As grand jury probes PSU pledge death, history shows hazing prosecutions difficult to pursue

When Gary Bogenberger read about the alcohol-related hazing death of Pennsylvania State University sophomore Tim Piazza earlier this year, the story felt uncomfortably familiar.

Five years ago, Bogenberger's own son David died during a booze-fueled fraternity pledge ritual at Northern Illinois University — an event that later became the focus of what was then the nation's largest hazing prosecution.

Now, a grand jury in Centre County is weighing a similar course as it probes the circumstances surrounding Piazza's death.

Investigators have been gathering evidence for months. And defense lawyers say multiple defendants could within weeks face charges ranging from furnishing alcohol to minors to manslaughter.

Despite evolving public awareness of hazing's dangers and a recent willingness by prosecutors to assess serious criminal penalties, cases like the one that produced 22 convictions for David Bogenberger's death remain exceedingly rare and difficult to pursue, legal experts say.

"I'm still waiting on universities and fraternities to wake up," said Bogenberger, 67, of Osprey, Fla. "It hasn't happened yet, and it certainly appears that making individuals criminally responsible is going to be the answer."

Culpability in alcohol-related hazing is not always an easy case to prove.

Investigators often encounter walls of silence when trying to penetrate the insular groups whose members have pledged oaths of obligation to one another. And prosecutors must reckon with still-lingering attitudes that hazing victims — especially in alcohol-related deaths — bear blame for their own reckless behavior.

"Fraternities have been almost beyond the law in being held criminally responsible," said Douglas E. Fierberg, a Washington-based lawyer who has represented victims' families in several high-profile hazing cases. "But that tide has slowly shifted."

The prosecution surrounding the death of Bogenberger's son could provide a roadmap.

The circumstances of David Bogenberger's final hours bear an uncanny resemblance to Piazza's.

Like Piazza, Bogenberger was an affable 19-year-old, looking for acceptance in his school's Greek system. To that end, like Piazza, he participated in a pledge ritual that called for downing vodka shots and other alcohol at stations throughout a sprawling fraternity house, a ritual that ultimately led to his death.

Piazza, a sophomore engineering major from Lebanon, N.J., fell down a flight of stairs and was knocked unconscious at the Beta Theta Pi house on Penn State's main campus Feb. 2.

Fraternity members moved him to a couch upstairs but failed to call for emergency help until the next morning, nearly 12 hours later. He died the next day at Hershey Medical Center.

Bogenberger, too, passed out and died after his bout of heavy drinking at the Pi Kappa Alpha house at Northern Illinois University. Tests showed a 0.4 percent blood-alcohol level — more than five times the legal limit for motorists and enough to cause the freshman finance major's heart to stop.

There was little question soon after, Bogenberger's father said in a recent interview, that DeKalb County prosecutors were interested in pursuing a criminal case.

Just a year before, prosecutors in Florida had successfully charged members of the Florida A&M University marching band in connection with the death of Robert Champion, a drum major who died during a hazing ritual that involved band members kicking, punching, and hitting him with straps, drumsticks, and other objects.

Experts single the case out as a landmark in the growing body of hazing-related criminal case law.

"Prosecutors methodically went through that case and got what they were after," said Peter F. Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University in Florida. "It showed others across the country that they could successfully prosecute hazing events that they might have been wary of pursuing before."

But as they pursued their own case, investigators in Bogenberger's death encountered roadblocks common in criminal investigations of hazing. Investigators in other cases have accused fraternity members of lying, coordinating stories, or destroying evidence to protect themselves and their institutions.

Fraternity members and guests at the Pi Kappa Alpha party were instructed not to contact paramedics and were told to delete cellphone video and photographs of intoxicated pledges the night David Bogenberger died.

Still, prosecutors felt their case was strong enough to charge 22 fraternity members, including five Pi Kappa Alpha leaders who pleaded guilty to reckless conduct and were sentenced to various terms of probation and community service

For Gary Bogenberger, that wasn't enough.

"Was I happy with the result? Absolutely not. Do I understand it? Yeah," he said. "My left brain gets it. My right brain wishes they had been strung up by their you-know-whats."

For better or worse, said Fierberg, the civil attorney, some judges and juries remain reluctant to impose harsh penalties in hazing cases, where tragic outcomes are rarely the intention of the perpetrators.

"You're dealing with potential defendants that most likely come from good backgrounds, have their whole lives in front of them, and don't have past criminal records," he said. "Very few people ever go in truly intending to harm the victim. They intend to engage in reckless behavior that they think is partially funny or will allow them to demonstrate commitment, and then things go horribly wrong."

Yet, in Pennsylvania, another case winding its way through court in Monroe County may result in stiffer penalties.

Two years ago, prosecutors there charged 37 members of the Pi Delta Psi fraternity at Baruch College in New York in the hazing death of 19-year-old freshman Chun Hsien "Michael" Deng.

The case — which included third-degree murder charges against five current and former members and the fraternity itself — drew accusations from defense lawyers of overreach.

"My biggest problem with the way this investigation was handled was its broad sweep," said Hugh H. Mo, a lawyer representing one of the Baruch defendants,  at the time. "Whether you were inside or outside, whether you slept through the weekend, everyone was charged."

But several factors distinguish the Baruch case. Within hours of Deng's 2013 death during a ritual at a Poconos retreat, investigators swept in to gather cellphones to track Internet searches and messages that implicated his fraternity brothers in various crimes.

Investigators probing the death of Penn State's Piazza remain hopeful, too, that they have objective evidence that could swing a prosecution in their favor: video taken from the Beta Theta Pi fraternity house's security system on the night of Piazza's death.

As the grand jury in that case nears the end of its investigation, Tim Burke, an Ohio-based attorney who represents fraternities across the country, said he hopes it doesn't decide to assign blame indiscriminately.

"We can go overboard," he said. "At some point, the system has to sort out the folks that are truly responsible and those who are not."