As the third day of the criminal trial of three former Sigma Alpha Epsilon fraternity pledges unfolded on Wednesday, the defense urged the judge to close the case, battering the prosecution for providing insufficient evidence that the pledges who allegedly fed George Desdunes ’13 alcohol before he died caused or could have foreseen Desdunes’ death.
Judge Judith Rossiter J.D. ’86 denied the request to dismiss the case against the pledges, saying the 1965 legal precedent the defense raised, People v. Lenti, was dated and neither invalidated evidence nor showed the prosecution had failed to prove beyond a reasonable doubt the pledges’ guilt.
Citing witness Greg Wyler’s ’12 recollections of the night with Desdunes’ autopsy report, grand jury testimonies and evidentiary documents, the defense acknowledged that on Feb. 25, 2011, Desdunes was “kidnapped,” zip-tied and blindfolded by SAE pledges. The only other brother known to be kidnapped, Wyler said Tuesday that he was fed what seemed like Pixie sticks, strawberry syrup and vodka during the mock kidnapping.
Although hours later, Desdunes was found unresponsive in the SAE house where he was deposited, and later died at Cayuga Medical Center, Desdunes was not, the defense argued, killed by the one-hour kidnapping ritual at the North Campus townhouse.
Asking Rossiter to dismiss the charges of first-degree hazing and unlawfully dealing with a child, Raymond Schlather J.D. ’76, who represents Max Haskin ’14, disagreed with the prosecution’s argument that the three former SAE pledges, Haskin, Ben Mann ’14 and Edward Williams ’14, caused or could have reasonably foreseen Desdunes’ death.
Desdunes, Schlather said, had told a friend he suspected he had walking pneumonia on Feb. 24, 2011, and filled prescriptions for azithromycin, patanol and meclizine at Gannett Health Services the day before he died. That friend later testified that “‘what I knew was not readily apparent to the rest of the world because I lived with this guy,’” Schlather said.
Schlather cast doubt that the pledges were aware of Desdunes’ poor health and could have reasonably foreseen the effects of mixing alcohol with whatever medications Desdunes may have consumed prior to the kidnapping. Pointing to the pathology report — which stated that Desdunes had swollen glands and congestion at the time of his death — Schlather argued that illness may have played a role in Desdunes’ death.
“The evidence the prosecution has provided with respect to the cause of death shows that there are causes [of Desdunes’ death] other than what happened in the one-hour period inside the townhouse,” Schlather said. Citing Desdunes’ pathology report, he read, “the cause of death is acute respiratory failure secondary to acute ethanol toxicity.”
But Assistant District Attorney Andrew Bonavia insisted that Desdunes died of acute ethanol toxicity — not because of his illness.
“He didn’t die because he had swollen glands,” Bonavia said.
Schlather, however, had a different reading of the report.
“On its face, it says that [Desdunes] died because he had respiratory failure and there was a lot of alcohol in his body. The question you have before you, judge, is where did the alcohol come from?” Schlather said, asserting that the pledges had not fed Desdunes the alcohol that ultimately killed him.
Pushing his point, Schlather said that the amount of alcohol the pledges allegedly fed Desdunes at the kidnapping event — which Jon Blechman, Mann’s lawyer, argued could have been fake — was not lethal.
Calling former SAE brother Kyle Morton ’12 to the stand, the defense sought to bolster its argument that Desdunes had consumed large amounts of alcohol before the kidnapping event even begun.
In the half-hour Morton estimated he and Desdunes were in his room around 10 p.m. on Feb. 24, 2011, Morton said they were drinking whiskey — “Jack Daniels or Jameson.”
“How were you consuming that whiskey?” Schlather asked.
“Straight out of the cup,” Morton replied.
Prodding further, Schlather asked, “And how much did Mr. Desdunes consume?”
“We both finished our cups,” Morton said, estimating that the cup, typical of a “traditional beer pong cup” SAE brothers used, contained nine ounces of alcohol.
Soon after, Morton said, he parted ways with Desdunes to participate in a beer pong tournament — his last contact with Desdunes.
The drink, by the defense’s estimations, was just one of several Desdunes had before the kidnapping event. Desdunes consumed between five and seven drinks sometime between 11 and 11:30 p.m. on Feb. 24, 2011, Schlather said. But each of these drinks, he said, contained at least three ounces of alcohol, meaning when Desdunes “walked out of the fraternity around midnight, he had consumed even more alcohol than was readily evident.”
“A shot is not one ounce of alcohol. A shot at SAE is three ounces of alcohol,” Schlather said, pointing to a photograph of a shot glass found at SAE.
Bonavia disagreed with Schlather’s calculations, suggesting they were flawed and saying, “I don’t understand where that came out from.”
Furthermore, Bonavia said, Desdunes “didn’t appear intoxicated” and had no trouble calling for a ride to return to the SAE fraternity from Collegetown prior to being kidnapped by the pledges.
“Do we believe that he would have passed away if he had gone home? That’s where this kidnapping comes into play,” Bonavia said.
The picture was different when the kidnapping was over and Desdunes was returned to the SAE fraternity, Bonavia said. By then, Bonavia said Desdunes, slumped over the shoulders of the pledges, was in such a condition that Wyler and the pledges “knew he was so bad off that what might happen to him — what actually happened to him — could occur.”
The two sides also sparred over whether Desdunes had consented to participate in the kidnapping event that led to his death. Although Blechman, Mann's lawyer, characterized the events of Feb. 25, 2011, as a “ritual” in which Desdunes and Wyler “played an active part in the kidnapping process,” Bonavia said that the two were hazed.
“Whether a person who is hazed consents to that activity — I protest that,” Bonavia said. “I’ve been sitting here listening to this case for three days now, and this has been brought up multiple times. We’ve asked them, did you consent? Did George consent?”
Regardless of the testimonies of Wyler or the pledges, Bonavia, citing a case settled in 2010, said that there is no question as to whether or not hazing is consensual. The very nature of hazing, he said, means that it is forced.
“Consent is not a valid defense. It would be completely illogical to say hazing doesn’t apply where the victim — the person who suffers physical injury, or in this case, dies — consents,” Bonavia said. “That’s what hazing is — it is against public policy. There’s a reason why it’s illegal.”