9.19.18 Bailiwick News – Correcting false narrative of Beta Theta Pi events – Due Process and Substance Abuse Series, Part 4
By Katherine Watt
On September 12, 2018, PennLive published an op-ed about the aftermath of the death of Tim Piazza, parroting the narrative circulated by former Centre County District Attorney Stacy Parks Miller, current Attorney General Josh Shapiro and civil attorney Tom Kline, and echoed by a slew of mainstream media outlets.
PennLive reported: “Piazza fell down a set of stairs at the Beta Theta Pi house during a party and was left unattended for as long as 12 hours as a party raged through the night. The 19-year-old had a blood alcohol level between 0.26 and 0.38 percent. He had participated in an initiation activity called “The Gauntlet,” a series of drinking stations where he consumed 18 drinks in 82 minutes.”
It’s a false narrative, if the evidence presented at four preliminary hearings and dribbled out to defendants piecemeal during discovery over the last year is considered relevant to fact-finding.
The organized obstacle course portion of the night lasted less than 10 minutes, and Piazza was not visibly drunk when it ended.
Piazza voluntarily accepted an additional 12 drinks and other intoxicating substances during the following hour of unorganized partying.
Piazza fell, slid or tripped down (or up) many (or a few) stairs: witness accounts are few, rumors are many, and versions are varied. He was brought up to a couch. The party was over by about 2 a.m. Piazza was attended until 4 a.m. by people who thought he – like hundreds of other students they’d seen – was drunk and would sleep it off.
The first point at which Piazza’s dire condition became obvious to his peers was at 10:07 a.m., and it took them 41 minutes to call an ambulance, while they made several other calls to as-yet-unidentified other people for as-yet-unknown advice.
The video and text evidence relied upon by prosecutors clearly showed many of the defendants engaged in underage drinking and furnishing of alcohol to minors.
The video and text evidence plausibly showed some of the defendants engaged in hazing and reckless endangerment, particularly during “hell week” in the Spring and Fall 2016 semesters, assuming the Commonwealth can find victims willing to testify to the interrupted sleep, forced consumption of foods, paddling, and implied imminence of branding (not actually done).
But there was never any solid evidence that any of the defendants committed the crimes of aggravated assault, involuntary manslaughter and simple assault of Piazza. Prosecutors acknowledged repeatedly that they found no evidence of the “intent to harm” required under those criminal codes, and even admitted that such evidence probably doesn’t exist because the defendants didn’t want Piazza to get hurt or die.
The Commonwealth also withheld crucial counterevidence from police investigators, medical experts, the grand jury, defense counsel, and a series of judges. Withheld evidence included records of Piazza’s alcohol and drug addictions; his probable pre-existing liver and spleen damage from physical trauma, substance abuse or both; and his Cymbalta prescription and its documented side effects.
The Government further failed to present any evidence that any of the defendants knew about those pre-existing conditions when assessing his condition on the night of Feb. 2 and deciding to let him sleep off what they thought was ordinary Penn State student drunkenness.
Government prosecutors have emphasized the deletion of contemporaneous group text message threads as circumstantial evidence of criminal intent, as knowledge of guilt, as part of a deliberate cover-up.
But Government prosecutors also suppressed evidence that Beta Theta Pi national corporate officers directed the student members of the local chapter to delete those GroupMe text messages, for the purpose of preventing leaks to the media.
Aggravated assault, involuntary manslaughter, and simple assault were clearly overcharges from the very beginning of the prosecution in May 2017, designed only to burnish Parks Miller’s “tough on crime” veneer in a difficult re-election campaign that she decisively lost a few weeks later.
In bringing those serious charges against eight of the defendants, Parks Miller either failed to review the available evidence competently to provide a full picture of the events for investigators, experts, grand jurors, defendants and their counsel, judges and the public.
Or she had a full picture of the events – incriminating and exculpatory evidence – and deliberately withheld the exculpatory material from those who could have used it to ensure the impartial application of criminal laws to the tragic facts; to timely protect the due process rights of the individual defendants; and to protect the public policy and public health and safety interests of the Centre County community.
Magistrate Judge Allen Sinclair properly dismissed those charges more than a year ago, on Sept. 1, 2017, after the first preliminary hearing.
After multiple re-filings, appeals and three more preliminary hearings in March, May and August of this year, costing tens of thousands of public and private dollars, most of those same serious criminal charges have been dismissed several more times for lack of supporting evidence.
Most of the cases are finally moving toward trial, currently scheduled for February. Several defendants have either pled guilty to lesser charges such as underage drinking and furnishing, or are preparing to do so.
Discovery is still not complete. For example, Frank Fina, counsel for former Beta President Brendan Young, filed a motion on Aug. 31, 2018 seeking to postpone pretrial hearings scheduled for early September. Fina listed several evidentiary sets not yet turned over to defendants, including relevant grand jury testimony from the secret investigation conducted by Parks Miller between February and May 2017. (The September 2018 hearings were postponed after the appointed trial judge, Jonathan Grine, recused himself and the case was turned over to Judge Brian Marshall.)
When false narratives regarding alleged crimes are promulgated by Government prosecutors and amplified by media outlets long before trial; when exculpatory evidence is withheld from defendants for months after charges have been bound over for trial; when the prosecutors violating their ethical obligations to refrain from inflammatory public statements and to provide full discovery are left unchecked by cowardly judges; and when defense attorneys are gagged from correcting media errors by order of the same judges, defendants are denied their Constitutional right to due process of law.
Public trust in Government legitimacy takes another dizzying plunge.
And the complex web of misinformation eviscerates the public right to accurately understand traumatic community events, and the attendant public obligation to make sound public policy decisions in response to these tragedies.
Piazza’s Cymbalta prescription; side effects; warnings
According to medical records obtained in discovery, Piazza’s brother Mike told hospital staff on February 3, 2017 that Tim was taking Cymbalta for “tick movements in head” and had had an appendectomy while in high school.
Cymbalta (duloxetine hydrochloride) is a medication that increases serotonin levels in the brain. It’s typically used to treat depression and anxiety, but also used to treat fibromyalgia and chronic pain.
Cymbalta’s warnings and side-effects listed at drugs.com, drugsdb.com and other websites include warnings to avoid drinking alcohol while taking Cymbalta; that marijuana use with Cymbalta may increase side effects such as dizziness, drowsiness, confusion, and difficulty concentrating; that enlarged spleens have been found among patients taking Cymbalta; that Cymbalta may raise the risk of bleeding which can sometimes be life-threatening; that low blood pressure, falls, and blackouts have happened to patients taking Cymbalta; and that patients should reduce the risk of dizziness or passing out by rising slowly after sitting or lying down, and should use caution going up and down stairs.
Patient self-reporting sites document patients experiencing increased cravings for alcohol while prescribed Cymbalta, and increased consumption as a result of the cravings.
Attorney Steven Trialonas, representing defendant Daniel Casey, brought out Piazza’s Cymbalta prescription during his cross-examination of forensic pathologist Harry Kamerow during the March 2018 preliminary hearing.
Under Trialonas’ questioning, Kamerow testified that the presence of medications could have an impact on health outcomes, admitted he knew Piazza was taking Cymbalta, but stated he didn’t research Cymbalta’s side effects or the relationship between Cymbalta and alcohol consumption, and didn’t mention it in either of his two forensic reports. N.T. 3/23/18 at 143-144.
Government prosecutors have presented no evidence that Piazza informed the Penn State Interfraternity Council – as pledge database managers – or Beta Theta Pi members that he was taking Cymbalta, conveyed the side effects and warnings related to Cymbalta, or indicated that he could not drink alcohol while on the medication.
Defense counsel have presented evidence, on the other hand, that multiple Beta Theta Pi members reported to police investigators that they or fellow fraternity members had refused to consume alcohol at various prior fraternity events, whether due to illness, gluten intolerance, medications that shouldn’t be mixed with alcohol, or simply personal preferences for sobriety, and were still granted full membership in the organization.
Piazza’s history of voluntary heavy alcohol and marijuana consumption
Piazza voluntarily participated in dozens of heavy drinking and drug use events during the Fall 2016 semester and again when the Spring 2017 semester began in January 2017, with personal friends, with members of Ayuda/OPP (a THON organization), and with multiple fraternities.
Piazza’s heavy substance abuse was evidenced by GroupMe text records from Ayuda members’ phones including Piazza’s, later recovered by the Office of Attorney General, which served a subpoena on Microsoft, which owns the GroupMe application, to obtain them.
Attorney Trialonas elicited the testimony during the August 2018 fourth round of preliminary hearings. Trialonas had lead detective David Scicchitano read from copies of the text records, after Scicchitano admitted he had not seen the records obtained by the OAG via subpoena before that day. N.T. 8/21/18 at 33.
The text evidence showed Piazza consumed large volumes of vodka, beer, marijuana and other controlled substances, in addition to the prescribed Cymbalta, and described himself repeatedly to group text recipients as “fucked up,” vomiting, “twisted,” “worse than drunk,” “twisted as hell” and “high.” Id at 41-56.
Additional text records show Piazza was at a minimum openly discussing the exchange and consumption of cocaine and benzodiazepines with friends and acquaintances.
Government prosecutors presented no evidence that Piazza informed the Interfraternity Council or Beta Theta Pi members before the bid acceptance night that he was a heavy alcohol and marijuana user, likely suffering from existing alcohol-induced organ damage, likely to continue using alcohol and marijuana heavily, and at high risk for injury and illness due to his heavy alcohol and drug use.
There is evidence, however, that Piazza had recent prior knowledge of the relationship between alcohol consumption and medical problems involving organs, including the liver.
On Jan. 25, 2017, Mike Piazza texted his brother, telling Tim that Mike had noticed some symptoms that he didn’t want to “let slide,” so he drove himself to a walk-in clinic, where staff sent him to the emergency room. Mike texted Tim: “They also found that certain enzyme levels in my liver were twice what they’re supposed to be so I can’t drink until next week either (until I go to a follow up appointment).”
Piazza’s recent history of voluntary participation in contact sports/drinking games and severe abdominal pain
Text message evidence presented at the March 2018 preliminary hearing showed that Piazza was invited to and agreed to attend a “slapshot regatta” at Theta Delta Chi fraternity the night of Jan. 23, 2017.
Browser search evidence from Piazza’s phone – presented by Attorney Trialonas during cross-examination of Det. Scicchitano, showed that Piazza looked up “slapshot regatta” and found a definition at urban dictionary describing slapshot hockey as “a game in which two players take a series of slapshots at each other. One is a goalie, usually ill-equipped (uses pillows, couch cushions, cardboard, rope, and other household items)…” N.T. 3/27/18 AM at 14-15.
Between Sunday, Jan. 29 and Thursday, Feb. 2, 2017 Piazza suffered from severe abdominal pain, as evidenced by his own browser searches presented during Attorney Fina’s cross-examination of Detective Scicchitano on March 26, 2018 (N.T. 3/26/18 at 221-224) and a Jan. 30, 2017 text exchange with Piazza’s mother obtained by defense counsel during discovery.
At the March 26, 2018 preliminary hearing, Fina further established that Scicchitano was not aware of Piazza’s searches regarding abdominal pain prior to that day, and therefore didn’t investigate the issue of pre-existing abdominal pain, and didn’t provide that information to the investigating grand jury or the forensic pathologist, Harry Kamerow. N.T. 3/26/18 at 225.
As a result, neither the grand jury nor Kamerow reviewed the autopsy and other medical reports against the possibility that a pre-existing injury may have been a key part of Piazza’s cause of death.
Trialonas, attorney for defendant Casey, also questioned Scicchitano on March 26, 2018, playing a portion of an audiotaped Feb 27, 2017 interview with cooperating witness and Beta member Greg Rizzo.
In the recording, Rizzo told Scicchitano that Rizzo had first seen the bruise on Piazza’s abdomen when he went to Piazza at the foot of the stairs, and “he thought to himself there’s no way that bruise is from the fall because it’s so fully developed already.”
Kamerow testified that he had not been informed of Piazza’s participation in slapshot regatta, or that people at Beta had seen the bruise and concluded that it must have been caused by an injury that occurred before the bid acceptance night, because it was fully formed. N.T. 3/26/18 at 269.
Kamerow testified, on cross-examination by Fina, that spleen injuries can cause internal bleeding, and that a person with a low level of trauma to the spleen “can have it and eventually it heals. For sure you can have it for days and days.” N.T. 3/23/18 at 132.
Kamerow, under questioning by Chief Deputy Attorney General Andrew Notaristefano, testified that “There are some other examples where splenic lacerations can occur. You know, a young man with mononucleosis playing football,” (N.T. 3/23/18 at 89), because mononucleosis can enlarge the spleen and render it more vulnerable to damage.
Some spleen conditions identified by webmd include “enlarged spleen,” caused by viral mononucleosis (“mono”), liver disease including alcohol-induced cirrhosis, or other conditions, including prescription medications such as Cymbalta; “ruptured spleen” from injuries, which can cause immediate life-threatening bleeding or a delayed life-threatening rupture days or weeks after an injury; and thrombocytopenia (low platelet count), which can be caused by an enlarged spleen that stores too many platelets, leaving too few properly circulating in the bloodstream.
Some liver conditions identified by webmd include hepatitis (inflammation caused by viruses but also sometimes caused by heavy drinking, drugs, or allergic reactions); cirrhosis (long-term scarring and reduced function of the liver from any cause, including excessive alcohol consumption); liver failure, which can be caused by infection, genetic diseases, and excessive alcohol consumption; and ascites (liver leaking fluid into the belly, caused by cirrhosis).
Government prosecutors have presented no evidence that Piazza informed the Interfraternity Council or Beta Theta Pi members that he may have been injured several days prior to the event; that he had been suffering from severe abdominal pain in the last few days which might be related to injury- or alcohol-related spleen or liver conditions; or that he had attempted self-treatment for the pain.
Piazza’s voluntary arrival at Beta
On Feb. 2, Piazza voluntarily attended the bid acceptance event, walking into the house of his own free will, to participate in an obstacle course that pledges in prior years had either missed due to scheduling conflicts or refused to participate in for medical, gluten allergy, personal or other reasons, without being barred from membership for their non-participation.
Government prosecutors have presented no evidence to suggest that Piazza was forcibly brought into the house, that he was held there against his will, or that he asked to sit out the obstacle course due to his alcohol addiction, Cymbalta prescription, abdominal pain, personal preference, or any other reason, and was forced to participate over such objections.
During the obstacle course, video evidence showed Piazza was served four to six drinks in about eight minutes, any of which he could have refused, spilled or spit. By the end of those ten minutes, according to Scicchitano, Piazza didn’t exhibit any visual signs of intoxication such as stumbling and swaying.
Piazza’s voluntary continued participation
After the obstacle course, many pledges and brothers voluntarily left the house to pursue other college activities: studying, club activities, sleeping, visiting bars downtown or attending other parties.
Piazza voluntarily chose to stay for a social party in the basement, during which he was approached by other party-goers with up to 12 additional drinks, which he voluntarily accepted and drank, any of which he could have declined, spilled or spit.
He may have consumed “whip-its” of nitrous oxide during his time at the party, although the testimony presented at the May 4, 2018 preliminary hearing has been deleted from the official written transcript. (Bailiwick News, Sept. 5, 2018 and sidebar, this issue).
Nitrous oxide is usually dispensed by a medical professional such as a dentist, in a clinical setting mixed with oxygen, but it is also used to recharge whipped cream canisters. It is not generally illegal in the United States or controlled by the Drug Enforcement Agency, although sale and distribution for human consumption is illegal.
Recreational inhalation of nitrous oxide to get high is extremely dangerous. Documented effects of nitrous oxide – a sedative like alcohol – include respiratory depression, lack of coordination, euphoria, dizziness, loss of consciousness (blackouts), and falls, especially when combined with alcohol or marijuana consumption. Additional potential side effects include hearing loss, liver and kidney damage, limb spasms, central nervous system or brain damage, bone marrow damage, heart failure, and suffocation.
Eyewitnesses at the May 4, 2018 preliminary hearing who heard the original discussion about “whip-its” – the discussion later excised from the official transcript – have reported that Scicchitano testified he was aware of Piazza’s consumption of whip-its the night of Feb. 2, 2017, and that the police investigation revealed the canisters had been brought to the party by members of Trilogy, the female THON organization whose members attended the social party after their own separate bid acceptance ceremony.
Those eyewitnesses to the May 4 preliminary hearing refuse to make public statements about what they heard and saw in the courtroom, out of fear of prosecutorial and judicial retaliation.
After his voluntary consumption of up to six drinks during the 10-minute obstacle course, his voluntary consumption of 12 further drinks over the next hour or so, and his voluntary consumption of nitrous oxide, Piazza fell, slid, or tripped – witness testimony varies – on the basement stairs at the Beta Theta Pi house at about 11:22 p.m., was found unconscious by others at the party, and carried upstairs to a couch.
Monitoring by other party-goers
From 11:30 p.m. onward, Piazza was monitored by a rotating group of dozens of other fraternity pledges, members and party guests for the next three hours. Video evidence shows they attempted to restrain him to keep him from walking around and falling down more times, and to keep him from drinking more, until the party wound down at about 2 a.m.
After 2 a.m., most members and guests left the house to go home or went upstairs to go to bed.
Activity in the house and on the video surveillance system was minimal.
Unaware of Piazza’s Cymbalta prescription and its potential spleen enlargement and blood loss side effects; his pre-existing abdominal pain and possible underlying injury; his cumulative alcohol consumption that night and his nitrous oxide consumption; and given their extensive experience with other Penn State student alcohol parties, it was – in this author’s opinion – reasonable for the men and women at the party with Piazza to believe that he was simply intoxicated.
As a result, and again, in this author’s opinion, it was reasonable for them as a group, without any coordination, particular concern or intent to cover-up crime – to leave him on a couch to sleep it off, which they did after 4 a.m., when Ryan Foster left Piazza’s side.
Between 4 a.m., when Piazza was left on the couch, and 10:07 a.m., when other Beta members began to look for him and carried him out of the basement, the video footage shows that he was seen by four different men, none of whom had the combined knowledge of Piazza’s Cymbalta prescription and its side effects, his recent medical history of abdominal pain, his cumulative alcohol and nitrous oxide consumption the previous night, his fall or slide down the stairs and – most crucially – his additional movements and falls during the 4 a.m. to 7:55 a.m. window.
Those were witnessed only by the cold, electronic eye of the surveillance system, and later by police investigators.
Those falls were not witnessed in real time by anyone.
All four men – Jerry Coyne, John Martines, Frederick Steimling and Qobi Quanoo – during their brief interactions with him, given their own experiences with many, many drunk people after many, many Penn State student parties, reasonably saw Piazza as a drunk man sleeping it off.
The first time anyone had a full appreciation of Piazza’s dire condition was when a handful of them found him in the basement at about 10:07 in the morning.
Video evidence shows they waited 41 minutes to call for an ambulance, while they panicked, considered driving him to the hospital in one of their own cars, and made several other phone calls to individuals who haven’t yet been identified publicly, who gave them unknown information and advice.
Ryan McCann finally called 911 at 10:48 a.m.
Counterevidence showing the weaknesses of the Beta prosecutions is not presented to insult the memory of Tim Piazza or to minimize the horror of his tragic death at the age of 19 and the bottomless pain his loss has caused for his family and friends.
Counterevidence is presented because false narratives lead to ineffectual public policy and misallocation of scarce public resources.
Discussion of reforms needed for due process in Centre County is for another day.
But addiction is increasingly understood as a disease to be treated, not a crime to be punished.
Even in 19-year-olds.
Especially at Penn State.
A key and yet fragile part of the prosecution theory of the case is “extraordinariness.”
Government prosecutors have argued that what happened at the Beta house that night was outrageously unusual behavior that implicitly shocked Piazza himself and would have shocked any normal, non-callous person into action to call for medical help for Piazza.
But they’ve simultaneously argued that the defendants should have been able to foresee the outcome of the unfolding tragedy as it unfolded, because they had all (including Piazza) participated in extreme alcohol consumption events in the recent past, virtually identical to the bid acceptance night event.
If it was extremely and unusually dangerous activity, then it was equally extremely unforeseeable.
If it was a normal Thursday night during fraternity pledging season, then it was foreseeable, but not perceived by any of the participants – including Piazza – as particularly dangerous.
Everyone who lives in State College knows there was nothing extraordinary about what happened at the Beta Theta Pi house that night.
It’s happened in dozens of places all over State College every night, and it still does.
It points to an erosion of societal standards of acceptable behavior.
For example, in the 1950s, it’s hard to imagine the State College adult community tolerating enormous fenced-in fraternity and private house parties across the Highlands neighborhoods, with hundreds of students loudly yelling and screaming, music reaching blocks away, cups, cans, broken glass, used condoms, dirty underwear and other trash littering the neighborhoods, students wandering into the streets in front of traffic, students fighting, students vomiting, urinating and defecating on streets, sidewalks and yards, packs of stumbling students wandering from one bar to the next, and unconscious people being found along sidewalks and taken to the hospital blackout-drunk for stomach pumping.
By the same measure, it’s hard to imagine that any more than a tiny fraction of alumni in the 1950s coming back to town to tailgate at football games were drinking themselves stupid with their kids, and leaving acres of trash littered across the fields around the football stadium.
Yet by 2010, all of that was regarded as completely normal State College behavior by alcoholics and sober residents alike: every weekend, many weeknights, with more intense onslaughts for home football games, Homecoming, State Patty’s Day…
It’s all understood to be an unpleasant but intractable community nuisance. We’re all aware that if called, the police issue a few warnings and summary offense citations, and if reported to Penn State administrators, the interventions and consequences are equally ineffectual.
With the Beta cases, Commonwealth prosecutors have been focusing our collective disgust, self-loathing and anguished grief about the community-destroying aggregate actions of thousands of past and present adults and students that have rendered State College into a drunken shithole, onto the backs of a handful of young men who had extremely good reason to believe that they were simply participating in traditional Penn State social life.
Brendan Young, Daniel Casey and their co-defendants didn’t break what’s broken here, and they don’t have the political power or the resources to put it back together.
More broadly, whether alcoholic teenagers self-select Penn State because of its’ reputation as an alcoholic community, or whether sober students come to Penn State and then become alcoholics because they live in an alcoholic community and are bad at resisting peer pressure, it doesn’t matter.
They live in our town. Their problems are our problems.
If the people of State College intend to mitigate our profound alcohol and drug abuse problems, we have to start with an accurate understanding of them.
Demonizing a handful of young men as “callous” monsters pre-trial, in the hopes of convincing an inflamed jury pool to shuffle them off to prison and assess massive fines on their parents, is not going to help solve our problems.
Beefing up criminal penalties for the inherently indefinable act of hazing isn’t going to help either. Within a few years, anti-hazing laws will likely be thrown out as unconstitutionally vague, criminalizing contact sports tryouts as much as fraternity initiations, violating citizens’ right to freedom of assembly, and providing a poor substitute to laws criminalizing assault, false imprisonment, kidnapping, and torture.
So here’s a specific counterproposal to the legislative hazing statute update introduced last spring and the Beta show trials scheduled to begin next February.
If we want alcoholic students to get each other help when someone seems to be in big trouble, then we have to model that behavior and get help to them all. Because they’re all in big trouble. They’re alcoholics, they’re very sick, and they need a lot of help getting sober.
We’ll have to do it without the help of Penn State’s administrative leadership, which is hopelessly compromised by its addiction to football tailgating revenue, Greek alumni donations, and the positive press generated by THON: operated by the same Greek organizations at the center of the local student alcohol abuse epidemic.
Penn State’s leadership has made its indifference to student well-being abundantly clear through decades of under-investment in on-campus dormitories, and outsourcing of undergraduate housing and supervision to private real estate developers and municipal police.
We’re going to have to do it with minimal help from the Pennsylvania legislature, which is too compromised by its own addiction to the revenue stream provided by alcohol sales and taxes through the Pa. Liquor Control Board.
If the Pennsylvania Legislature can take the simple step of authorizing municipalities to levy local alcohol taxes – as described by State College Borough Manager Tom Fountaine and former State College Police Chief Tom King in the Centre Daily Times’ excellent “Exploring the Cost of Alcohol” series, then the Borough of State College should seize the vacant Beta Theta Pi fraternity house at 220 North Burrowes St.
Inside that house, the Borough should establish a publicly owned and operated inpatient addiction rehab facility serving Penn State students and alumni struggling with substance abuse. It needs to have addiction counselors on call 24/7 to respond anywhere in the Centre Region with first responders, to accompany overdosed individuals from the scene of the overdose, to the hospital and then right into the inpatient program.
It should be funded by local taxation of local alcohol sales.