning the event or purchasing alcohol for it.
Peter Kratsa, who represents O’Brien, pointed to a statement given by one pledge told an investigator that a brother told them at the start of the party, “Now let’s have fun. You can get a drink if you want it.”
Lead investigator Det. David Scicchitano said under cross-examination that there was no evidence that pledges were told the party was mandatory and that two pledges left early.
O’Brien is accused of giving a beer to Piazza, which Kratsa said there is no evidence Piazza drank, then holding up a wine bag for Piazza to drink from six minutes later.
Video clips shown throughout the hearing isolated each time a brother gave Piazza alcohol. Like others with clients charged with reckless endangerment, Kratsa said the video showed there was no way for O’Brien to know how much Piazza had consumed or his level of intoxication.
Bo Han Song provided Piazza with his final drink of the evening, holding up a bottle of vodka for Piazza to drink from, and before and after Piazza could be seen staggering. But Song’s attorney, John Sughrue, said his client did not see that and that Song had been drinking himself.
Sughrue questioned Scicchitano about the detective’s experience evaluating if someone is under the influence, and Scicchitano explained he had been an instructor for standard field sobriety test training.
“You’re certainly better trained and in better position to make that conclusion than an 18-year-old freshman,” Sughrue said.
Det. Craig Ripka testified on Friday about what he learned of a Penn State alcohol education course required of all freshmen before beginning classes. Under questioning from Deputy Attorney General Megan Madaffari, Ripka said he was told the course included information about effects of alcohol, recognizing signs of alcohol poisoning, what to do and amnesty laws.
Several defense attorneys, however, noted that Ripka had no proof their clients took the course and that he had not seen the course himself. Lachman called the issue “insubstantial.”
Jeffrey Veitch, attorney for Kurczewski, said during his closing that reckless endangerment is not a “catch-all” charge for an outcome that results in bodily injury or death, but applies to actions that were reckless at the time.
“I would argue handing a buddy a drink of alcohol is not a reckless act… you do not foresee that single act as consciously ignoring a great and unjustifiable risk,” added Sughrue during his closing.
The party was no different than any other involving alcohol at Penn State, several defense attorneys argued, and the defendants were sharing drinks with willing participants, not hazing.
Edward Spreha, attorney for Fernandez,, said his client was celebrating with pledges and welcoming them into the fraternity, not hazing them.
Kratsa said that alcohol was not only served to pledges, but also to brothers and members of Trilogy, a female organization invited to the party.
Prosecutors argued that fraternity brothers were intentional in approaching pledges with alcohol and holding it to them to drink. In each of the instances identified in the video clips, brothers had little interaction with the pledges after giving them beer, wine or vodka.
In one video clip, Senior Deputy Attorney General Andrew Notaristefano said Prior could be seen holding up a wine bag for a pledge, who refuses at first until Prior appears to insist that he does.
Prosecutors also argued that pledges were compelled to drink as a perceived expectation of membership. The defendants also knew the dangers of the excessive drinking associated with bid acceptance night because they had gone through it themselves when many pledges vomited and one was injured.
Piazza and the other pledges, on the other hand, didn’t know what they would be expected to do going in to the event, Notaristefano said.
But defense attorneys said all the pledges were clearly willing participants.
“I think Mr. Piazza showed an enthusiasm for what he was doing that evening,” Sughrue said.
They also argued that drinking was not an expectation of membership, pointing to testimony about fraternity members who did not take part in the bid acceptance events in the past and one fraternity member who said he does not drink alcohol at all.
Each of the defendants is charged with both furnishing alcohol to minors and unlawful acts relative to liquor, a violation of the Pennsylvania liquor code.
Steven Passarello, attorney for Prior, said the Pennsylvania statute and a state Supreme Court decision require prosecutors to show that a defendant knowingly furnished alcohol to someone under 21.
He said that while detectives confirmed ages of pledges who were served, there was no evidence Prior or other defendants knew the pledges' ages.
Veitch said Kurczewski only provided alcohol that was purchased by someone else and at the direction of more senior fraternity members.
Sughrue said Song was himself underage and a victim of furnishing by the brother who purchased the alcohol, who was previously identified by prosecutors as Craig Heimer.
Each defense attorney also argued that unlawful acts relative to liquor is intended for liquor license holders and not applicable to their clients.
The new hearing would not have taken place were it not for the recovery of deleted video from the basement, and Ripka also testified about the initial work to obtain surveillance video from the fraternity.
Ripka said that on Feb. 3, 2017, he went to the fraternity house as part of the investigation and saw the surveillance cameras. He discussed getting a copy of video with Becker, fraternity president Brendan Young and Tim Bream -– the live-in advisor and former head athletic trainer for the Penn State football team.
Becker, the house manager responsible for the video equipment, agreed to make copies. When Ripka retrieved them, he said there were only two clips totaling 21 minutes.
On Feb. 6, Ripka and another officer returned to the house to get full video from the night and went with Becker to the third floor room where the video recording equipment was housed.
Photos taken by Ripka at 10:39 a.m. showed Becker with his finger on a remote control that operated the surveillance equipment. Madaffari said the FBI lab that recovered the video found a “clear all data” log from that same time.
Police eventually determined the process to download video would take too long and obtained consent to take the digital video recorders. Becker told police some of the cameras, including those in the basement, had not been working for several weeks.
On cross examination by Becker’s attorney, Karen Muir, Ripka said he, another officer and an IT specialist were in the room the entire time with Becker. Ripka said he did not see anything appear on screen indicating a command to clear data.
Scicchitano previously testified about text messages between Becker and another fraternity member discussing deleting video after Piazza had been taken to the hospital.