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Judge to rule in May on hazing statute in Bogenberger death case

Published: Thursday, April 24, 2014 11:46 p.m. CDT • Updated: Thursday, April 24, 2014 11:56 p.m. CDT
(Danielle Guerra – dguerra@shawmedia.com)
Alex Jandick (from left), James Harvey, and Patrick Merrill listen to DeKalb County Judge John McAdams during Thursday's hearing. Jandick, Harvey, and Merrill with their attorneys went before McAdams arguing the Illinois hazing law is vague and therefore unconstitutional. The men were are officers in the Pi Kappa Alpha fraternity on the campus of Northern Illinois University where alcohol was a contributing factor in the death of pledge David Bogenberger, who's body was found on Nov. 2, 2012 in the fraternity's house.

SYCAMORE – A DeKalb County judge plans to rule May 29 on the constitutionality of hazing charges against four of the fraternity members accused in the November 2012 death of a Northern Illinois University freshman.

Illinois’ hazing law prohibits people from requiring students to perform any unauthorized act that results in bodily harm in order to be accepted in a group connected with a school. David Bogenberger, a 19-year-old Palatine High School graduate, died at the fraternity house with a blood-alcohol content of 0.351 percent after a nonsanctioned party at which fraternity members and other guests ordered the pledges to drink vodka, authorities said.

DeKalb County Associate Judge John McAdams heard arguments Thursday from attorneys for former Pi Kappa Alpha fraternity president Alex Jandick, 22, of Naperville; former vice president James P. Harvey, 22, of Northfield; and former secretary Patrick W. Merrill, 21, of DeKalb. Former pledge adviser Omar Salameh, 22, of Burbank, did not come to court as required Thursday; McAdams will hear from his attorney May 13.

The men claim the state’s hazing statute is too vague about what behaviors are illegal, thus giving authorities too much discretion in charging people with it. They took issue with the phrase “an act,” emphasizing that other states’ laws mention reckless acts or acts likely to cause harm.

Defense attorney Jack Donahue, who represents Jandick, used the example of his fraternity, several years ago when he was in college, requiring a member to get a plaster cast of a specific part of the lion statue in front of the Art Institute. He argued that requirement doesn’t seem dangerous, but could be considered hazing under the Illinois law if the pledge was hurt doing it.

Defense lawyers also criticized the part of the law that criminalized an act resulting in harm, compared it with other states, which criminalize acts that cause injury or that are likely to cause harm. J. Brick Van Der Snick, who represents Harvey, called Illinois the “look-back state.”

“Let’s see what occurred; let’s look back to see if we think it’s a violation of the statute,” Van Der Snick said.

Meanwhile, prosecutors argued that case law defines as hazing similar behavior as to the allegations in this case. NIU policy clearly prohibits the actions taken at the party, Assistant State’s Attorney Julie Visher said.

“They knew what was going on and should have known that this is illegal,” Visher said.

She also said that case law does not allow defendants to challenge the constitutionality of a law based on hypothetical situations, just the situation they face.

A felony hazing charge remains pending against Steven Libert, 22, of Naperville, whose case is before DeKalb County Presiding Judge Robbin Stuckert. Libert has filed a similar motion, but Stuckert won’t address it until McAdams makes a decision. Libert is next due in court June 3.

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