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Defense challenges investigatory bias in Beta Theta Pi case

A preliminary hearing was just held in the Penn State Beta Theta Pi fraternity hazing case. As you may know, a 19-year-old pledge died in 2017 after allegedly undergoing a hazing ritual in which he may have consumed as much as 18 drinks in slightly less than an hour and a half. The young man suffered several falls and died of his injuries.

Twenty-six fraternity members face criminal charges, although the preliminary hearing involves only 12 of the defendants. The fourteen other defendants underwent a preliminary hearing last month.

In Pennsylvania criminal cases, a preliminary hearing is held after the charges are filed but before trial in order for a district judge to determine whether the state has sufficient evidence to prove each element of the crimes being charged. The district attorney and the defense can present evidence, but a win for the prosecution merely means that the case will move forward to trial. A win for the defense would result in the dismissal of the charges.

Earlier in the week, Attorney General Josh Shapiro announced the state was dropping assault and involuntary manslaughter charges against five fraternity members. The defendants still face charges including reckless endangerment, hazing, alcohol-related charges, evidence tampering and obstruction of justice.

During the preliminary hearing, the state presented previously-deleted video from the basement of the fraternity house. Police detective David Scicchitano had parsed the video into individual compilations following several of the fraternity brothers on the night of the incident. The prosecutor described the footage as a "grainy video," and it suffers from flashing, multicolored lights and other sporadic lighting.

All of the defense attorneys objected to the admission of the video, saying it wasn't clear enough to allow identification of any particular student.

The long process of creating the individual compilations could also lead to subconscious investigatory bias, argued one defense attorney.

The judge overruled that objection but left the attorney an opening to revisit the issue later. "I happen to agree with you. From this particular video, I didn't see him (a fraternity member) take a swig from the bottle," said the judge. "You may have lost the battle, but won the war."

The hearing also revealed that the deceased first appeared intoxicated at 9:54 p.m., according to a police affidavit. One attorney noted that his client had allegedly served the young man at 9:46. Since the young man didn't appear drunk, he argued, it would not have been reckless for his client to have served him. The police detective appeared to agree.

None of the defense attorneys planned to call witnesses, which is not unusual. The judge's ruling on whether the case can move forward is expected shortly.

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