Author: Hank Nuwer

Salt Lake Tribune
July 20, 2009

http://www.sltrib.com/News/ci_12872495

Prosecutors make splash with hazing charges, but they’re not sticking
Michael Stark’s family settles with Greek chapters after pledge’s alcohol death

By Brian Maffly

Six months after Cache County filed hazing charges against 12 Utah State University students and their Greek-letter societies, no one stands convicted of hazing in connection with the November alcohol poisoning of fraternity pledge Michael Starks.

First District Judge Thomas Willmore has meted out punishment, including four jail sentences, but for offenses other than hazing — the crime of encouraging or inducing someone to engage in humiliating or dangerous behavior as a condition for membership in an organization.

Willmore is fielding motions to dismiss by the four remaining defendants, raising the possibility that the state’s first major hazing prosecution will result in no hazing convictions. But prosecutors are not dismayed.

“Our goal has been to bring focus on the issue of underage binge drinking and the prosecution has been successful in doing that,” said Tony Baird, Cache County’s chief criminal prosecutor. “We successfully prosecuted the person who had bought the bottle [of vodka], who brought the bottle, who had the bottle and then threw the bottle away.”

Still, the Starks case illustrates how hard it can be to stretch context-based criminal laws, such as the hazing statute, to fit the facts of a real-life situation.

“I would like to see some of these hazing charges stick. I am grateful Judge Willmore sees this case for what it is,” said Starks’ brother George, a Salt Lake City coffeehouse owner and book publisher. “You can’t get any clearer case than Michael’s that’s a hazing. The statute needs to be clarified.”

Starks, an 18-year-old freshman, was pledging at Sigma Nu Fraternity when his would-be brothers voted him worthy of “capture” by the sorority sisters next door at Chi Omega. In the company of eight teenaged sorority women, Starks slugged a toxic dose of vodka at an off-campus Logan home and succumbed a few hours later while sleeping at the Sigma Nu house.

The Starks family has reached an out-of-court civil settlement with Sigma Nu and Chi Omega. The May 5 settlement bars either side from discussing its terms and circumstances, said the Starks’ lawyer, Charles Thronson.

Of the 12 students charged with hazing, three were dismissed, four pleaded guilty to other offenses — furnishing alcohol to a minor and obstruction of justice — and sorority member Sadie Green entered a plea in abeyance to hazing that will be expunged when she completes probation.

The remaining four argue that their conduct, as alleged by the prosecution, doesn’t fit the elements of hazing as defined by Utah law. Meanwhile, Willmore dropped a felony hazing charge against the Sigma Nu and Chi Omega chapters because their national offices revoked their charters, rendering further prosecution moot.

Willmore sentenced a 13th student, 22-year-old Erin Anthony, on July 13 to eight days in jail for buying the vodka consumed at the capture event. On July 20, he is scheduled to sentence Brittany Packham, 20, for bringing the liquor.

Some defense lawyers initially planned to challenge the charges on the grounds that Utah’s hazing statute is unconstitutionally vague. Its language is so broad the law could be interpreted to criminalize legitimate aspects of collegiate life, even basketball practice.

“It may punish more than it was intended and may infringe on some constitutionally protected activity,” said Chi Omega’s lawyer, Mark Moffat. “I dare say there are individuals involved in rigorous workouts who are in violation of this statute.”

Was booze part of the plan?

But Moffat and other lawyers found easier ways to attack the charges. For example, Starks’ initiation was not contingent upon his participation in the capture event and many of those charged said they did not know alcohol was going to be provided, lawyers say.

Sigma Nu president Cody Littlewood claims he did not participate in the fraternity vote to set up Starks for the capture, nor did he “authorize” the consumption of liquor.

“It wasn’t a pledge event in furtherance of the organization,” Littlewood’s attorney Clayton Simms argued before Willmore at a hearing last April. “Mr. Littlewood would never have condoned an event where Mr. Starks would be encouraged to drink a large amount of alcohol.”

However, two Sigma Nu members, Colton Hanson and John Lynn, told police they went through the capture last year and became very drunk at the hands of the sorority sisters, prosecutors say.

“Of course, it’s a sponsored activity. It had been happening every year,” said Tony Baird, Cache County’s chief criminal prosecutor, in court. “You have this history of this ritual always involving alcohol.”

Chi Omega sister Whitney Miller, who is serving 30 days in jail for supplying the vodka, told police she coordinated the capture of Starks and fellow pledge MacKenzie Perry, 21, with Littlewood and Christopher Ammon, another Sigma Nu officer. She was instructed to not let “Mack drink too much” because of his small size, according to court papers.

“If there wasn’t supposed to be any alcohol, why are they telling her ‘Don’t let one of them drink too much?'” Baird said.

Willmore has until early August to rule on Littlewood’s motion and is fielding similar motions brought by three sorority defendants — McKell Miner, Alexandra While and Mallory Mitchell. The women say they had nothing to do with the liquor. The state is inappropriately extending culpability to people who were present but did not participate in the drinking, said Miner’s lawyer, Jeremy Delicino.

“She asked to leave when the alcohol came out. She didn’t consume any alcohol and had to wait for a ride,” Delicino said.

Some defense lawyers have blamed Starks for his fate, citing evidence he had been drinking heavily last fall and even earlier, an assertion the Starks family disputes as “slanderous.”

If the freshman had a problem with alcohol, it was something he developed under the influence of his new fraternity friends, George Starks said. Michael was the youngest of six in a close-knit family.

“He was just coming out of his shell. He was such a mama’s boy,” George said. “He was never in a party atmosphere until he got to college. He got really swept up in it. He fell in love with that. He wanted to do everything he could to be part of their organization and lead it.”

Arrin Newton Brunson contributed to this report.

Michael Starks, 18, died Nov. 21 after drinking vodka at a fraternity ritual, Cache County prosecutors allege. Twelves Greek members and their chapters, Sigma Nu fraternity and Chi Omega were charged with hazing and related offenses in connection with the tragedy. A 13th student was charged only with providing alcohol.

Where the defendants stand

Cody Littlewood, 20, Sigma Nu president, charged with hazing. Motion to dismiss pending.

McKell Miner, 19, Chi Omega member, charged with hazing. Motion to dismiss to be argued Oct. 1.

Alexandra White, 20, Chi Omega member, charged with hazing. Motion to dismiss to be argued Oct. 1.

Mallory Mitchell, 20, Chi Omega member, charged with hazing. Motion to dismiss to be argued Oct 1.

Whitney Miller, 20, Chi Omega member, pleaded guilty to furnishing alcohol, hazing dismissed. Had multiple prior alcohol violations. Sentenced to 30 days in jail.

Brittany Packham, 20, Chi Omega member, pleaded guilty to furnishing alcohol to a minor, hazing dismissed. Sentencing set for July 20.

Erin Anthony, 22, USU student, charged with furnishing alcohol to a minor. Pleaded guilty and will be sentenced Monday.

Christopher Ammon, 20, Sigma Nu officer, pleaded guilty to furnishing alcohol, hazing dismissed. Fourteen days in jail.

Grant Barney, 23, Sigma Nu member, pleaded guilty to obstruction of justice charge, hazing count dismissed. Eight days in jail.

Sadie Green, 19, entered a plea in abeyance to hazing. No jail.

Timothy Weber, 25, Sigma Nu’s vice president, charges dismissed

Brittany Bell, 21, Chi Omega member, charges dismissed

Cecily Kiss, 19, Chi Omega member, charges dismissed

Hazing and the law
Utah is one of 44 states with criminal hazing statutes, many passed in the 1970s. The Utah law makes it a crime to “intentionally, knowingly, or recklessly commit an act or cause another to commit an act that endangers the mental or physical health or safety of another… and is for the purpose of initiation, admission into, affiliation with, holding office in, or as a condition for continued membership in any organization.” The law specifically points to physical brutality, consumption of liquor, and subjecting people to sleep deprivation, social isolation and extreme embarrassment. Willing participation of the victim is no defense.

Copyright 2009 The Salt Lake Tribune.

Coopersville School District Has a Duty to Release Sum

by Hank Nuwer

A hazing settlement in the news in Michigan is a case of deja vu all over.

Back in 1997, Rancho Bernardo High School (California, Poway School District) endured the physical hazing and sexual assault of a junior varsity baseball player.

After a rookie baseball player was sodomized with an object in the locker
room, he settled for $675,000 with the district, according to the San Diego Union-Tribune. The paper had gone to uncommon lengths to get the school district to reveal any details at all.

Court records showed that the attack was part of a six-year pattern of assault in several sports and was deeply entrenched in school athletics, according to the newspaper which cited facts from these court records.

The key to why the Union-Tribune fought so hard is that the Poway district was forking over money from taxpayer dollars.

Now flashforward 12 years and reporter John Tunison of The Grand Rapids Press in Michigan has reported this news item on July 15: the “Coopersville school district settles [2007] hazing case for undisclosed sum.”

Undisclosed sum. Shades of Poway. Red flag up and waving for the Coopersville school district to see.

The quotes he supplied echoes precisely what the embattled officials of the Poway school district said twelve years ago.

“We don’t want everything stirred up and have any animosity toward these kids,” Superintendent Kevin O’Neill said, according to the Press.

The federal judge who approved “an undisclosed settlement Tuesday between the Coopersville school district and two victims of 2007 hazing incidents,” made “a deal officials said is confidential to protect victims from harassment and move the community forward.”

I am not questioning the sincerity of the statement by Supervisor O’Neill nor the good intentions of the judge. But a judge’s job is not to rewrite the law but to carry out the law. The job of the Coopersville supervisor is to tell taxpayers exactly where their dollars are spent–or if the settlement will be covered by insurance [in which case it may be even more sticky for the superintendent to reveal the amount. But if that is true, the superintendent can put responsibility on the insurance company, not the judge).

As a former assistant prosecutor in Michigan familiar with hazing cases reminded me today, confidential settlements in civil cases are very common. Both parties must agree to the resolution and the confidentiality agreement. The agreement usually provides that if a party violates the confidentiality agreement, additional sanctions can be imposed–usually monetary–that would cost (in this case) the school district additional funds.

The judge usually has no say in the matter. It is not up to the judge to impose her or his will upon the settlement or the agreement. If the parties agree to the confidentiality, the judge says, “Okay.” According to the former assistant prosecutor, in other cases it has occurred that school administrators attempt to shift responsibility to the judge when it is, after all, an agreement between the parties to the litigation. Is it possible that Superintendent O’Neill, through his quotes, hoped to shift the burden to the judge as to why the settlement was confidential.

Of course a judge retains the discretion in any case to approve or disapprove a settlement, but it would be rare for a judge to nix such a civil case settlement. There are hundreds of pending cases in a federal court and the vast majority of cases are settled before trial. It behooves a judge to bring as many cases as possible to early resolution.

One hopes that the Press was quoting from an official court document in writing for me to believe that a judge noted on the record or to the parties that the court decided on its own to add a condition of confidentiality. Without such a document the superintendent might have been allowed to get away with fluff (and remember that a judge cannot and except in unusual situations should not respond to media questions about a case).

Nonetheless, it would be a good thing for the newspaper to reveal the amount. A few points soberly to consider:

If settlements could not be maintained as confidential, the judicial process could–I am not predicting that it would–back up, according to my former assistant prosecutor friend. The confidential aspect of settlement agreements may factor in plaintiff or defendant (or both) resolving cases short of trial. Some parents of hazing victims do not want people to know how much or how little they received, as was the case following a death years ago at Alfred University.

I also agree the names of the victims should be omitted. Is there anyone in the Coopersville school district who doesn’t already know the names? But important information that the public needs to know and that may influence public policy elsewhere in Michigan or even nationwide needs to come out with traditional public disclosure. This is probably not an issue for the Press. Except in a few cases (most notably Robertson High School in New Mexico in 2009 where perpetrators saw their names in print), newspapers tend to take the high road of protecting the names of all juveniles no matter what their involvement.

In other words the rights of the victims can be protected without taking away the right of the public to judge its school officials.

And at Poway, there certainly were huge questions raised about the stewardship of Poway school administrators. Those questions only could be raised by full disclosure and written documents, not what turned out to be the self-serving assertions of Poway administrators.

So what we have here is the need for precedent in such cases. The settlement amount may be low after attorney fees and expenses are paid. Other families of victims may be reluctant to take a case to court, but it is the responsibility of the newspaper to report the facts, not be an advocate here.

The San Diego newspaper did what it was supposed to do, unpopular decision or not with the District.

It showed taxpayers what their tax dollars were paying for and why.

Coopersville in my opinion too has a duty to reveal all here in the newspaper. All, I mean, but the names of victims and the perpetrators.

Is this painful?

You bet. But it may stop another school district from becoming another Poway or Coopersville in the future because school boards and school administrators elsewhere are getting a hard lesson in the necessity of hazing prevention.

It’s my job as an author of four books on hazing to try to track these cases so that reporters representing the public good have some case history to examine. All these hazing cases are slowly but surely going to be in the archives of the Buffalo State Hazing Collection I started for reporters and scholars to check.

The buck doesn’t stop here just because a school supervisor–likely with the approval of the board on advice of counsel–says so.

The buck stops with what a good newspaper can uncover. That is why the Grand Rapids Press needs to file a freedom of information request.

And if you feel strongly one way or the other, why not write a letter to the editor?

http://www.gr-press.com/main/

Update 1:34 p.m.
Update: 5:33 p.m.

Story link. Teachers approved by board for classroom return at Wilson High School in New York State.

New Mexico tv and ridio stations announced on July 14 that a principal Robertson High School hazing violated his probation by attending a concert and could serve one year in jail.

Link: http://news.cincinnati.com/article/20090713/NEWS0107/907140320/Milford+not+immune+in+bully+case+

cincinnati.com

July 13, 2009

Milford not immune in bully case

By Barrett J. Brunsman
bbrunsman@enquirer.com

MIAMI TWP. – The 12th District Court of Appeals in Middletown on Monday upheld a Clermont County judge’s decision that the Milford School District doesn’t have immunity against claims of bullying.

A lawsuit filed last year on behalf of a boy who was bullied by fellow members of the Milford High School freshman basketball team can proceed against the coach and school district, and it could have national implications, a local attorney said.

“Little case law exists regarding (such) challenges,” said attorney Joe Braun of Strauss & Troy, who filed the suit on behalf of the boy and his family. “This area of the law is still developing, and it’s drawn national attention.

“I was recently contacted by attorneys in Tampa who were handling a case with similar facts,” Braun said. “They were looking to this case for guidance as Florida law had little precedent in this area as well.”

Even so, Ohio law is clear that the case against the school district and coach Thomas Kilgore should continue, Braun said.

An attorney handling the case for the school district, Bernard Wharton, didn’t respond to an Enquirer request for comment on the decision.

The Milford School District could appeal Monday’s ruling to the Ohio Supreme Court, or it could try to settle the suit or defend itself at trial.

The suit asks that the district and coach be ordered to pay unspecified punitive and compensatory damages.

Three teenagers admitted in Juvenile Court they bullied the boy, who was 14. They pinned their teammate to the ground and repeatedly punched him in the stomach.

One boy then tried to force sexual contact, according to the suit. That bully and his parents, Karen and Thomas C. Settles, are also named as defendants, but they were not part of the appeal.

The appeals court overruled Judge Jerry R. McBride of Common Pleas Court in tossing out a claim of negligent supervision against the school district and coach.

However, the appeals court upheld McBride’s ruling that the school district and coach could be sued on a claim of civil hazing or bullying.

The lawsuit alleges the coach “contributed to and encouraged a pattern of hazing and bullying activities which eventually led to the assault,” Judge William Young noted in the unanimous decision of a three-member panel of the appeals court.